SCOTUS ruling: Is Clean Water Act only valid for navigable waters?

The interim goal of the Clean Water Act (CWA) was swimmable and fishable waters by 1983 and the final goal was the elimination of all water pollution by 1985.

"One would think that open waters used as urinals are not swimmable and that discharging wastewater containing toxic compounds, carcinogens, oils, pesticides, herbicides, and industrial waste, to name a few, would fall under the category of “water pollution.” But again, now the Supreme Court is claiming that the CWA is valid only for navigable waters and not for streams one cannot navigate a boat in." Peter Maier

The following paragraph was used in a 1997 lawsuit against the EPA heard before the federal Court of Appeals in Denver. The lawsuit stemmed from the EPA’s refusal to address the pollution caused by nitrogenous (urine and protein) waste in its definition of “secondary treatment.”

“First always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”

The suit stated that, due to an incorrect water pollution test application, the EPA had excluded nitrogenous waste from treatment. Besides exerting an oxygen demand (just like fecal waste), this urine and protein waste is also a fertilizer for algae and thus is causing eutrophication, often resulting in dead zones.

Maybe not for those working in our judicial system, but the intent of the CWA was unambiguously clear, as explained by Sen. Edmund  Muskie, who, speaking from the Senate floor, stated: “This Act simply means that we cannot use our open waters to treat our sewage any longer.”

One would think that open waters used as urinals are not swimmable and that discharging wastewater containing toxic compounds, carcinogens, oils, pesticides, herbicides, and industrial waste, to name a few, would fall under the category of “water pollution.” But again, now the Supreme Court is claiming that the CWA is valid only for navigable waters and not for streams one cannot navigate a boat in. 

One has to wonder why the people that wrote the CWA even used this wording, since it obviously is violating the intent of the CWA legislation and that obviously those non-navigable streams eventually will discharge into navigable waters. 

Related: EPA not using all technology available to implement the Clean Water Act

The legal fight will now likely erupt over whether the discharge was meant to be directly or indirectly discharged into navigable waters. It will keep the courts busy for decades, while the water quality in our open waters suffers further deterioration and the real intent of the CWA is again ignored by our legal system.

Maier received a doctoral degree in civil engineering from the University of Delft in Holland, and has professional engineering licenses in New York and Utah. He worked for the State of New York, a large engineering consulting firm in Holland and an equipment manufacturing firm in Utah. He was involved in the design and R&D of municipal and industrial wastewater treatment plants in Europe, Brazil, Mexico and the United States. He can be reached at pmaier@petermaier.net.