Sustainability and Sustainable Development
More on Water: CWA Point Source Redefined
2018 July VOL 16 Issue 7
Here is an introduction to a topic that EH&S professionals in Arizona should be very concerned about because, for the first time, it appears that one of the circuit courts has found that groundwater can be regulated under the Clean Water Act of 1972 (CWA). In this interpretation of how that was found to be true, the court based their opinion on very narrow circumstances; however, as with every environmental statute, case law tends to expand as other cases (and other circuit courts), find more law suits filed claiming applicability of the statute to broader and broader circumstances.
Thus, the reason I have chosen to share this with you in the Journal is because it should serve as a "heads up". You need to be aware that, even though this particular case was in Hawaii where the "point source" was discharging to groundwater that dumped into the Pacific Ocean, it is most likely that (lawyers in) other states will now find that there are reasons to look at this new "point source" application for discharges to arroyos (ephemeral or not), and streams, ponds or lakes---especially in western states like Arizona---and there will be more "cases" that apply the CWA to aquifers.
Credit goes to the Marten Law Group's Meline MacCurdy for bringing this to our attention, and now to yours for future reference. You can find out more at martenlaw.com (6/21/18). But remember: as EH&S professionals, we must keep up with the ever-changing state of the laws and statutes that are in a constant state of "change"---now you can add the CWA to your list of laws that may have an impact on groundwater management in the future. Here's Meline's excellent introduction and summary of her paper:
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