Yesterday,
Judge William Young ruled that discharges to groundwater are
not subject to Clean Water Act jurisdiction, even if they
ultimately reach surface waters that are unambiguously waters of
the United States. He did not wade into the murky waters, as it
were, of the or any of the various judicial theories for or against
jurisdiction. Instead, he took a simpler path.
As Judge Young noted, all of the various Circuit Court decisions
on this issue were rendered before EPA issued its Interpretive Statement concluding that the CWA
does not regulate discharges to groundwater. He then upheld the
Interpretive Statement on the basis of Chevron deference.
I think that Judge Young got it right. It's difficult for
anyone to argue with a straight face that the CWA is unambiguous.
Thus, the only question is whether EPA's interpretation is
reasonable under the statute. It's important to remember that
the question is not whether EPA is right; the question is whether
its
