Introduction
Author | Jeffrey G. Miller |
Profession | Professor Emeritus, Pace Law School |
Pages | 17-20 |
xvii
Introduction
is volume examines the six most critical words in the Clean Water Act1
(CWA). ose six words frame the elements of the water pollution oense:
the “discharge of any pollutant by any person,” unless in compliance with
several listed sections of the statute, CWA §301(a).2 e listed sections autho-
rize the issuance of two types of CWA permits3 and specify their substantive
requirements. e statute denes “discharge of a pollutant” in the oense
to mean: “any addition of any pollutant to navigable waters from any point
source,” CWA §502(12).4 In sum, the subsection prohibits: (1)any addition
(2)of any pollutant (3)to navigable waters (4)from any point source (5)by
any person, except in compliance with a CWA permit. Justice Ruth Bader
Ginsburg called this the “core command” of the CWA.5
e most critical words in the statute occur in the elements of the primary
oense6as single words or as two word phrases: addition, pollutant, navi-
gable waters, and point source. ose six words give meaning to the rst four
of the ve elements of the water pollution oense. e fth element, whose
key word is “person,” is important, but has not led to judicial or administra-
tive disputes.7 Without meeting all ve of the elements, water pollution does
1 33 U.S.C. §§1251 et seq.
2 33 U.S.C. §1311(a).
3 Permits issued pursuant to §402, 33 U.S.C. §1342, regulate water pollution, and permits issued
pursuant to §404, 33 U.S.C. §1344, regulate lling wetlands.
4 33 U.S.C. §1362(12). Because the term dened in §502(12), “discharge of a pollutant,” is not exactly
the same as the term used in §301(a), “the discharge of any pollutant,” it could be argued that the
denition in §502(12) does not apply to the phrase used in §301(a). However, courts routinely refer to
§502(12) as dening “discharge of a pollutant” in §301(a), without noting the dierence. (Emphasis
added throughout.) Committee to Save Mokelumne River v. East Bay Mun. Dist., 13 F.3d 305, 307
(9th Cir. 1993); Apalachicola Riverkeeper v. Taylor Energy Co., LLC, 2013 WL 3779166 (E.D.
La.); United States v. Bailey, 516 F. Supp. 2d 998 (D. Minn. 2007); Leslie Salt Co. v. Froehlke, 403
F. Supp. 1292, 1295 (N.D. Cal. 1974), rev’d in part & mod. in part on other grounds, Sierra Club v.
Leslie Salt Co., 412 F. Supp. 1096 (N.D. Cal. 1976), a’d, Leslie Salt Co. v. Froehlke, 578 F.2d 741
(9th Cir. 1978).
5 Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261, 298 (2009). e author
has called it elsewhere “the basic prohibition” of the CWA. See A P ., I
E L: C M W P C 141 (2008).
6 ere are secondary oenses in the statute, such as a civil oense for spills of oil and hazardous sub-
stances in CWA §311(b)(6), 33 U.S.C. §1321(b)(6).
7 “By any person” is not included in or addressed by the §502(12) denition. It is the last of the elements
because it follows “discharge of a pollutant” in §301(a). is volume does not focus on this element
because there is little controversy about the interpretation of “person,” which is dened in §502(5).
e element is important because it connes violations of the CWA to the consequences of human
activity. Of course, it is dicult to conceive of a civil or criminal oense without a human action.
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