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Plain Meaning, Precedent, and Metaphysics: Interpreting the “Addition” Element of the Clean Water Act Offense

September 2014

Citation: 44 ELR 10770

Issue: 9

Author: Jeffrey G. Miller

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable 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 program protecting wetlands. This Article examines the interpretation of “addition” within the CWA. It suggests a definition 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.

Jeffrey G. Miller is Professor of Law Emeritus at Pace Law School.

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