A curious appellate court decision has Pennsylvania environmental law practitioners scratching their heads about the status of certain waterways.

No, we do not reference the U.S. Supreme Court’s latest Clean Water Act decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, __ U.S. __ (2020) from May, where six of the nine justices held that
permits are required for discharges from a point source that travel through the “functional equivalent” of a conveyance through groundwater before reaching a jurisdictional, navigable “water of the United States.”

Rather, we refer to the June 12 decision by the Pennsylvania Commonwealth Court in Beishline v. Department of Environmental Protection, __ A.3d __ (Pa. Commw. Ct. 2020). And instead of opining as to which waters are subject to regulation—after all, in Pennsylvania all waters, surface and ground, navigable and nonnavigable, are “waters of the commonwealth” under the state’s Clean Streams Law—the Commonwealth Court considered the issue of navigability in assessing private party water ownership rights.

I review this decision in my column for this month’s The Legal Intelligencer supplement, Pa. Law Weekly. Read more from “Navigability: It’s Not Just for the Federal Clean Water Act Anymore” by clicking here.