Vol. 7 No. 2, Spring 2016; Muddy Waters: Why Polluted Groundwater Infiltrating Navigable Waters Should Not Be Excluded From National Pollutant Discharge Elimination System Permitting
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The debate over whether the Clean Water Act has jurisdiction over migratory groundwater in the same way that it does over navigable waters of the United States (regarding effluent standards) has left a wide split among courts attempting to interpret and apply the policy, goals, and language of the law. The problem lies in the difference between applying the law given its objectives and goals, or in a strict fashion using simply the language in the text of the Clean Water Act, while supplementing support from legislative and case law history. First in this Note, background information is provided regarding the history of the Clean Water Act , National Pollutant Discharge Elimination System (NPDES) permits and the U.S. Environmental Protection Agency regulation, navigable waters of the United States, and the relation of migratory groundwater to this process. What follows is a discussion of methods, rules, and rationales courts and legal authorities have used and provided when holding and not holding that pollutants to migratory groundwater which reach navigable waters of the United States should be regulated through NPDES permitting. Finally, there is a review as to the reason why the Clean Water Act does have jurisdiction over pollutants to migratory groundwater which reach navigable waters and a recommendation that such regulation should occur via NPDES permits.