Implications
The issue is now ripe for Supreme Court review. In fact, a
certiorari petition had been filed with the Supreme Court for
review of the Ninth Circuit's Maui decision. A
petition was also filed challenging the Fourth Circuit's
decision in Upstate Forever. Until the issue is
resolved, practitioners and the regulated community should be aware
of whether their particular jurisdiction may apply the groundwater
conduit theory. Depending on the jurisdiction, there can be very
different CWA permit requirements placed on the same types of
businesses for the same kinds of discharges. This is a critical
issue for companies whose operations can result in discharges to
groundwater through spills, accidental discharges, and seepage from
retention ponds. Under the groundwater conduit theory, these
discharges are subject to regulation under the CWA when pollutants
migrate through groundwater to navigable waters. Therefore,
businesses should consider whether they are
