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Blog > Issues > Property Rights > Supreme Court to decide whether Clean Water Act regulates groundwater

Supreme Court to decide whether Clean Water Act regulates groundwater

February 19, 2019 I By DAMIEN SCHIFF

The scope of the Clean Water Act has been a contentious and controversial issue for decades. For most of that time, the focus has been surface waters — lakes, streams, ponds and marshes. But the fundamental question is, which waters are subject to federal regulation, and which should states regulate?

That question is at the root of County of Maui v. Hawaii Wildlife Fund, which the Supreme Court agreed today to hear. PLF has filed a friend-of-the-court brief in this case.

This case is about whether the Clean Water Act regulates pollution that reaches surface water by means of groundwater. If it does, as the Ninth Circuit Court of Appeals said, then every homeowner with a septic tank could be subject to harsh treatment from agency bureaucrats.

Congress has never asked federal agencies to regulate all pollution everywhere in the country. In the case of groundwater pollution, local governments have been empowered to regulate and enforce discharges from things like septic tanks or lawn fertilizers.

Without a doubt, the Clean Water Act has done a great deal of good in cleaning our waterways. But abuse by enforcement agencies has also harmed many Americans and led to serious controversy about the law.

Under the Ninth Circuit’s decision, which the Supreme Court has now agreed to review, the Clean Water Act’s controversy would greatly expand. If groundwater pollution can be regulated, then virtually all homeowners and farmers in the nation could be forced to pay massive fines and lose the ability to use their property.

We hope the Supreme Court reverses the Ninth Circuit’s decision and confirms Congress’s decision to leave decisions about how to address groundwater regulation to state and local governments.

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