Can shellfish be regulated as pollutants under the Clean Water Act?
This is the most significant and fundamental argument pertaining to the Corps authority. If the industry prevails with this argument, the Corps ability to regulate traditional bottom culture (single layer spat on shell or cultchless seed), whether in SAV or not, goes away. Prevailing on this CWA argument is also important from the standpoint of citizens lawsuits, which are provided for under the CWA, but not the RHA. PCSGA has argued that, for an activity to be regulated under the CWA, you must satisfy four key elements. You must have a: 1)DISCHARGE of a 2)POLLUTANT from a 3)POINT SOURCE into 4)NAVIGABLE WATERS. Shellfish, PCSGA argues, are not pollutants and therefore cant be regulated by the CWA. Ironically, the only case law existing in regards to this issue is the result of a shoreline homeowners organization that sued Taylor Shellfish in Washington State to require them to get a National Pollution Discharge Elimination Permit under Section 402 of the CWA for a mussel farm. Taylor
