Enforcement serves as the cornerstone of the Clean Water Act, but in recent years it has eroded. Two of the causes are obvious – eight years of an Administration notoriously hostile to environmentalism, and a pair of damaging Supreme Court cases.   The final cause of its disrepair is not obvious at all, although it is much more deeply rooted. It is the increasingly serious failure to recognize every Clean Water Act violation and available compliance remedy. Ironically, this problem took root in the earliest years of the enforcement program because violations were so clear and easy to prosecute.

The Clean Water Act succeeded a failed 1965 federal law and a common law regime that applied often vague and indeterminate nuisance concepts and maxims of equity jurisdiction. There is no doubt that, in very many cases, the Clean Water Act has been a vast improvement over its predecessors. Its mechanics are simple: § 301(a) of the Act decrees that no discharges are legal unless allowed, usually via a National Pollutant Discharge Elimination System (NPDES) permit.  Each permit has the force of law, with permit compliance quickly determined through self-reporting so that violations of the permit terms are easily proven. The EPA can readily prosecute an unpermitted discharger who directs pollutants to a waterway, since such clear evidence of a discharge is tantamount to a determination of civil liability. In all these scenarios, the government has the convenient options of pursuing a compliance remedy, a civil penalty remedy, or both.

This same settled state of affairs, however, does not prevail among those parties who are the focus of EPA’s more recent oversight efforts. These are unpermitted, often wet weather dischargers such as the owners or operators of factory farms or industrial construction sites, who have not designed their daily operations to produce an effluent stream. Although these dischargers constantly generate or handle pollutants, their unlawful pollution of legally protected waters is erratic and, typically, unreported. These are costly and difficult cases to prosecute. Further, the Act’s permit program fails to address potential water polluters, including the owners and operators of poorly maintained lagoons. All these actors present the type of risk-creating landowner cases familiar to the old common law courts.

Clean Water Act enforcement against individuals in these more elusive groups can be problematic. Does the EPA have any enforcement remedy if a failing dam wall or an undersized, open settling pond system threatens to pollute a water of the United States? Can the Agency find a discharge violation if an unpermitted facility’s pollutants are slowly percolating through a shallow groundwater table toward a nearby river, or is its owner or operator still beyond the reach of § 301(a) of the Act? More broadly, does the Act provide a remedy when no permit has issued and there is only a threat of water pollution? If pollutants do reach a waterway, but their initial release into the environment occurred significantly earlier or through separate events, when is civil penalty liability incurred and how is it to be calculated?

This Article argues that an appropriate enforcement analysis should be focused upon actions rather than outcomes because the Clean Water Act regulates conduct. This unexceptional insight opens the door to some unexpected or forgotten conclusions: A “point source” is to be found toward the hand of the discharger rather than the bank of the receiving water; the time and place of a person’s discharge of a pollutant do not await its entry into a water of the United States; and, most significantly, the Act provides liability even for those who only allow or create a significant threat of water pollution. Many centuries of nuisance law had already established similarly broad, conduct-based liabilities; the 92nd Congress did not invent them in 1972. And although the Supreme Court has ruled that certain federal common law of nuisance claims have been preempted by the Clean Water Act, the substance of these cases did not disappear. These environmental claims, and the relief available for them, survive within §§ 301(a) and 309 of the Act itself.

By building on a rediscovered legal foundation, this Article is able to reconstruct the suppler, more imaginative, and better-integrated statutory enforcement scheme that Congress created. It also harmonizes many aspects of the Act’s enforcement and regulatory structures, tying together common law nuisance doctrine and Clean Water Act injunctive relief, explaining the common source of compliance orders and certain water permit terms, and classifying “point sources” and permit terms to illuminate permitting and enforcement strategies. The Article provides a detailed framework for determining liability where multiple “point sources” are owned or controlled by multiple actors. Most importantly, it explains how a fully realized § 301(a)—one that acknowledges the duty to control pollutants—can be used to abate any significant threat to a water of the United States.