AuthorJeffrey G. Miller
ProfessionProfessor Emeritus, Pace Law School
is volume examines the six most critica l words in the Clean Water Act1
(CWA). ose six words frame the elements of the water pollution oense:
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 type s of CWA permits3 and specify their substantive
requirements. e statute denes “discharge of a pollutant” in the oense
to mean: “any add ition 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 a ny 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
oense6 as sing le 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 oense. 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 dened 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
denition in §502(12) does not apply to the phrase used in §301(a). However, courts routinely refer to
§502(12) as dening “discharge of a pollutant” in §301(a), without noting the dierence. (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 oenses in the statute, such as a civil oense 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) denition. 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 dened in §502(5).
e element is important because it connes violations of the CWA to the consequences of human
activity. Of course, it is dicult to conceive of a civil or criminal oense without a human action.

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