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The Clean Water Act defines "discharge of a pollutant" to mean any addition of any pollutant to navigable waters from any point source. 33 U.S.C.S. § 1362(12)(A). The definition of pollutant, in turn, specifically includes dredged spoil that has been discharged into water. Id. § 1362(6). Dredged materials, including the native soils excavated by ditching activities, may constitute a pollutant within the meaning of the Clean Water Act.
Appellant United States alleged that appellees James and Rebecca Deaton violated sections 301 and 404 of the Clean Water Act (CWA), 33 U.S.C.S. § 1311 and 1344, by sidecasting dirt as they dug a drainage ditch through a wetland. The trial court granted summary judgment to appellees, holding that sidecasting in a wetland did not constitute a discharge of a pollutant under the CWA.
Was sidecasting in a wetland an act which constitutes a discharge of a pollutant under the CWA?
The appellate court reversed. First, the piles of dirt dredged up by appellees were unquestionably pollutants under the CWA. Second, the appellate court rejected appellees' contention that they could not be liable for discharging a pollutant unless they added something to the wetland that was not there previously. Rather, the court held that there could be an addition of a pollutant to waters without an addition of material, and "discharge" under the CWA encompassed sidecasting in a wetland. The court noted the potential harmful effects on hydrology and the environment of depositing dredged spoil in wetlands, regardless of whether such spoil came from the same wetland or not.