Page 124 Environmental Crimes Deskbook 2nd Edition
Prohibited discharges take two main forms: point source and nonpoint source emissions. Point source
discharges are discrete discharges from the end of a pipe or channel, a shovel blade, or similar source.
Nonpoint source discharges are generally stormwater discharges owing from developed or undeveloped
property, city streets, suburban lawns, and farm elds.2
With some exceptions, the civil aspects of the CWA are implemented and enforced by the U.S. Environ-
mental Protection Agency (EPA). e principal exception is the CWA’s statute’s prohibition against lling
wetlands, which falls under the regulatory authority of the U.S. Army Corps of Engineers (the Corps), with
oversight by EPA. is division of regulatory authority signica ntly complicates enforcement of the law.3
e CWA4 prohibits “the discharge of any pollutant by any person,” except in compliance with its terms.5
is broad prohibition is somewhat narrowed by the dened terms in this phrase, but each of those terms
contains multiple dened and circular references. Ultimately, the CWA’s scope—and thus the scope of the
U.S. Department of Justice’s (DOJ’s) potential criminal jurisdiction—is broad. To aid the reader in under-
standing the reach of this phrase, the dened terms appear in bold in the following discussion.
e term “person” is inclusive and does not limit the scope of the CWA. It refers to “an individua l,
corporation, partnership, association, [s]tate, municipality, commission, or political subdivision of a [s]tate,
or any interstate body.”6 e denitions of “state” and “municipality” are equally broad. “State” refers to
“a [s]tate, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, Ameri-
can Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacic
Islands.”7 A “municipality” is
a city, town, borough, county, parish, d istrict, association, or ot her public body created by or pur suant to [s]
tate law and havi ng jurisdiction over disposal of sew age, industrial wastes, or other wastes, or a n Indian tribe
or an authorized I ndian triba l organization, or a designated a nd approved management a gency under section
1288 of the CWA.8
Other dened terms place some limits on the expansive reach of the law. For example, “discharge of a
pollutant” is dened as “any addition of any pollutant to navigable waters from any point source” or “any
addition of any pollutant to the waters of the contiguous zone or the ocean from a ny point source other
than a vessel or other oating craft.”9
e phrase “point source” is dened in turn to cover “any discernible, conned and discrete convey-
ance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete ssure, container,
rolling stock, concentrated animal feeding operation, or vessel or other oating craft from which pollutants
are or may be discharged.”10 A “pollutant” is dened as “dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioact ive materials,
2. At the time the CWA was rst passed, point source discharges from industrial or municipal solid waste treatment facilities constituted 85%
of all water pollution and were of signicantly greater concern to Congress than nonpoint source discharges. See William Ruckelshaus, A New
Shade of Green, www.wsj.com/article/SB10001424052702303410404575151640963114892.html (last visited May 29, 2013). As a result,
the CWA establishes a fairly strict regime for point source discharges but largely leaves control of nonpoint source discharges to the states. As
a result, there are few criminal prosecutions related to nonpoint source discharges, and this chapter does not discuss them in detail.
3. For a more complete discussion of this complexity, see M S L R, W D, (3d Ed., 2009).
In addition, the United States Coast Guard has a role in enforcement of the CWA, primarily as it applies to vessels and marine-transportation-
related facilities, as well as in the coastal zone of the United States. e denition of transportation-related facility is established under a
Memorandum of Understanding between the Secretary of Transportation and the Administrator of the EPA. 40 C.F.R. pt. 112, app. A. e
5. Id. §1311(a), CWA §301(a). As described below, the primary avenue for lawful discharges is through the CWA permit system. However,
Section 311 of the CWA (33 U.S.C. §1321
) specically prohibits the discharge of oil and hazar
dous substances into (1) the navigable waters
of the United States, (2) the U.S. contiguous zone, and (3) the U.S. Exclusive Economic Zone (EEZ). For a more detailed discussion of this
provision of the CWA, see infra Section II.D.3 of this Chapter.
6. Id. §1362(5), CWA §502(5).
7. Id. §1362(3), CWA §502(3).
8. Id. §1362(4), CWA §502(4).
9. Id. §1362(12), CWA §502(12).
10. Id. §1362(14), CWA §502(14).