IT’S TIME TO CLARIFY WHAT CONSTITUTES A “POINT SOURCE”
June 7, 2017
By: M. Shane Harvey
Another Clean Water Act Definition Is Being Stretched To Its Limits
When Congress passed the Clean Water Act (CWA), it drew a bright line: discharges of pollutants into Waters of the United States from point sources were declared illegal unless the discharger obtained a CWA permit.
It seemed so simple.
But it turned out not to be. The definition of Waters of the United States, or WOTUS, has been hotly debated for years. Most recently, EPA Administrator Scott Pruitt announced that EPA would review and rescind an extremely broad definition of WOTUS promulgated during the Obama Administration. That definition, embodied in the so-called WOTUS rule, spawned litigation and public outcry from farmers, ranchers and various other industry groups.
While the fight over the definition of WOTUS has received a great deal of attention, it is not the only fight being waged over the scope of the CWA. In recent years, the Sierra Club and others have also sought to expand the definition of point source to include structures never previously regulated under the CWA. For example, the Sierra Club and others have argued that reclaimed valley fills, coal ash ponds and even trains are point sources if pollutants somehow make it from these structures into rivers or streams no matter how circuitous the path.
It does not appear that Congress intended such a result. Congress defined point sources to include discernible, confined and discrete conveyances, such as pipes, ditches and channels. And that made sense. Water can be controlled and treated at these structures to comply with water quality standards. Congress expressly left runoff and other diffuse discharges commonly known as nonpoint source pollution to be regulated by the States.
But in response to suits by the Sierra Club and others, some courts have found that the definition of point source should be read broadly to include structures that States have never regulated in the NPDES program. Most notably, some courts have even found that discharges to groundwater which is not regulated by the CWA can constitute point source discharges if there is a direct hydrologic connection between the discharger and surface water (with groundwater servings as the conduit). A federal court in Virginia recently followed such logic in a case involving a coal ash pond that was leaking to groundwater. Other courts have taken a different approach, leaving a split among courts.
EPA (or Congress) should clarify what a point source is, just as EPA has vowed to fix the WOTUS rule. While the definition of point source originally enacted by Congress seemed clear enough, some courts have read the definition very liberally, citing the broad remedial purpose of the CWA. However, statutes have ends as well as purposes. As Justice Kennedy recently wrote: [a]fter all, almost every statute might be described as remedial in the sense that all statutes are designed to remedy some problem . . . no legislation pursues its purposes at all costs.
This article was authored by M. Shane Harvey, Jackson Kelly, PLLC.