Note By: Henry O. Cashen

A circuit split existed in determining whether a conveyance of pollutants through groundwater and into navigable water constituted a violation of the Clean Water Act. Although the Supreme Court attempted to resolve the issue in 2020, Notes Editor Henry Cashen argues that the Court’s guidance is insufficient to direct lower courts in their analyses. Cashen advocates for a mutli-factored balancing test to determine whether a direct discharge of a pollutant or its “functional equivalent” violates the Clean Water Act’s provisions, regardless of the conveyance method.

VOLUME 14 - 2021-2022 ISSUE 3

14 Ky. J. Equine, Agric. & Nat. Res. L. 3 (2022).

The Clean Water Act’s Illusion of Uniformity: A Siren’s Song

Note Written By: Henry O. Cashen

A circuit split existed in determining whether a conveyance of pollutants through groundwater and into navigable water constituted a violation of the Clean Water Act. Although the Supreme Court attempted to resolve the issue in 2020, Volume 15 Notes Editor Henry Cashen argues that the Court’s guidance is insufficient to direct lower courts in their analyses. Cashen advocates for a mutli-factored balancing test to determine whether a direct discharge of a pollutant or its “functional equivalent” violates the Clean Water Act’s provisions, regardless of the conveyance method.