Introduction

• Author: Jeffrey G. Miller
• Profession: Professor Emeritus, Pace Law School
• Pages: 17-20

xvii

Introduction

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.