Clean Water Act
The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1972.
Under the CWA, EPA has implemented pollution control programs such as setting wastewater standards for industry. We have also set water quality standards for all contaminants in surface waters.
The CWA made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained. EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.
EPA's and the Army Corps of Engineer's proposed rule would expand Clean Water Act jurisdiction to almost all waters in the United States, impacting how communities and landowners manage their public and private property using pesticide and fertilizer products. Landowners will be subject to CWA provisions for permitting and will be vulnerable to citizen lawsuits challenging their ability to manage their own property. Professionals making pesticide and fertilizer applications to turf and ornamental plants, golf courses, and to manage invasive and noxious terrestrial and aquatic weeds will also be impacted as will those making public health applications to control ticks and mosquitoes.
UPDATE: Courts Control WOTUS Outcome
The Waters of the U.S. rule, commonly known as WOTUS, was meant to clarify both the EPA’s and U.S. Army Corps of Engineers’ authority over waterway areas where federal government has authority to either require a permit or stop any activity that would disturb the waterway. The issue most challenged with the rule is the language which expands the definition of waters that impact waterways.
On May 31, the U.S. Supreme Court handed down the unanimous decision that property owners can now challenge the government on whether a property falls under the jurisdiction of the 1972 Clean Water Act. The ruling is a win for property rights and business groups that said it was unfair for government agencies to decide what land is subject to complex environmental laws without a court ever deciding whether the agency is right. That claim relied on an argument by the Corps that the company could still choose to fight an enforcement action, if one was brought, or could go through a lengthy permitting process, whose outcome was largely predetermined.
The act "continues to raise troubling questions regarding the government's power to cast doubt on the full use and enjoyment of private property throughout the nation", wrote Justice Anthony M. Kennedy, who was joined by justices Clarence Thomas and Samuel A. Alito Jr.
The high court's decision is similar to a 2012 case in which the Supreme Court unanimously sided with property orders in a dispute with the Environmental Protection Agency.
The Supreme Court decision seems to support the industry's WOTUS concerns. While we remain hopeful this decision may encourage the Sixth Circuit Court to rule in favor of landowners, we must realize any long term remedy lies with proper federal legislation.
Many in congress are continuing their battle to halt EPA and Corps of Engineers implementation should the court rule in their favor. They believe they can do this in their appropriations bills. While they do have the ability to restrict use of funds to enforce this ruling, should the court judge in favor of the administration, permitting could become even more difficult.
For more information on water regulation, visit www.accelerate.ngcoa.org for all related content.