THE CLEAN WATER ACT: WADING BACK INTO MUDDY INTERPRETATIONS

Authors

Kord Wilkerson, Mississippi College School of Law

Publication Date

Fall 2022

Abstract

“Fresh water: everything that lives on land, animal or plant, depends upon it.” A necessity to our very livelihood, our nation’s waters must be protected. As concern grows over Earth’s stability, and environmental issues in particular, clean water has been at the forefront of this Gordian knot. To mitigate our nation’s impact on water cleanliness, state organizations, environmental activists, and the Environmental Protection Agency have joined forces in an effort to create and enforce environmental protection.

These water quality efforts, however, have not come without struggle. The creation, enforcement, and efficiency of legislation to mitigate water pollution in certain water systems can only be described as subpar. The vague language in the Clean Water Act (CWA) and its interpretation is at the heart of these shortcomings. The CWA generally requires a federal permit known as a National Pollutant Discharge Elimination System (NPDES). Those who discharge pollutants directly into navigable waters are undisputedly required to have this permit. However, nonpoint sources—traditional regulatory authority governed by the states—have occasioned much dispute over the extent of these regulations.

The Supreme Court’s 6-3 decision in Hawaii Wildlife Fund v. County of Maui reinterpreted the CWA to require a NPDES permit for pollutant discharges into groundwater, a nonpoint source. This new test undermines states' authorities in water quality control over nonpoint sources and creates practical problems such as defining and applying the test to regulated entities. Justice Breyer’s decision to interpret the text in the broader context of the Act leads to speculation about Congressional intent that would not have occurred if the Supreme Court had adhered to the plain language in the text. Furthermore, Breyer's reading not only misinterprets the intentions of Congress by undermining traditional state authority over groundwater, but it also raises many practical issues such as a lack of guidance on how the test should be applied and to whom it applies.

Part I of this Note, as discussed above, explains how and why the Supreme Court’s new test contravenes Congressional intention. Part II will discuss the facts and procedural history of Hawaii Wildlife Fund v. County of Maui. Part III will explore the relevant background and history of the law that governed and shaped this case and the CWA upon which it was based. Part IV will discuss the substances of the instant case. Part V will analyze the Supreme Court’s conduct in misinterpreting the intentions of Congress and undermining the traditional authority of the states in groundwater regulation. Part V will also highlight the practical problems that the new test creates for courts by comparing the ruling to another Supreme Court case, Rapanos v. United States. Finally, Part V will show that although it reached a majority opinion, Hawaii could still be overturned by a change in the Court’s composition. Part VI will conclude by summarizing the ways in which Justice Breyer’s new test fails to reflect the intent of Congress, the other issues it causes, and its future applicability to environmental cases.

Recommended Citation

Wilkerson, Kord (2022) "THE CLEAN WATER ACT: WADING BACK INTO MUDDY INTERPRETATIONS," Mississippi College Law Review: Vol. 40: Iss. 2, Article 11.
Available at: https://dc.law.mc.edu/lawreview/vol40/iss2/11