Malibu. Photo: Kyle MacLennon
The 1972 Clean Water Act (or the CWA for short) is the primary legal line of defense against water pollution, especially in terms of ocean pollution here in Southern California. The federal law sets strict limits on the types and amounts of runoff allowed to enter US bodies of water. Although this does little to curb non-point source pollution (i.e. what flows out from the streets to the lineup after a storm), it has been absolutely critical in the reduction of ocean pollution from point-source pollution (i.e. runoff from factories, industry, and mining). Unfortunately, a Supreme Court decision reached this week has the potential to weaken the CWA.
Technically, the CWA applies to all waters of the United States that have a “significant nexus” to “navigable waters.” This basically refers to any body of water that interacts with a larger body of water that allows for the transport of people or goods. By this definition, if you have a pond or body of water on your property that doesn’t flow to a creek, river, or ocean, you can treat that water as your personal property. That means that provided you don’t break any other laws, you can pollute to your heart’s desire. After all, it isn’t hurting anybody else downstream, right?
As with all laws, the CWA makes use of vague wording that allows for a little wiggle room. In this case, the term “significant nexus” comes into play. Sure, if the pond in your backyard isn’t touching any water at all you can pollute. But what if it just barely drains to the creek on your property line? What exactly is the threshold for the term “significant?”
Although this aspect of the law has come under fire before, it has returned to the forefront with the Supreme Court Case US Army Corps of Engineers v. Hawkes Co. North Dakota-based Hawkes Co. had planned to mine peat from wetlands in an area of Minnesota. That was until the US Army Corp of Engineers (USACE) took note. The USACE argued that the wetlands actually did have a “significant nexus” with the nearby Red River of the North. If this is the case, the wetlands would fall under CWA protection, and Hawkes Co. would need to obtain a permit from the USACE before taking action or face huge fines.
The case brought before the Supreme Court was not whether or not the water fell under jurisdiction of the CWA. Rather, the justices were to decide whether Hawkes Co. could proceed immediately in filing a lawsuit to challenge the Army Corp’s jurisdiction over the land or whether the company would be required to go through the complete permitting process before doing so. Historically, the Army Corp’s decision about the jurisdiction of the land was considered final. However, in this instance, the justices ruled that the company need not go through the expensive and time consuming permitting process before challenging the USACE over its jurisdiction.
Bored yet? Me too. Sounds like a bunch of people fighting over permits. Here’s the real problem: the expensive and time consuming permit process is what was keeping the waters clean all along anyway. Landowners were reluctant even to apply for permits unless there was serious money to be made, and many who began the process eventually dropped out and gave up. This kept usage, and thus, potential pollution, down simply because it was such a pain to get a permit.
With this court decision, all bets are off. Landowners (be it your grandparents or large companies) no longer need to go through the permitting process before taking the Army Corp to court to decide whether the body of water in question falls under the Clean Water Act. That means many more people may be willing to contest whether their water is important enough to fall under the CWA.
That means that every little creek and puddle can technically be put through judicial review as to whether it needs a permit or not. This could result in more bodies of water being excluded from CWA jurisdiction. While many of these waters may have little impact on our lineups, others very well might. After all, that term “significant” is definitely open to interpretation. Not to mention, there are many factors that go into a judicial decision beside just the facts. Outside information, personal bias, and unfortunately even political maneuvering can drastically affect the outcome of a court case.
At the end of the day, this decision removed one barrier to pollution, and as a result, it could increase the amount of point-source pollution flowing out into our oceans. Be it in small quantities adding up, or larger quantities sneaking through the courtroom, when the Clean Water Act comes under fire, so do our lineups. While landowners might view this decision as a victory for property rights, we all may stand to lose when it comes to the health of our beaches.
