Plain Meaning, Precedent, and Metaphysics: Interpreting the 'Point Source' Element of the Clean Water Act Offense

Date01 December 2015
12-2015 NEWS & ANALYSIS 45 ELR 11129
Plain Meaning,
Precedent, and
Interpreting the
“Point Source”
Element of the
Clean Water Act
by Jerey G. Miller
Jerey G. Miller is Professor Emeritus, Pace Law School.
is Article, the fourth in a series of ve, examines
the continuing struggles to dene “point source”
and “nonpoint source” under the Clean Water Act.
State regulation of nonpoint sources is neither perva-
sive nor robust, and most continuing water pollution
problems can be traced primarily to nonpoint sources.
EPA should dene nonpoint sources by regulation
and begin to expand the denition of point source by
incorporating established case law and Agency prac-
tice to bring more nonpoint sources into the point
source denition.
I. Introduction
Clean Water Act (CWA)1 §301(a) prohibits “the discharge
of any pollutant by any person” unless in compliance
with several listed sections.2 e listed sections authorize
the issuance of two types of CWA permits3 a nd specify
their substantive requirements. Section 502(12) denes
“discha rge of a pollutant” to mean “any addition of a ny
pollutant to navigable waters from any point source.”4 In
sum, the subsection prohibits (1)any addition (2)of a ny
pollutant (3)to navigable waters (4)from any point source
(5)by any person except in complia nce with a C WA per-
mit.5 Justice Ruth Bader Ginsburg has called this the
CWA’s “core command.”6
is Article, the fourth in a series of ve, examines how
the U.S. Environmental Protection Agency (EPA) and the
courts have interpreted the meaning of the term “point
source,” the fourth jurisdictional element of the water pol-
lution control oense. In the CWA, “point source” is an
articial construct with a statutory denition, followed by
lists of examples and exclusions. Disputes over the interpre-
tations of the statutory term have produced a steady stream
of reported decisions since the initial implementation of
the statute in 1979. Even after four decades, many of these
issues are unresolved and new issues continue to arise.
1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607. e basic con-
tours of the statute were established in the Federal Water Pollution Control
Act Amendments of 1972, Oct. 18, 1972, Pub. L. No. 92-500, 86 Stat.
3. e U.S. Environmental Protection Agency (EPA) issues permits under
CWA §402, 33 U.S.C. §1342, to regulate the discharge of pollutants; the
U.S. Army Corps of Engineers (the Corps) issues permits under CWA
§404, 33 U.S.C. §1344, to regulate the lling of wetlands.
5. ree earlier articles in   focused indi vidually on the
§301(a) water pollution control oense elements “addition,” “pollutant,”
and “navigable waters.” See Jere y G. Miller,    
  
, 44 ELR 10770 (Sept. 2014); Jerey G. Miller,  
   
 , 44 ELR 10 960 (Nov. 2014); and Jerey G.
Miller,     
, 45 ELR 10548 (June
6. Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S.
261, 298, 39 ELR 20133 (2009). e author has elsewhere called it “the
basic prohibition” of the CWA. J G. M  ., I
 E L: C  M  W P
C 141 (2008).
         
a delight to work with.
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
II. Congressional Action: The Statutory
Def‌inition and Legislative History of
Point Source
A. Statutory Def‌inition
Section 502(14) of the CWA provides that:
“[P]oint source” means a ny disc ernible, conned and
discrete conveyance, including but not limited to any
pipe, ditch, chan nel, tunnel, conduit, well, discrete s-
sure, container, rolling stock, concentrated anima l feed-
ing operation, or vessel or other oating craft, from which
pollutants a re or may be discharged. is term does not
include agricultural di scharges and return ows from irri-
gated agriculture.7
e denition of point source is the most gra mmati-
cally complex of the elements’ statutory denitions. It has
a compound structure beginning with the denition, a
“discernible, c onned and discrete conveyance”; followed
by an inclusive list of 12 examples; and ending with two
exceptions. e comparative structural complexity of the
point source denition reects that, unlike the other ele-
ments, it is a statutory construct with no meaning apart
from its st atutory denition. Before the enact ment of the
CWA, “addition” and “pollutant” each had plain mean-
ings and “navigable waters” had both a plain and a legal
meaning. However, while both “point” a nd “source” had
plain meanings before enactment of the CWA, their com-
bination into one term did not have a preexisting plain
meaning. “Point” in its most pertinent denition means
“a particular spot, place, or position in an area or on a
map, object or surface”; and “source” in its most pertinent
denition means “a place, person or thing from which
something comes or can be obtained.”8 Signicantly, these
two words, alone or together, do not suggest a “discernible,
conned and discrete conveyance,” the statutory denition
of “point source.
e other elements are on/o switches, determining
whether a discharge is regulated by the CWA in one of its
two permit programs. If a discharge lack s an “addition,
a “pollutant, or a “navigable water,” the CWA does not
regulate the discharge, rega rdless of whether it is through
a “point source.” By contrast, “point source” is a sw itch
that shuttles discharges between dierent CWA schemes.
If a discharge meets the other elements and is through a
“point source,” it is regulated by one of the CWA’s two
permit programs. If a discharge meets the other elements
but is not through a “point source,” it may be regulated
by the CWA’s nonpoint source program. W hile the CWA
does not mention non-additions, non-pollutants, or non-
navigable waters, it does mention “nonpoint sources”9 and
provides for programs regulating them. Despite the impor-
8. O E D,
9. CWA §§105(d)(1), 201(c), 208(b)( 2)(F), 319(a) & (b); 33 U.S.C.
§§1255(d)(1), 1281(c), 1288(b)(2)(F), 1239(a) & (b).
tance of nonpoint sources to the structure of the statute and
to understa nding the term point source, the statute does
not dene nonpoint source. Nor does EPA dene nonpoint
source in its permit program regulations, although it does
so in informal documents.10
Although the U.S. Congress did not dene “point” or
“source” generally, it dened “source” for the limited pur-
pose of C WA §306,11 the section requiring EPA to estab-
lish technology-based standards for new sources.12 Section
306(a)(3) denes a source as a building or facility from
which pollutants originate. is “source” is a new manufac-
turing facility, not a point source—that is, a new discharge
pipe leading from the faci lity to navigable water.13 is
makes sense, for new sources are subject to higher levels of
pollution control than are exist ing sources. It is easier and
cheaper for new sources to design and build facilities with
state-of-the-art pollution control than for existing sources
to retrot existing facilities with it, particula rly since new
facilities can often be designed to use less water and hazard-
ous materials, thus generating less pollutants to treat. e
same rationale would not apply if the newly constructed
source was merely the pipe that carries pollutants from
the facility to navigable water. us, “source” in both the
dictionary denition and in the limited CWA denition
of “new source” connotes the origin of pollutants. “Point
source,” on the other ha nd, connotes the conveyance of
pollutants from their origin to their addition to navigable
water. In other words, point source is the place of the addi-
tion of pollutants to navigable water rather than the origin
of the pollutants.14 When we interpret point source, we are
not searching for the plain meaning of “point,” “source,” or
“point source,” but for the plain meanings of “discernible,”
“conned,” “discrete,” “conveyance,” “pipe,” “tunnel,” or
other words used in the statutory denition of the term.
Indeed, the plain meaning of “source” obscures the con-
gressional denition of “point source.
If the denition of point source was straightforward
and clear, the statute’s failure to dene point, source, and
nonpoint source would pose no problems. Unfortunately,
on close reading, the denition is far from clear. First, it
denes a point source as a conveyance “from which pollut-
ants are or may be discharged.” is makes the denition
circular, because the CWA in turn denes “discharge” as
any addition of any pollutant by any point source. Second,
it denes point source as a conveyance, but lists a concen-
trated animal feeding operation (CAFO) as an example of
a point source, although a CAFO is not a t ypical convey-
ance. Instead, a CAFO is an agricultural facility more like
12. CWA §306(a)(3), 33 U.S.C. §1316(a)(3).
13. Mahelona v. Hawaiian Elec. Co., Inc., 418 F. Supp. 1328, 1334-35, 7 ELR
20031 (D. Haw. 1976).
14. South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95,
105, 34 ELR 20021 (2004). e denition of point source “makes it plain
that a point source need not be the original source of the pollutant’; it need
only convey the pollutant to ‘navigable waters.’” Id. See also United States v.
Lucas, 516 F.3d 316, 332-33, 38 ELR 20041 (5th Cir. 2008); Dague v. City
of Burlington, 935 F.2d 1343, 1354, 21 ELR 21133 (2d Cir. 1991).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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