Sixth Circuit Holds Clean Water Act Does Not Require Permits For Discharges To Groundwater

On September 24, 2018, the US Court of Appeals for the Sixth Circuit ruled that the Clean Water Act (CWA) does not require a National Pollution Discharge Elimination System (NPDES) permit for the discharges of pollutants to groundwater, even where those pollutants eventually reach navigable waters. The answer to the question of whether groundwater discharges are subject to CWA permitting requirements could have substantial and far-reaching consequences for many industries and could sweep coal ash, pipeline spills and agricultural runoff, among others, under the CWA's jurisdictional reach.

Moreover, the decision creates a circuit split with prior decisions from the Ninth and Fourth Circuits reaching the opposite conclusion, increasing the likelihood that the Supreme Court will make the ultimate decision on this issue. In those earlier cases, the appellate courts ruled that the CWA indeed requires NPDES permits for discharges of pollutants that flow through