Proposed Amendment Could Clarify Clean Water Act

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As court rulings exempt waterways from the Clean Water Act, regulating water pollution is becoming increasingly difficult. Photo: Amanda Wills, Earth911.com

Under the Clean Water Act, it is unlawful for industries, municipals and facilities to dispose of their waste into “navigable waters” unless a permit is obtained.

Dispelled waste can degrade surface waters making them unsafe for drinking, fishing, swimming and other activities, according to the EPA.

But, what exactly does “navigable waters” mean? The term referenced under the Clean Water Act tends have a fairly broad definition in Congress, says Mark Squillace, environmental law professor at the University of Colorado at Boulder.

“The important thing is to just keep in mind that it depends on the context, and there is still some ambiguity about the meaning of the term, even something as commonplace as pollution regulation,” says Squillace, who has researched cases involving the navigable waters term.

The ambiguity in the term’s meaning has allowed industries to pollute American waters and be free of jurisdiction.  In 2007, for instance, a pipe manufacturer in Alabama was convicted and fined millions of dollars for dumping oil, lead, zinc and other chemicals into a large creek.

Since the Supreme Court exempted the waterway from the Clean Water Act, an appellate court overturned the conviction and the fine, and the company agreed to pay a smaller amount and submit to probation.

Other Supreme Court decisions ruled that waterways entirely in one state, creeks that sometimes go dry and lakes unconnected to larger water systems are not considered navigable, leaving them free from jurisdiction under the Act.

As court rulings exempt waterways from the Clean Water Act, regulating water pollution is becoming increasingly difficult.

According to the EPA, legislation would go a long way in addressing existing confusion regarding the scope of the Act’s jurisdiction and provide a foundation for predictable implementation of regulations.

Currently, a bill to amend the Clean Water Act that would replace the term “navigable waters” with the term “waters of the United States,” has been introduced in Congress and may be a way for federal authority to gain increased control over water pollution.

However, coalitions of industries have lobbied against the amendments, preventing Congress from voting on the issue.

Established in 1972, the Clean Water Act was an amendment to the 1948 Federal Water Pollution Control Act. It was created in reaction to the need for tighter regulation of water pollution, as industries boomed and improperly dispose of waste.

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