ATOMIZING THE CLEAN WATER ACT: IGNORING THE WHOLE STATUTE AND ASKING THE WRONG QUESTIONS.

• Author: Adler, Robert W.

1. INTRODUCTION II. THE CWA CONDUIT CASES: EXAMPLES OF STATUTORY ATOMIZATION A. "Navigable Waters" B. "Point Source" C. "Addition" of a Pollutant D. "From" and "Into" III. A FUNCTIONAL, WHOLE STATUTE APPROACH TO THE CONDUIT ANALYSIS A. The CWA Statutory Structure 1. The Qualified Discharge Ban 2. Permits for Regulated Sources of Pollutants 3. Controls Imposed Under Section 402 Permits B. Applying the Functional, Whole Statute Approach to the Conduit Cases 1. Relevance of the Term "Point Source" 2. Relevance of the Term "Navigable Waters" 3. Relevance of the Term "Addition" 4. Consistency with Overall Statutory Structure and Goals a. Point Versus Nonpoint Source Controls b. Uniformity and Efficacy of Technology-Based Controls c. Efficacy and Equity in Water-Quality Based Controls d. Additional Control Provisions IV. CONCLUSION: AVOIDING ATOMIZATION OF THE CWA AND OTHER LAWS "[W]ords are chameleons, which reflect the color of their Environment. ..."

   Judge Learned Hand (1)

1. INTRODUCTION

   The Federal Clean Water Act (2) (CWA) is a definitional quagmire. As a result, the U.S. Supreme Court, the lower courts, and the two federal agencies charged with implementing the law (3) have struggled to interpret its scope ever since its enactment in 1972. Indeed, as we approach the statute's half-century mark in just a few years, we still lack clarity about what would seem to be the most basic questions about its reach. That, in turn, has resulted in massive uncertainty for the federal and state agencies (4) that implement the law, businesses and landowners regulated by the statute, and members of the public Congress intended to protect. (5)

   Part of the problem lies in the fact that Congress drafted the CWA in ways that left both gaps and ambiguities in the statutory text, including the unexplained or poorly explained use of multiple terms for seemingly similar or identical issues. (6) That has caused protracted confusion in the agencies and the courts about issues such as the scope of waters covered by the CWA (7) and what activities cause an "addition of pollutants" to those waters. (8)

   Another part of the problem, however, is that the CWA's definitions can be so confusing that advocates and judges do not always agree even on how to articulate the issue to be decided. That sometimes prompts them to focus on discrete statutory terms without proper focus on the text of the statute as a whole. We call this "atomization" of the statute, in which excessive focus on individual words or phrases (the "atoms" or "molecules" in the text) prevents the reader from understanding how those words or phrases relate to the whole statute. That approach ignores Judge Hand's sound advice that "words reflect the color of their environment," (9) meaning they must be interpreted in full context rather than in isolation.

   Focusing only on discrete, isolated words, in turn, can cause courts to ask and answer the wrong questions. This explains how different federal courts have approached very similar sets of facts with so many different analytical approaches. (10) To be clear, this problem of statutory interpretation has nothing to do with the debate between textualism (11) and legislative intent (12) in statutory construction. Proponents of both of those schools of statutory analysis agree that proper statutory construction demands that individual words be read in pari materia with the statute as a whole, (13) or that microscopic analysis of the statutory atoms and molecules can obscure the shape and form of the whole statutory organism. (14)

   The most recent round of conflicting opinions exhibiting the tendency to atomize CWA statutory analysis, which the U.S. Supreme Court will attempt to resolve in the October 2019 Term, (15) involves the extent to which discharges to water bodies otherwise regulated by the statute require CWA permits if the pollutants are conveyed first through another medium, such as groundwater. (16) (For brevity, we refer to this conflicting line of decisions as the "conduit cases.") In attempting to resolve that question, various parties or courts have cast the issue alternatively as whether groundwater can be a "water of the United States" subject to regulation, (17) whether a conveying medium such as groundwater is a "point source," (18) whether conveying pollutants through groundwater constitutes an "addition" of pollutants to the waters of the United States, (19) or whether the answer to the question lies buried in the separate definition of "effluent limitation," the vehicle through which permitted discharges are controlled. (20) Interestingly, courts that ultimately ruled on both "sides" of the issue (to require or to prohibit regulation of particular activities under the statute) have fallen into the trap of resolving the issues by reference to isolated statutory parts rather than interpreting all relevant statutory provisions in concert. (21)

   Reading the CWA as an integrated whole, with individual statutory components construed in that context, results in a more sensible approach to the issues posed by the conduit cases. To be sure, this requires scrutiny of individual statutory words and phrases to ensure that all of the relevant provisions are considered in light of applicable statutory definitions. To derive a consistent set of principles that makes sense under the whole statute, however, requires an effort to logically assemble the constituent parts. Reference to either the statutory goals and objectives, or to the legislative history, is not essential in this set of cases to resolve ambiguities in the statute. Adding consideration of those factors, however, confirms that the most sensible reading of the statutory text as a whole in fact effectuates the CWA's objective and subsidiary goals, and the most pertinent portions of its legislative history.

   This Article presents such an analysis, with the dual goals of suggesting the most sensible resolution to the conflicting line of conduit cases and of highlighting the danger of statutory atomization in the context of the CWA and other complex statutes. Part II describes the conflicting line of conduit cases attempting to discern the scope of activities regulated by the CWA when a point source does not discharge pollutants directly into navigable waters. That analysis identifies specific examples of statutory atomization in the cases and how that tendency has caused some courts to ask the wrong questions, leading to results that do not make sense when viewing the whole statute. Part III posits a method of reading the component statutory parts in pari materia, leading to a more sensible and consistent reading of the whole statute. In addition to helping resolve this particular line of cases, it suggests a mode of CWA analysis that might help to resolve some of the other jurisdictional debates that have impeded consistent and effective implementation of the CWA. Part IV concludes by arguing that, regardless of whether one adopts a mode of statutory construction that focuses exclusively on the statutory text or one that also relies on legislative history to ascertain legislative intent, the analysis should avoid atomization of statutes in favor of one that harmonizes discrete bits of statutory text with the language and structure of the statute as a whole.

2. THE CWA CONDUIT CASES: EXAMPLES OF STATUTORY ATOMIZATION

   For almost fifty years, courts have struggled with a seemingly simple question: does the discharge of a pollutant through a nonnavigable medium, and eventually into navigable waters, require a CWA permit? These cases have involved not only discharges through groundwater and intermittent streams, but also non-aquatic conduits such as a mine shaft drain tunnel system, (22) concentrated animal feeding operation fields (CAFO), (23) leaks from a "closed" irrigation system, (24) and pesticide releases into the air. (25) Unfortunately, this growing body of case law has not yielded a corresponding degree of clarity on the issue. This lack of consensus is clearly demonstrated by the current circuit split, with the Fourth and Ninth Circuits holding that discharges from a point source through groundwater into navigable waters require CWA permits, (26) and the Sixth Circuit holding the opposite. (27)

   Why has nearly five decades of CWA jurisprudence not led to consistent analysis of this issue? Just as the conduits have assumed different physical forms, the courts have applied multiple analytical techniques to resolve the question. A common theme, however, is the tendency to atomize the statute into discrete chunks in ways that do not account properly for the overall statutory text and structure. (28) Section 301(a) of the Act succinctly provides the core of the CWA's regulatory authority: except in compliance with various permitting and substantive control provisions, "the discharge of any pollutant by any person shall be unlawful." (29) Inserting the statutory definition of "discharge of [a] pollutant," (30) the prohibition reads: "the [addition of any pollutant to navigable waters from any point source] by any person shall be unlawful." (31) Thus, to determine whether CWA permitting jurisdiction applies, agencies and courts must address multiple interconnected issues: whether there is an "addition" of a "pollutant" from a "point source" to a "navigable water." Each of the key terms of this provision has, at times, featured prominently in judicial analysis of conduit-type discharges. Here we will show how undue focus on these individual terms, isolated from the text and structure of the statute as a whole, has led to disparate, and we believe sometimes incorrect, results.

   1. "Navigable Waters"

      The most persistent and contested CWA jurisdictional battles have involved attempts by the Supreme Court and lower federal courts to define "navigable waters" in the context of the Army Corps of Engineers (Corps) dredge and fill program. (32) Perhaps because this...