**** The information written here is not legal advice and the author of this blog is not your lawyer. These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****
You can usually expect that it is probably legal to bathe in naturally existing bodies of water such as lakes, creeks, rivers, and oceans which do not have to be entered through private property and do not have fences or signs declaring them to be off limits.
Use of these natural bodies of water is, however, subject to rules involving the land connected to them. If there is a lake in the middle of a city park that closes at 9:00 p.m., then using that lake for a bath after the park closed at 9:00 p.m. is also illegal. While laws regarding the use of public lands and waterways are often posted on signs, it is also possible that they are simply recorded in the law books, especially when they apply to an entire park system or collection of beaches.[i]
Public fountains are not naturally existing bodies of water. They, and other man-made water-involving exhibits are usually created for the purpose of commemoration or beautification and the government has no obligation to allow people to use them for other purposes like washing. There do not have to be specifically written laws declaring that the public is only allowed to gaze upon the municipal reflecting pond or water display in order for misusing them to be illegal. The police have an array of general misconduct charges that can be legitimately applied against public behavior. See the posts about police and courts for more details about those.
If waterways are polluted and you get sick from washing in them, does the law entitle you to anything? Can your bathing or washing laundry in rivers or lakes, etc… count as pollution?
There is a federal law, called the Clean Water Act, which defines water pollution and explains exactly when it is illegal to discharge anything into waterways. Made by Congress, that law “is intended to protect the quality of lakes, streams, and other waters for recreational use, for maintenance of aquatic life, and for drinking water sources.”[iii] The federal Environmental Protection Agency and state environmental departments have regulations that detail how that federal law is to be carried out.[iv]
The Clean Water Act makes it illegal for any person to put pollutants including solid waste, garbage, chemical waste, industrial waste, biological residue, etc…[v] into the waterways. Even though the law says “any person” can be guilty of a violation, the Clean Water Act is ordinarily used against businesses that dump or drain out dirty water and against local governments whose waste treatments plants aren’t sufficient to treat raw sewage or who fail to prevent excessive debris and biological overflowing when storms wash things into pubic waterways.
This Act, and the various regulations that go with it, are all full of measurements because it simply isn’t possible to prevent every bit of pollution from going into public waterways. The laws detail under what circumstances particular quantities of various pollutants can go into waterways.
The small amount of soap or grime that a person bathing or washing clothes might put into the water would be very far below the level of water contamination that would count as pollution, although it can be considered a violation of the local litter ordinance. Typical state and local litter laws have very broad declarations that dumping human waste, garbage, paper, detrimental substances, or other things into rivers or waterways is littering.[vi]
Industries and waste treatment plants have to obtain permits to dump in waterways. To get a permit, it is necessary to identify one’s industry and the pollutants that are going to be discharged. The permit process is mainly a way of letting the government know that this company will be submitting regular reports to prove that they are cooperating with the pollution limits in the federal and state regulations.
If a company or municipality allows more pollutants into a waterway than they are supposed to, they will be fined by the EPA or the state environmental agency and, if necessary, sued by the EPA. Private citizens and groups of citizens can also file lawsuits against companies or governments for violating the Clean Water Act,[vii] but because this law is intended to keep waterways clean, the remedy that comes from this kind of lawsuit emphasizes reducing pollution in the water source, not directly aiding individuals who have gotten sick from the water.
Nevertheless, violations of the Clean Water Act are important sources of proof in cases that are about injuries and sickness caused by polluted water. In other words, if a community of homeless people become sick from bathing in polluted water and the EPA or the state environmental agency has documented who caused the pollution, then the homeless people can use those documents as proof of how they got sick and who caused their sickness.
Cases that emphasize the harm done to humans are grouped in a category called “personal injury law.” The formal legal term for this category is “torts.” Within torts are two general ways that people get injured: intentionally and by negligence. When people get sick or injured by water pollution, the lawsuit is filed on the basis of negligence.
In order to succeed in a negligence case, it is necessary to prove that the defendant owed a duty to the injured plaintiff. The plaintiff also has to prove that the defendant breached that duty, that he (the plaintiff) is suffering harm, and that this harm has been caused by the defendant’s breach of his duty. The Clean Water Act and the federal EPA and state regulations that go with the Act all establish the duty that is owed in a negligence case about water pollution.[viii]
A successful Clean Water Act lawsuit, which could have been brought by the EPA or an environmental group or anybody not necessarily the plaintiff in the negligence case, can serve as proof that the duty was breached. So, all that is left for the plaintiff in the negligence case to prove is the extent of his injuries or sickness and the connection between his problems and the polluted water.
|A book titled A Civil Action[ix] details the work involved in making a negligence case on behalf of leukemia victims against a company that polluted a local water source. That case was a class action lawsuit on behalf of several families which went through years of expensive preliminary court procedures. It depicts, with great pain, the work and costs involved in collecting evidence and simply trying to ascertain who was truly responsible for contaminating the water. There is also a related book titled A Documentary Companion to A Civil Action[x] which contains many of the actual court papers that were filed in the case. Both of those books would be helpful to somebody thinking about suing for injuries or sickness caused by water pollution. There are also some law library reference books that have practical guidance for working on this kind of lawsuit. One of these, a set called “Am Jur Proof of Facts” has a very detailed article describing how to prepare a case about dioxin poisoning in a water source. It lists the evidence that should be presented, gives checklists of questions to ask experts, includes sample interrogatories identifying the documents to obtain, and generally conveys what information is necessary to prove and present a water pollution case.[xi] Another helpful article from that set is specifically about the role expert witnesses play in proving “toxic torts,” personal injuries caused by poisons and pollution. It has sample forms, clear explanations of how experts show that an accused defendant did or did not pollute water, and descriptions of the legal standards used to assess expert opinions.[xii]|
[i] To find regulations, hours, and other information about lakes, ponds, and rivers under state control, look in the state’s park authority site http://www.statelocalgov.net/50states-parks.htm and the state’s environmental agency site http://www.epa.gov/epahome/state.htm. To find rules pertaining to a local body of water, locate the city ordinances using the Seattle Public Library’s list of municipal code publishers. Link to each publisher until you find the municipality you need. http://www.spl.org/default.asp?pageID=collection_municodes. [ii] The law is summarized and explained on the EPA’s Web site at http://www.epa.gov/region5/water/cwa.htm.
[iii] Joel M. Gross & Lynn Dodge, Clean Water Act 1 (Basic Practice Series) (2005).
[iv] Federal Environmental regulations are available at http://www.epa.gov/epahome/lawregs.htm. State environmental regulations are available through state environmental agencies http://www.epa.gov/epahome/state.htm or in state administrative codes http://www.nass.org/acr/html/links.html.
[v] 33 U.S.C.S. §1362(6) (2007).
[vi] See, e.g., Denver, CO., Municipal Code § 2.39.29 (2007); Fla. Stat. § 29.403.413 (2007); 18 Pa. Cons. Stat. § 6501 (2007). The Litterbutt Web site http://litterbutt.com/v2/Misc/LitterLawsByState.asp publishes state litter laws, but might not keep them up to date. After reading a state’s law on that site, use the citation to look for the law in a current version of the state’s code to get the latest version. State codes are at http://www.law.cornell.edu/statutes.html#state.
[vii] A prominent example of a Clean Water Act lawsuit brought by a group of citizens is Friends of the Earth Inc. et al. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000).
[viii] This is not the only way to establish that the water polluter owed a duty to the plaintiff or the public at large, but it is the strongest proof of an obligation to have kept the water cleaner. It is certainly possible for someone to have gotten sick or hurt from polluted water that was within EPA and state guidelines for cleanliness. In that kind of situation, the injured person can still establish that the polluter owed him some sort of duty: a duty to warn about what kinds of chemicals were going into the water, a duty to dump at a different time, or some other duty that becomes evident from the facts of the case.
[ix] Jonathan Harr, A Civil Action (Vintage Books) (1996).
[x] Lewis A. Grossman and Robert G. Vaughn, A Documentary Companion to A Civil Action: With Notes, Comments, and Questions (Revised Ed., Foundation Press) (2002).
[xi] Ray Vaughan, Liability for Dioxin Contamination, 25 Am. Jur. Proof of Facts 3d 473 (1994).
[xii] Ray Vaughan, Proof of Contamination in Toxic Tort Cases Through Expert Testimony, 39 Am. Jur. Proof of Facts 3d 539 (1996).