13 Sep 2021
Professor Schutz published Agricultural Discharges Under the CWA: Old Questions and New Insights, in the Pacific Law Review, as part of a symposium on agricultural issues.
The article argues that County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), exposes a question that has long plagued efforts at regulating agricultural pollution: the necessary connection under the Clean Water Act between the origin of pollutants and the enigmatic "waters of the United States" embodied in the term "discharge." This connection has been a fighting issue in CWA cases since at least 1994, and represents one of three areas in which the scope of the CWA is disputed (along with "waters of the United States" and "point sources" of pollution). The Court's attention to the matter in County of Maui may clarify the murky doctrine that has developed in cases involving concentrated animal feeding operations and agricultural discharges more generally. It may also provide some clarity to the concepts of nonpoint-source pollution and agricultural-stormwater-discharge exception. All of this may help improve water quality on agricultural landscapes.