Purpose and Intent

(Originally posted on waterefficiency.net)

By Elizabeth Cutright
Editor
Water Efficiency

On June 24, the Supreme Court ruled in a 6–3 decision that the discharge of 210,000 gallons of mining waste did not violate the Clean Water Act (CWA). On the surface, the decision sounds counterintuitive. After all, how could dumping a couple hundred gallons of potentially toxic mining waste into a 23-acre lake outside Juneau, Alaska, not impact water quality and thus run counter to the intent of the CWA? After all, according the EPA’s own Web site, the CWA is “the cornerstone of surface water quality protection in the United States.” (Emphasis added).
In the majority opinion, Justice Anthony Kennedy explained the court’s decision as preordained due to changes in the CWA at the hands of the Bush Administration, which in 2002 changed the original definition of “fill material” in the act in order to allow for the discharge of contaminated mining waste. Justice Kennedy argued that the court must “accord deference” to the Army Corps of Engineers’s interpretation of the act, but Justice Ruth Bader Ginsburg noted in her dissent that equal deference should be paid to the intent and purpose of the CWA itself which, she argued, plainly states that waterways cannot be used for waste disposal.
The mining company is promising to pretreat its wastewater prior to dumping, and as the former editor of Onsite Water Treatment, I know that the careful and judicious treatment of wastewater can result in almost pristine discharge. But onsite wastewater treatment cannot be taken lightly, and without knowledge of exactly what system the mining company will install, I cannot say with any authority whether its efforts will be successful or if the lake will turn into a stew of toxic runoff unfit for any plant or animal life.
So what do you think? Should the court have stuck by the original intent of the CWA, or should the mining company be given the benefit of the doubt? Can successful wastewater treatment expand our notions of water quality protection and open up new resources in the process, or will unmonitored and poorly executed treatment systems doom our waterways?