Clean Water Act NPDES Developments in the Courts

Abstract:     
Although the Clean Water Act has been in effect for over thirty-three years, many aspects of the Act remain for the Supreme Court to define. In fact, the Court is still called upon to determine certain threshold questions about the Act’s scope and jurisdiction, permits, water quality standards and enforcement. One central question has been the definition of “navigable waters” as it relates to wetlands. The purpose of the Act is to protect the nation’s waters, and a logical question that the Court must address is “to what extent can wetlands be included as navigable waters?” Two cases have been instrumental in addressing this question, finding that wetlands must bear some connection to navigable waters or interstate commerce. These cases also serve to highlight the split amongst the circuits with regard to the connection between wetlands and navigable waters, i.e., is there a need for “adjacency,” “ecological connection” or “direct abutment?” Questions have also arisen with regard to pollutants and point sources and whether pesticides may be considered pollutants. Similarly, can mine shafts be considered point sources that discharge pollutants? Other sources of controversy among the key terms of the CWA include those involving concentrated animal feeding operations, ballast discharges, general permits, storm water permits and NPDES delegation. This article attempts to answer these questions.

Number of Pages in PDF File: 6

Keywords: clean water act, environmental law, water pollution, navigable waters, wetlands

JEL Classification: K32

Accepted Paper Series