Plain Meaning, Precedent, and Metaphysics: Interpreting the 'Addition' Element of the Clean Water Act Offense
| Date | 01 September 2014 |
| Author |
44 ELR 10770 ENVIRONMENTAL LAW REPORTER 9-2014
A R T I C L E S
Plain Meaning,
Precedent, and
Metaphysics:
Interpreting the
“Addition”
Element of the
Clean Water Act
Offense
Jerey G. Miller
Jerey G. Miller is Professor of Law
Emeritus at Pace Law School.
Summary
e Clean Water Act (CWA) prohibits addition of any
pollutant to navigable waters from any point source
by any person without a permit. Surprisingly, the
rst element of this prohibition, “addition,” remains
undened. It has been interpreted broadly by regu-
lators and judges to expand the prohibition to such
an extent that it threatens to capture innocent people.
EPA in particular has confused “addition” with “nav-
igable waters” to such an extent that it threatens to
eviscerate half of the CWA’s regulatory strategies and
programs: water quality standards and the §404 pro-
gram protecting wetlands. is Article examines the
interpretation of “addition” within the CWA. It sug-
gests a denition that would not unduly expand the
provision nor emasculate EPA regulatory programs. It
rejects EPA’s unitary water theory in favor of a more
workable solution.
This Article examines the meaning of the simple
word “addition” in the rst element of the Clean
Water Act (CWA)1 prohibition ag ainst any addi-
tion of any pollutant to navigable waters from a ny point
source by any person, unless in compliance with a permit.
Neither the U.S. Congress nor the U.S. Environmental
Protection Agency (EPA) has dened “addition” in this
context. EPA and t he courts have interpreted the element
broadly to expand the oense. Some of their broad inter-
pretations threaten to make felons of innocent persons
owning a particular class of point sources: those convey-
ing pollutants added by others to navigable waters. EPA’s
conation of “addition” with “navigable waters,” including
its theory that all navigable waters are one entity, threatens
to eviscerate half of the CWA’s reg ulatory strategies and
programs: water quality standards, one of the CWA’s two
grand strategies for pollution control; and §404, one of the
CWA’s t wo permit programs for assuring water quality.
e Article examines administrative and judicial interpre-
tations of “addition” as an element of the CWA. It suggests
a de nition that ts all appropriate fact situations, while
avoiding both threats to innocent point source owners and
to the viability of the water quality standards and wetlands
protection programs. It rejects the need for and legality of
EPA’s theory of unitary navigable water, EPA’s water trans-
fer rule ba sed on that theory, and much of EPA’s “outside
world” theory of “addition.”
I. No Statutory Definition
Section §301(1) prohibits “the discharge of any polluta nt
by any person,”2 unles s in compliance with several listed
sections. e l isted sections authorize the issuance of
two types of CWA permits3 and specify their substantive
requirements. Section 502(12) denes “discharge of a pol-
lutant” to mean “any addition of any pollutant to naviga-
ble waters from any point source.”4 In sum, the subsection
1. Clean Water Act (CWA), 33 U.S.C. §§1251-1387, ELR S. FWPCA
§§101-607.
2. 33 U.S.C. §1311(1).
3. Permits issu ed pursuan t to §402, 33 U.S.C. § 1342, regul ate water pol-
lution; per mits issued pursua nt t o §40 4, 3 3 U. S.C. §1344, regulat e
filling 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,” the denition in §502(12) arguably does not
apply to the phrase used in §301(a). However, cour ts routinely refer to
§502(12) as dening “discharge of a pollutant” in §301(a), without noting
the dierence. (Emphasis added throughout.) See, e.g., Committee to Save
Mokelumne River v. East Bay Mun. Dist., 13 F.3d 305, 307, 24 ELR 20225
(9th Cir. 1993); Apalachicola Riverkeeper v. Taylor Energy Co., LLC, 2013
for her assistance in the initial research and analysis for the Article.
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
9-2014 NEWS & ANALYSIS 44 ELR 10771
prohibits: (1)any addition (2)of any pollutant (3)to navi-
gable waters (4)from any point source (5)by any per son,5
except in compliance with a CWA permit. Justice Ruth
Bader Ginsburg has called this the “core command “of
the CWA.6
is A rticle, the rst in a series of ve, examines how
EPA and the courts have interpreted the prohibitory clause
“addition”—a common noun form of a verb with no statu-
tory denition—from 1972 to 2013.7 It seeks to provide a
denitive analysis of the term “addition”; a nd to explore
the methods that EPA and courts have used to interpret
the element.
Together, the ve articles examine how EPA and the
courts have interpreted the initial four jurisdictional ele-
ments of the water pollution control oense. Single articles
examine each of the rst four elements and a fth article
explores dierences in the techniques courts have used to
interpret them. e natures of the key words in these ele-
ments are very dierent: (1)“addition,” a common noun
form of a verb with no statutory denition; (2)“pollut-
ant,” a common noun with a statutory denition meaning
or excluding specic substances or classes of substances,
some of the included substa nces not tting the common
understanding of “pollutant;” (3) “navigable waters,” a
traditional Commerce Clause jurisdictional phrase with a
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, 5 ELR
20039 (N.D. Cal. 1974), ,
Sierra Club v. Leslie Salt Col, 412 F. Supp. 1096, 6 ELR 20363 (N.D. Cal.
1976), a’d, Leslie Salt Co. v. Froehlke, 578 F.2d 742, 8 ELR 20480 (9th
Cir. 1978).
5. “By any person” is not included in the §502(12) denition. It is the last
of the elements because it follows “discharge of a pollutant” in §301(a).
ere is little controversy about the interpretation of “person” as dened
in §502(5). e element is important because it connes violations of the
CWA to the consequences of human activities. Of course, it is dicult to
conceive of a civil or criminal oense without a human action.
6. 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 J G. M ., I E-
L: C M W P C 141
(2008).
7. e other elements in the clause are similarly worthy of individual analy-
sis, although space constraints preclude discussion of them in this Article.
Briey, “pollutant” is a common noun with a statutory denition mean-
ing or excluding specic substances or classes of substances, some of the
included substances not tting the common understanding of “pollutant.”
33 U.S.C. §1362(6). “Navigable waters” is a traditional Commerce Clause
(U.S. Const. Art. I, §8, cl. (3)) jurisdictional phrase with a short statutory
denition having nothing to do with waterborne transportation. 33 U.S.C.
§1362(7). e touchstone of “navigable water” for Commerce Clause ju-
risdictional purposes is use in waterborne navigation. See e Daniel Ball,
77 U.S. 557 (1870)). “Point source” is an articial construct with a statu-
tory denition, followed by lists of examples and exclusions. 33 U.S.C.
§1362(14). e key word in the nal element, “person,” is dened in the
normal legal sense (33 U.S.C. §1362(5)) and has led to virtually no litiga-
tion, although it has great importance. Disputes over the interpretations of
the rst four statutory terms have produced a steady stream of reported deci-
sions since the initial implementation of the statute. Even after four decades,
many of these issues are unresolved and new issues continue to surface.
short statutory denition having nothing to do with water-
borne transportation; and (4)“point source,” an articial
construct with a statutory denition, followed by lists of
examples and exclusions. e key word in the nal element,
“person,” is dened in the normal legal sense and has led
to virtually no litigation, although it has great importance.
Disputes over the interpretations of the rst four statutory
terms have produced a steady stream of reported decisions
since the initial implementation of the statute. Even after
four decades, many of these issues are unresolved and new
issues continue to surface.
“Addition,” the noun form of the verb “to add,” is the
action noun in the oense. Because oenses are actions,
“addition” is the central element in t he oense. is is
more easily seen by rearranging the oense as a sentence:
A person illega lly adds pollutants to navigable water from
a point source, unless he is in compliance with a permit.
“Person” is the subject of the sentence, “adds” is the verb,
and “pollutant” is the object. e rest of t he sentence is a
series of prepositional phrases: “to navigable water,” “from
a point source,” “in compliance,” and “with a permit.” All
of these prepositional phrases are adverbial phrases, modi-
fying “adds.” e last phrase, a defense rather than an ele-
ment of the oense, is a compound phra se, but is still an
adverbial propositional phrase modifying “adds.”
It is important to keep the centrality of “addition” in
mind when addressing the disputes considered in the Arti-
cle. Many of the defendants in these disputes raised “the
passive point source” defense. ey argued that their point
sources added no pollutants to water, but merely conveyed
already polluted water to downstream navigable water. e
point sources were wholly pa ssive, adding nothing that
was not in the water already, and the defendants owning
the point sources therefore did not violate the statute. is
argument subtly rearranges the structure of the oense,
making “point source” rather than “person” the subject
of the sentence. It would ma ke the sentence read: A point
source illegally adds pollutants to navigable water by any
person except in compliance with a permit. at, of course,
makes no sense. e oense, like all other oenses, prohib-
its human conduct and activity, not point source conduct
and activity.
Typical CWA cases involve industries or municipalities
adding their pollutants to navigable waters through their
own point sources (usually outfall pipes) from their own
operations. e §402 permit program is designed with
these cases in mind. Atypical ca ses involve persons adding
their pollutants to navigable waters through point sources
owned or operated by others. e statute explicitly deals
with many but not all of these atypical cases. For instance,
the pretreatment program in §307(b) controls industrial
discharges of pollutants into municipal sewers leading to
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
44 ELR 10772 ENVIRONMENTAL LAW REPORTER 9-2014
municipal treatment systems, from which they are added
to navigable waters municipal outfalls, a large part of this
atypical universe. ese “indirect” industrial dischargers
are not required to have §402 permits,8 but are directly
regulated by technology-based euent limitations for toxic
pollutants and other limitations designed to prevent inter-
ference with the municipal treatment systems into which
they are discharged or from passing through those systems
untreated. e municipal treatment systems’ subsequent
addition of the indirect industrial d ischargers’ treated pol-
lutants to navigable waters is regulated by §402 permits
issued to the municipalities, because the municipal systems
are designed and intended to collect, treat, and discharge
these industrial wastes. Similarly, both municipal and
industrial stormwater s ystems are required under §402(p)
to have permits. at is not remarkable: But for the munic-
ipal street and storm sewer systems, polluted stormwater
would not be discharged to nearby streams; and but for
the industrial operations, polluted stormwater would not
be discharged to nearby streams.
However, there is an entirely dierent category of these
atypica l case s, in which the pollutants passing through
point sources have no other rel ationship with t he point
sources or their owners. e fol lowing hypothetica l illus-
trates these cases. Water from a spring on A’s property
ows into a river adjoining that proper ty. A maintains a
farm road bordering t he river. Because land at the inter-
section of the spri ng ow and the river becomes muddy
and obst ructs the pas sage of vehicles, A inst alls a culvert
for the spring ow to the river, and elevates the farm road
to pas s over the cu lvert. Unknown to A, B is upset with
C, hi s former girlfriend, and her family because she w ill
no longer see him. C and her family live on t he river,
just downstream from A’s property, and u se it as their
water supply. In revenge for C’s renunciat ion of him, B
pours several bucke ts of a deadly poison into the spring
water just before it passes throu gh the culvert, so that t he
poison enters the river through the culvert, ows into C’s
water supply, and ki lls C and her fami ly. Who would the
prosecutor charge w ith homicide, A or B? Of cour se, she
would charge B because B is t he actor intend ing and act-
ing to cause the deaths. Would the prosecutor ch arge A,
because of t he role that his culvert played in the ac tion?
Of course not. She would not charge A becau se he did
not act toward C and his cu lvert was not a but-for cause
of the deaths. If A had never installed t he culvert a nd B
had poured poison in the spring ow, the same deaths
would have oc curred.
In t he above hypothetica l, who would the prosecutor
charge with the crime of water pollution, A or B? Should
she charge A, because A owned and operated the point
source from which t he pollutants owed into the river
and the owner or operator of a point source may add pol-
lutants to rivers from a point source only in complia nce
clude additions from “indirect sources,” which it, in turn, denes as sources
adding nondomestic waste to municipal sewage treatment plants.
with a CWA permit? No, because A did not act toward
the river with regard to the pollutants and was not a
but-for cause of their entry into the river. I f A had never
installed the culvert and B h ad poured pollutants into
the spring, t he same pollutants would have entered the
river. A would have had no rea son to k now he should
apply for a CWA p ermit to add pollutants to the river.
On the ot her hand, B acted toward t he river with regard
to t he pollutants, B was the but-for cause of the pollut-
ants entering the river, and B had every reason to know
that he should apply for a CWA permit to add polluta nts
to the river. B, not A or A’s point source, is the “any per-
son” who violated CWA §301(a); B added polluta nts to
the river from a point source. (Of course, if A installed
the culver t knowing that B’s poison would enter the river
more quickly and more completely, A would be complicit
with B’s oenses.9)
Courts, including the U.S. Supreme Court,10 have gen-
erally rejected the “passive point source” owner defense,
but only in cases in which t he point source owner was not
truly passive and without considering the above hypotheti-
cal or situations like it. Many decisions interpret “addi-
tion” broadly enough to convict the culvert owner in the
above hypothetical, even though treating him as a §301(a)
violator makes no sense and may even raise constitutional
issues.11 e point source owner in the hypothetical, how-
ever, is defended by recognizing that u nder §301(a), a per-
son must act to add pollutants to navigable water from a
point source. In the typical cases and most of the atypical
cases, the point source owners are not really passive, they
act to add pollutants to water where the pollutants would
not otherwise be; but for their actions, the pollutants would
not be in t he water.12 In our hypothetical, however, A is a
purely passive point source owner and is not a but-for cause
of adding poison to the river. If the culvert had not existed,
the poisons would still have entered the river and killed C
and her family. B is the only but-for cause of the pollutants
entering the river and the resulting deaths, and B added
pollutants to navigable water from a point source, even if
he did not own the point source.
9. Violations of the CWA are criminal felonies if they are knowing, criminal
misdemeanors if they are negligent, and may be civil oenses with no fault.
§309(c), 33 U.S.C. §1319.
10. In ,
541 U.S. 95, 105, 34 ELR 20021 (2004), the Court held that the passive
point source defense was “untenable.”
11. United States v. Apollo Energies, Inc. 611 F.3d 679 (10th Cir. 2010), in
which the court treated lack of causation and of mens rea as raising similar
constitutional issues. See also the helpful note by Alex Arensberg, Are Mi-
gratory Birds Extending Environmental Criminal Liability, 38 E L.Q.
427 (2011). Because §309(c) requires mens rea for criminal oenses and A
in our hypothetical has no level of mens rea, the constitutionality of crimi-
nal prosecution for a CWA oense without causation is unlikely to be an
issue. However, because civil liability under §309(a) or (b) is strict liability,
requiring no mens rea, a civil prosecution against A for violating §301(c)
without an act by A causing the violation is possible.
defendant pumped polluted donor water into unpolluted receiving water
and hence was a but-for cause of adding pollutants to the receiving water.
If the defendant had not acted, the pollutants would not have reached the
receiving water.
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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