March 21, 2013 Articles

Clean Water Act Math: When Addition Is Not Addition

The Supreme Court weighs in what constitutes "addition of any pollutant to navigable waters."

By Kenneth Anspach – March 21, 2013

Section 301(a) of the Clean Water Act (CWA), 33 U.S.C. § 1311(a), prohibits “the discharge of any pollutant by any person” without a National Pollution Discharge Elimination System (NPDES) permit. The term “discharge of any pollutant” is defined, in pertinent part, as, “any addition of any pollutant to navigable waters from any point source.” CWA, § 502(12), 33 U.S.C. § 1362(12). Thus, the CWA provides an expansive prohibition of pollution. However, the courts interpreting this prohibition have struggled with what constitutes the “addition of any pollutant.” For example, does water containing pollutants flowing from one location to another within the same or contiguous bodies of water constitute the “addition of any pollutant?” As set forth below, this question was answered by the U.S. Supreme Court on January 8, 2013, in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.,133 S. Ct. 710, 184 L. Ed. 2d 547 (2013).

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