In April, the U.S. Supreme Court finally weighed in with an answer to a longstanding question about what kinds of pollution discharges rise to the level of a "point source" and require a permit under the Clean Water Act. The Court dipped its toes into some muddied waters, as this question has been the subject of a range of decisions in the lower courts for decades, with little consensus. Panelists on the Center for Progressive Reform's May 28 clean water webinar examined the Supreme Court's opinion and its possible implications for water quality protections.

The Clean Water Act prevents the addition of any pollutant to any navigable water of the United States from any so-called "point source" – a fixed point, as in, for example, the end of a pipe discharging into a river – without a National Pollutant Discharge Elimination System (NPDES) permit. Generally speaking, the EPA …

Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections.

States often impose conditions on such projects that are more stringent than federal requirements in order to protect drinking water and local aquatic habitat, among other reasons. The Clean Water Act also empowers states to deny certifications and stop a project from moving forward if it would still violate the state's water quality standards even after conditions are imposed.

The rulemaking was spurred by an executive order from President Trump last year. The order directed the EPA to change the 401 certification process, with an ostensible focus on "the need to promote timely Federal-State cooperation …

In 1972, the U.S. Clean Water Act (CWA) created a permit system for point source discharges to navigable waters of the United States – rivers, lakes, and coastal waters – with the goal of restoring and protecting their water quality. Typically, these permits are issued by the U.S. EPA or through state agencies to dischargers of wastewater, e.g., from urban and industrial wastewater treatment plants and to other dischargers of potentially contaminated water that reach streams by a pipe or similar conveyance. The goal was to provide some degree of regulatory oversight over such discharges. In California, the State Water Resources Control Board implements the federal Clean Water Act using its authority under the Porter-Cologne Water Quality Control Act (Water Code, §13000 et seq.). Under the CWA, neither EPA nor the states are required to …

Today, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Because the U.S. Court of Appeals for the 9th Circuit applied a different legal test in determining that a permit was required for a sewage treatment facility operated by the County of Maui, the Supreme Court vacated the 9th Circuit's judgment and remanded the case for application of the standard announced today.

Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority – which drew the votes of Chief Justice John Roberts and …

David Flores co-authored this post with Kathy Phillips, the Assateague Coastkeeper, an on-the-water advocate who patrols and protects the Maryland and northern Virginia Eastern Shore coastal bays and stands up to polluters.

Last month, former CPR policy analyst Evan Isaacson wrote in this space about Maryland's proposal to revise and reissue its Clean Water Act pollution permit for concentrated animal feeding operations (CAFOs). He made a convincing case that those who love the Bay need to advocate for effective and enforceable CAFO regulations.

Traditionally, air pollution permits have been and will continue to be a critical component of climate policy in the United States, controlling emissions of greenhouse gas pollutants. But strong water pollution standards, including permits, are also a vital tool in addressing climate change because they are so important to state efforts to adapt.

Maryland's CAFO permit is what's described as a "general permit" because …

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Heinzerling's argument preview for this case.

The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is whether a permit is required for pollutants that originate from a point source but travel through groundwater before reaching a navigable water.

The textual crux of the case is the word “from”: Does “from” mean that a pollutant must be directly delivered to a navigable water by a point source or that a pollutant must merely originate at a point source?

If “from” means the former …

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation's waters of any pollutant that comes "from any point source." Congress' high hopes for the cleansing power of the act's permitting system are reflected in the name Congress chose for it – the "national pollutant discharge elimination system" – and the attendant statutory goal that "the discharge of pollutants into the navigable waters be eliminated by 1985." Yet in requiring permits only for point sources of water pollution, Congress excluded nonpoint sources from the permit system's reach. County of Maui, Hawaii v. Hawaii Wildlife Fund, which will be argued Wednesday, asks whether the act "requires a permit when pollutants originate from a point source but …

The many thousands of people in the Mid-Atlantic region who care deeply about restoring the Chesapeake Bay tend to be pretty knowledgeable about the causes of the Bay's woes and even some of the key policy solutions for restoring it to health. These concerned citizens may even be familiar with the term "TMDL," a legal concept within the Clean Water Act that is probably completely foreign to most of the rest of the country. But what even the most committed Bay advocates may not be aware of is that a TMDL (short for "Total Maximum Daily Load") is merely a plan, not an enforceable document, and certainly not a self-activating solution to the Bay's problems.

The key to giving effect to the Bay TMDL and the entire Chesapeake restoration framework lies in the mechanics of the Clean Water Act. Quite simply, the TMDL sets an overall …

It's that point in the year when we take a step back and reflect on the past 12 months. This was a big year for those concerned about restoring the Chesapeake Bay, with plenty of feel-good stories about various species and ecosystems rebounding more quickly than expected. There were also more than a few headlines about record-setting rainfalls washing trash down the rivers, over dams, and coating the Bay's shores. But I am going to look beneath the headlines at what is driving – or hindering – our progress in restoring the Bay and where things stand now that we're just past the halfway mark in the current Bay cleanup framework. So, in no particular order, here are the top 10 stories and issues I've been watching this year, which I'll expand upon in a series of posts over the next few weeks.

10) States Began to Craft Their …