Clean Water Act permits
🔹 I. Overview of the Clean Water Act (CWA)
The Clean Water Act of 1972 (33 U.S.C. §1251 et seq.) is the primary U.S. federal law governing water pollution. Its objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
🔑 Key Concepts under the CWA:
“Navigable Waters” → Defined as “waters of the United States” (WOTUS).
“Discharge of a Pollutant” → Any addition of pollutants from a point source to navigable waters.
Point Source → A discrete conveyance (e.g., pipe, ditch, channel).
Permits Required under the National Pollutant Discharge Elimination System (NPDES) program for:
Municipal and industrial wastewater discharges
Stormwater discharges
Concentrated animal feeding operations
Dredge or fill material (under Section 404)
🔹 II. Types of Clean Water Act Permits
| Section | Type of Permit | Administered By |
|---|---|---|
| §402 | NPDES permit for point source discharges | EPA or state environmental agency |
| §404 | Dredge and fill permits | U.S. Army Corps of Engineers (in coordination with EPA) |
| §401 | State water quality certification | State agencies |
⚖️ III. Landmark Case Law: Clean Water Act Permits
Below are seven major U.S. Supreme Court and appellate decisions interpreting and shaping the Clean Water Act permit regime.
1. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)
Facts:
A developer filled wetlands adjacent to a navigable water without a Section 404 permit.
Issue:
Do adjacent wetlands fall within the jurisdiction of the CWA as “waters of the United States”?
Holding:
Yes. The Supreme Court held that adjacent wetlands are protected under the CWA because of their ecological connection to navigable waters.
Significance:
✔ Expanded the scope of Section 404 permitting.
✔ Confirmed Army Corps' authority over wetlands closely tied to navigable waters.
2. Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)
Facts:
A local agency planned to use abandoned gravel pits as a solid waste disposal site. The Corps denied a permit based on the presence of migratory birds.
Issue:
Can isolated, non-navigable, intrastate waters be regulated under CWA based on the Migratory Bird Rule?
Holding:
No. The Court ruled that using migratory bird presence alone was insufficient to justify federal regulation under the CWA.
Significance:
✘ Limited the scope of “waters of the U.S.”
✘ Section 404 permits do not extend to isolated, non-navigable waters without clear federal interest.
3. Rapanos v. United States, 547 U.S. 715 (2006)
Facts:
A landowner filled wetlands located several miles from navigable waters without a Section 404 permit.
Issue:
What constitutes “waters of the United States” under the CWA?
Holding:
A split decision:
Plurality (Scalia): Only waters with a continuous surface connection qualify.
Kennedy concurrence (controlling): Waters that have a “significant nexus” to navigable waters fall under the CWA.
Significance:
✔ Created the "significant nexus" test for determining CWA jurisdiction.
✔ Introduced uncertainty and case-by-case permitting decisions.
4. Los Angeles County Flood Control District v. NRDC, 568 U.S. 78 (2013)
Facts:
Stormwater from a concrete flood control channel was alleged to pollute downstream waters.
Issue:
Is transferring polluted water within the same water body a “discharge” under the CWA?
Holding:
No. The Supreme Court ruled that moving water within the same waterway does not constitute a new discharge.
Significance:
✘ Not all water movement triggers a permit requirement.
✔ Narrowed the definition of "discharge of a pollutant" under NPDES.
5. County of Maui v. Hawaii Wildlife Fund, 590 U.S. ___ (2020)
Facts:
Wastewater was injected into underground wells, which eventually reached the Pacific Ocean via groundwater.
Issue:
Does the CWA require a permit when pollutants travel through groundwater before reaching navigable waters?
Holding:
Yes. The Court ruled that a permit is required when the discharge is the “functional equivalent of a direct discharge.”
Significance:
✔ Expanded CWA permitting to include indirect discharges via groundwater in some cases.
✔ Introduced a new functional equivalence test — a major development in NPDES jurisprudence.
6. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000)
Facts:
Environmental group sued a company for NPDES violations even though the company had come into compliance.
Issue:
Can a citizen suit proceed if the polluter has since complied?
Holding:
Yes. The Court found that citizens had standing due to continuing environmental harm and public interest.
Significance:
✔ Strengthened citizen enforcement of CWA permits.
✔ Confirmed that compliance after the fact does not shield violators from lawsuits.
7. National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007)
Facts:
Environmental groups challenged EPA's delegation of NPDES permitting authority to Arizona, alleging the need to comply with the Endangered Species Act.
Issue:
Must the EPA consider the ESA before delegating CWA permitting authority to a state?
Holding:
No. The Court ruled that delegation was mandatory under the CWA once statutory criteria were met, regardless of ESA concerns.
Significance:
✔ Clarified that EPA’s authority to delegate permitting to states is limited and mostly non-discretionary.
✘ Narrowed opportunities for environmental groups to block state assumption of NPDES programs.
🔍 IV. Core Legal Standards in CWA Permit Cases
| Legal Test / Principle | Established In | Meaning |
|---|---|---|
| Adjacent Wetlands Rule | Riverside Bayview | Wetlands adjacent to navigable waters require permits. |
| Significant Nexus Test | Rapanos v. U.S. (Kennedy) | Wetlands/waters connected ecologically to navigable waters require permits. |
| Functional Equivalent Test | County of Maui | Discharges via groundwater may require permits if functionally equivalent to direct discharge. |
| No Discharge Within Same Water | L.A. Flood Control | Water movement within same body does not trigger new permit. |
| Citizen Standing and Enforcement | Laidlaw | Citizens may sue for permit violations with continuing harm. |
🧾 Summary: Key Takeaways
CWA permits are required for any discharge of pollutants from a point source into navigable waters (WOTUS).
Section 402 (NPDES) and Section 404 (dredge/fill) are the main permitting programs.
Courts have gradually narrowed and clarified the meaning of “waters of the U.S.” through:
Ecological connection tests
Exclusion of isolated waters (SWANCC)
Focus on surface connection or significant nexus (Rapanos)
The functional equivalence test (Maui) extended permitting requirements to some indirect discharges.
Citizens can enforce the CWA independently of government action under clear standing rules.
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