PLF urges EPA to abandon the ‘conduit’ theory

Today, PLF filed comments in response to an EPA request on whether the agency should abandon its support of the so-called “conduit” theory of Clean Water Act liability. The conduit theory has been used recently by a number of federal appellate and district courts to extend Clean Water Act liability to discharges of pollutants that reach regulated surface waters through groundwater. In our comment letter, we explain that the conduit theory unravels the Clean Water Act’s framework of “cooperative federalism” by extending direct federal regulation to what amounts to “nonpoint-source pollution,” i.e., the type of pollution that Congress intended to leave to the states and other non-federal entities to address and remedy. We also make the points that expanding direct federal regulation to groundwater pollution, under the aegis of a conduit or similar theory, will exacerbate the already significant burdens that the Clean Water Act puts on landowners, while also impeding more effective and efficient non-federal efforts to clean up polluted groundwater.