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Jurisdictional Creep: NPDES Permitting for Indirect Point Source Discharges

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The Clean Water Act (CWA) regulates the discharge of pollutants to the navigable waters of the United States. The CWA specifically forbids the “addition of any pollutant to navigable waters from any point source” except as in compliance with certain provisions of the Act, such as the National Pollutant Discharge Elimination System (NPDES) permit program. An NPDES permit will contain limits on the type and quantity of pollutants you can discharge, monitoring and information collection requirements, reporting requirements, and other provisions that the Administrator deems appropriate. The scope of activities that are required to undergo NPDES permitting is growing. This jurisdictional creep means that even unintentional releases that later reach navigable waters could be subject to permitting after the fact, with liability retroactive to the date of the initial release. Two recent cases hold that these “indirect” point sources require NPDES permits. And unless the Supreme Court overrules the latter case, Congress should limit the scope of NPDES program to only certain indirect point sources.

For more information on the CWA, including a deeper dive into the two cases affected by the NPDES permit program and potential impacts from these two outcomes, click here.