Tenn. Clean Water Network v. Tenn. Valley Auth.

Can a polluter escape liability under the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 - 1387, by moving its drainage pipes a few feet from the riverbank? The *448Fourth and Ninth Circuits have said no. In two cases today,1 the majority says yes. Because the majority's conclusion is contrary to the plain text and history of the CWA, and because I disagree with the majority's analysis of the permit's Sanitary Sewer Overflow provision, I respectfully dissent from the majority's position as to these issues.

I. Scope of the Clean Water Act

Plaintiffs have invoked the CWA's citizen-suit provision, which…