Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Environmental Protection Agency

I respectfully dissent.

The Clean Water Act (the “Act”) prohibits the “discharge of any pollutant by any person” from “any point source” to “navigable waters” of the United States, without a permit. 33 U.S.C. §§ 1311(a), 1362(12)(A). The question presented is whether a transfer of water containing pollutants from one body of water to another—say, in upstate New York, from the more-polluted Schoharie Reservoir through the Shandaken Tunnel to the less-polluted Esopus Creek—is subject to these provisions.

The United States Environmental Protection Agency (“EPA”) takes the position that such a…