The basic prohibition of the clean water act

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 175-250

175

Chapter IV:

THE BASIC PROHIBITION OF

THE CLEAN WATER ACT

A. INTRODUCTION

For most purposes, the obligations of a water pollution source under the

Clean Water Act (CWA) ca n be understood by reference to three sentences

in the Act: §301(a) and the rst sentences of §§402(k) and 404(p). Section

301(a) establishes that with certain limited exceptions, the discharge of a

pollutant from a point source to navigable waters by any person is unlawf ul.

Sections 402(k) and 404(p) establish that such a discharge is illegal unless

it is in compliance with a permit issued under §402 or §404. Reading the

sentences together, the discharge of a pollutant from a point source to navi-

gable waters by any person is illegal unless it is either excepted in §301(a) or

in compliance with a permit issued under either §402 or §404.

us, a statute of over 100,000 words apparently can be reduced to a sim-

ple sentence. Unfortunately, the sentence does not tell all. Subsection 301(a)

states that “[e]xcept as in compliance with this section a nd sections [302,

306, 307, 318, 402, and 404] of this title, the discha rge of any pollutant by

any person sha ll be unlawful.” For subsection (a) of §301 to be completely

understood, t he remainder of §301, the denitions in §502 of the terms

used in §301(a), and the substance of §§302, 306, 307, 318, 402, and 404

also must be understood. e rst sentence of §402(k) states: “Compliance

with a permit issued pursuant to this section shall be deemed compliance,

for the purpose s of sections [309] and [505] of this t itle [the enforcement

sections], with sections [301, 302, 307, and 403] . . . .” For §402(k) to be

completely understood, the rather long and complex §402, including several

other referenced sections of the Act, must be understood. e same is true for

§404(p), which is very simila r to §402(k). Dauntingly, §404 is even more

complex than §402.

Stepping back from the statute’s web, an analysis of the Act’s requirements

begins with the question: Does a pollution source discharge a pollutant as

prohibited under §301(a) and, if so, must that discharge be authorized by a

permit? Answering this question does not require an intimate k nowledge of

176 Water Pollution Control, 2d Edition

the statute, but it does require reference to many of the denitions contained

in §502, start ing with the denition of the term “discharge of a pollutant.”

at inquiry is the subject of t he remainder of this chapter. If a pollution

source requires a §402 permit, the next question that a rises is what require-

ments must be imposed in the permit? at is the subject matter of Chap-

ters V and VI. If a discharge requires a §404 permit, the issues raised are

addressed in Chapter XII.

e following cases and notes parse the wording of §301(a) as dened in

§502. is material illustrates the complexity of interpreting not just the

CWA, but al l environmental statutes, a process that always begins with an

examination of the precise wording of the statutory provision. If a provision’s

meaning is not clear on its face, many canons of interpretation have been

developed to assist interpreting it. For instance, the statute may be interpreted

to carry out its purpose to be in harmony with other provisions in the statute.

If these inquiries do not decide the question, the interpreter may resort to

the provision’s legislative history, although reliance on legislative history has

somewhat fallen out of favor. As you learned in Chapter III, the interpreta-

tion of a statute by its administering agency may be relevant or even decisive

under Chevron, U.S.A ., Inc. v. Natural Resources Defense Council, 467 U.S.

837, 14 ELR 20507 (1984), as modied by United States v. Mead Corp., 533

U.S. 218 (2001). Of course, c ase law pert aining to the statutory provision

will be helpful—most of the time. E xamine the interpretive devices cour ts

follow in the opinions printed throughout this chapter and later in this book.

Study rst the wording of § 301(a) and then the relevant denitions

contained in §502. Ask yourself why the following materials a nd cases are

included at this point. If you understand how they relate to and i lluminate

§301(a), you are ready to work on Problem 2, which returns to the shores of

once beautiful Lake Between, and Problem 3, which explores a challenging

denitional question.

Althoug h §301(a) is t he basic prohibition of the C WA, t here are other

prohibitions in the statute. Section 405(e), for i nstance, m akes it unlaw-

ful to dispose of sewage sludge from publicly owned treatment works

(POTWs) t hat t reat domestic sewage, except in accordance with releva nt

U.S. Environmental Protect ion Agency (EPA) regulat ions. See, e.g., United

States v. Hagberg, 207 F.3d 569, 30 ELR 20436 (9th Cir. 2000). Section

311 a lso prohibits the d ischarge of oil or hazardous substance s into waters

of the United States or the conti guous zone or onto t he shoreline. See infra

Chapter X III.

The Basic Prohibition of the Clean Water Act 177

B. “DISCHARGE OF A POLLUTANT”

Section 301(a) provides that “[e]xcept as in compliance with this section

and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the dis-

charge of any pollutant by any person sha ll be unlawful.” W hile t he term

“discharge of any pollutant” may seem straightfor ward, it masks a myriad of

questions and begins a repeated journey to §502, t he denition section of

the CWA. ere, the “discharge of a pollutant” or the “d ischarge of pollut-

ants” are dened as “any addition of any pollutant to navigable waters from

any point source.” 33 U.S.C. §§1251-1387. Notice that the terms dened in

§502(12), “discharge of a pollutant” or “discharge of pollutants” a re some-

what dierent than the “discharge of any pollutant” used in §301(a) (empha-

sis added). is dierence, however, has not given courts the slightest pause

in applying the denition to the latter phrase. us, the elements of the basic

CWA oense are: (1) the addition of (2) a pollutant (3) to navigable waters

(4) from a point source (5) by any person, unless authorized by a permit

(meaning a pollution source has a permit and is in compliance with it). Most,

but not all, of t hese elements are de ned in §502. A pollution source must

violate all of these elements to violate §301(a).

EPA’s denition of “discharge of a pollutant” is found in the Code of Fed-

eral Regulations (C.F.R.) at 40 C.F.R. §122.2 (2007), where the Agency also

introduces the concept of the “indirect discharger”:

CODE OF FEDERAL REGULATIONS

40 C.F.R. §122.2 (2007)

Discharge of a pollutant mea ns:

(a) Any addition of any “pollutant” or combination of pollutants to “waters

of the United States” from any “point source,” or

(b) Any addition of any pollutant or combination of pollutants to the waters

of the “contiguous zone” or the ocean from any point source other tha n a

vessel or other oating craft which is being used as a means of transportation.

is denition includes additions of pollutants into waters of the United

States from: surface runo which is collected or channeled by man; discharges

through pipes, sewers, or other conveyances owned by a State, municipal-

ity, or other person which do not lead to a treatment works; and discharges

through pipes, sewers, or other conveyances, leading into privately owned

treatment works. [“Discharge of a pollutant”] does not include an addition

of pollutants by any “indirect discha rger.”