Discharging the Clean Water Act's NPDES Requirements: Why the "Unitary Waters" Theory Does Not Hold Water
By Matthew Duchesne
INTRODUCTION
The Clean Water Act (the “Act”) makes it unlawful for any person to discharge a pollutant from a point source into the navigable waters of the United States without a permit. In most cases, such permits are known as NPDES permits--an abbreviation for the National Pollutant Discharge Elimination System established by the Act. In South Florida Water Management District v. Miccosukee Tribe of Indians, the Supreme Court was asked to decide whether “the waters of the United States” should be viewed as a unitary whole, such that no NPDES permit is statutorily required if a pollutant is merely transported via a point source from one body of water to another.
The Supreme Court refused to decide this issue in the first instance, noting that neither the petitioner nor the Solicitor General, in an amicus brief filed in support of the petitioner, had “raised the unitary waters approach before the Court of Appeals or in their briefs respecting the petition for certiorari.” Thus, the “unitary waters” argument remains an open issue. But, as detailed below, it is not a difficult issue to resolve. The “unitary waters” approach to NPDES permitting is supported neither by the statute's text, structure or legislative history nor by case law, and it flatly contradicts the statute's fundamental objectives.
The Clean Water Act (the “Act”) makes it unlawful for any person to discharge a pollutant from a point source into the navigable waters of the United States without a permit. In most cases, such permits are known as NPDES permits--an abbreviation for the National Pollutant Discharge Elimination System established by the Act. In South Florida Water Management District v. Miccosukee Tribe of Indians, the Supreme Court was asked to decide whether “the waters of the United States” should be viewed as a unitary whole, such that no NPDES permit is statutorily required if a pollutant is merely transported via a point source from one body of water to another.
The Supreme Court refused to decide this issue in the first instance, noting that neither the petitioner nor the Solicitor General, in an amicus brief filed in support of the petitioner, had “raised the unitary waters approach before the Court of Appeals or in their briefs respecting the petition for certiorari.” Thus, the “unitary waters” argument remains an open issue. But, as detailed below, it is not a difficult issue to resolve. The “unitary waters” approach to NPDES permitting is supported neither by the statute's text, structure or legislative history nor by case law, and it flatly contradicts the statute's fundamental objectives.