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Where the Water Hits the Road: Recent Developments in Clean Water Act Litigation

May 2003

Citation: 33 ELR 10369

Issue: 5

Author: James R. May

The last 18 months have produced particularly interesting juridical and administrative pronouncements in the areas of Clean Water Act (CWA or Act) jurisdiction, permits, standards, citizen suits, and other enforcement. On the jurisdictional front, we learned that "deep ripping" constitutes an "addition" of a pollutant by a "point source." We also learned that 25-year-old cases from the U.S. Court of Appeals for the D.C. Circuit hold less sway insofar as "addition" includes polluted water diverted from one water to another, and "pollutant" includes parts, foods, and medicines from fish farms and other operations that are discharged, unless exempted. We learned more about when combined animal feeding operations (CAFOs) are point sources. Post Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), we learned "navigable water" still means more than strictly navigable for commerce, and includes wetlands adjacent or hydraulically connected to non-navigable tributaries that flow into actual navigable waters.

Permit issues were less eventful. Courts still defer broadly to the U.S. Environmental Protection Agency (EPA) establishment of technology-based standards. Pollutants contemplated but not regulated by agencies can be discharged without a permit, and water quality standards not addressed by a permit can be violated under the Act's "permit shield" provision. States can waive the requirement that renewal applications need be submitted 180 days before permit expiration. Under limited circumstances, EPA must withdraw delegated national pollutant discharge elimination system (NPDES) permitting authority.

Jim May is a Professor of Law at Widener University. The research assistance of Amy Shellenberger and Jennifer Murphy Widener is acknowledged with gratitude. This Article reports developments for the 18-month period ending March 20, 2003.

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