January 16, 2014

Do fireworks require a Clean Water Act permit?

By Damien M. Schiff Senior Attorney

Yes, according to a new lawsuit filed in federal court in Sacramento against the Lake Tahoe Visitors Authority and a fireworks operator.  The lawsuit contends that the Lake Tahoe fireworks shows cause considerable environmental harm to Lake Tahoe, through discharges of trash, chemical residues, and other pollutants from the boats from which the fireworks are launched.  Under the Clean Water Act, one must obtain a permit to discharge a pollutant from a point source into navigable waters.  Here, there’s no question that Lake Tahoe is a navigable water, and that the fireworks and their residue are pollutants.  Thus, the key legal issue is whether the shooting off of fireworks involves a discharge from a point source.  In the four-decade history of the Clean Water Act, neither the EPA nor any other permitting body outside of California has ever required a Clean Water Act permit for fireworks.  A few years ago, however, the San Diego Regional Water Quality Control Board adopted a general permit for all fireworks shows occurring over water, and I suspect that the plaintiffs in the Lake Tahoe lawsuit will rely on that precedent to argue that a permit is needed for the Lake Tahoe fireworks.  The Visitors Authority is fighting back, at least in the media, claiming that it and its contractor go to great lengths to pick up trash and other debris following the infrequent fireworks shows, and that no one other than the plaintiffs (and they recently) have complained about the fireworks’ impacts on the Lake.

One might plausibly argue that fireworks displays, particularly regular shows such as occur at Sea World in San Diego, should be regulated under the Clean Water Act.  But if just a small-scale annual show triggers regulation, it is hard to imagine what wouldn’t be regulated under the Clean Water Act.  Much pollution in our waters comes from atmospheric deposition of chemicals that were emitted, at one point, from a point source (such as a car tailpipe, factory smokestack, or even a chimney).  The logic that would regulate the incidental polluting effects of fireworks displays would seem to require regulation of these other, apparently innocuous activities.  Such absurd results will probably give the district court caution in addressing the Lake Tahoe plaintiffs’ arguments.

What to read next