I. The Statutory Framework

The Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), was enacted on October 18, 1972, as Public Law 92–500, with the stated objective of restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters.”¹ To achieve this objective, Congress established what remains the most comprehensive federal regulatory framework for controlling the discharge of pollutants into navigable waters. The framework rests on a simple prohibition: Section 301(a), codified at 33 U.S.C. § 1311(a), makes it “unlawful for any person to discharge any pollutant” from a point source into navigable waters of the United States except in compliance with the statute’s permitting requirements.²

The terms of this prohibition are defined in Section 502, codified at 33 U.S.C. § 1362, with an expansiveness that reflects Congress’s intent to capture every pathway by which contaminants enter the nation’s waterways.

Section 502(6) defines “pollutant” as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”³ The definition enumerates thirteen categories. “Chemical wastes” is the eighth. Congress did not define what constitutes a “chemical waste.” It did not limit the term to industrial byproducts, manufacturing residues, or substances listed on any agency’s inventory. It wrote “chemical wastes” without qualification and left the phrase to do its statutory work.

Section 502(14) defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”⁴ The definition begins with “any.” It continues with “including but not limited to.” The enumerated examples are illustrative, not exhaustive. Congress intended the category to be open-ended. The courts have confirmed this. In Concerned Area Residents for the Environment v. Southview Farm, the Second Circuit held that vehicles spreading liquid manure across fields constituted point sources under the CWA, because the manure “flowed in a discernible, confined, and discrete manner” toward navigable waters.⁵

Section 502(5) defines “person” as “an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body.”⁶ An individual is a person. A swimmer is an individual. A swimmer is a person under the Clean Water Act. This is not in dispute.

Section 502(19) defines “pollution” as “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.”⁷ Sunscreen is man-made. Its entry into water is man-induced. The alteration of the water’s chemical integrity is documented, peer-reviewed, and the subject of three legislative bans. The statutory definition of pollution describes exactly what happens when a person wearing sunscreen enters the ocean.

II. The Chemical Identification

Oxybenzone (benzophenone-3, CAS No. 131-57-7) is an organic compound of the benzophenone class used primarily as a UV-absorbing agent in sunscreen formulations. It absorbs UVA and UVB radiation in the 270–350 nm range and has been used in commercial sunscreen products since the FDA first approved it as a Category I sunscreen active ingredient in the 1978 Over-the-Counter Sunscreen Monograph.⁸ The Environmental Working Group’s Sunscreen Guide has identified oxybenzone as an ingredient in approximately 70 percent of non-mineral sunscreen products on the U.S. market.⁹

Octinoxate (ethylhexyl methoxycinnamate, CAS No. 5466-77-3) is the second most common organic UV filter in American sunscreens. It absorbs primarily in the UVB range (290–320 nm) and is found in approximately 8 percent of products in the EWG database.¹⁰

Avobenzone (butyl methoxydibenzoylmethane, CAS No. 70356-09-1), homosalate (CAS No. 118-56-9), octocrylene (CAS No. 6197-30-4), and octisalate (CAS No. 118-60-5) round out the six most widely used organic UV filters. The FDA currently lists sixteen approved sunscreen active ingredients for over-the-counter use. Of these, only two—zinc oxide and titanium dioxide—are mineral-based. The remaining fourteen are organic chemical compounds.¹¹

These are not incidental trace contaminants. They are the product. A sunscreen’s UV-protective function is performed entirely by these chemical compounds. When the sunscreen is applied to the skin and the wearer enters the ocean, the chemicals do not remain on the skin. Research published in Archives of Environmental Contamination and Toxicology documented that approximately 25 percent of applied sunscreen washes off the body within 20 minutes of submersion in water.¹² The chemicals enter the water column directly. They enter it because they were applied to a surface—the human body—that was then submerged in navigable water. The discharge is not accidental. The discharge is the inevitable physical consequence of a deliberate act: the act of entering the ocean while coated in synthetic chemical compounds.

Under Section 502(6), a “chemical waste” is a pollutant. A chemical compound that has served its intended purpose—absorbing ultraviolet radiation during the period the wearer was on land—and is now washing off the wearer’s body into navigable water is, in every functional sense, a chemical waste. It is a spent chemical being discarded into the aquatic environment. The statute does not require that the discharge be intentional, negligent, or even conscious. It requires only that a pollutant be added to navigable waters from a point source. The pollutant is oxybenzone. The navigable water is the ocean. The point source is the swimmer.

III. The Point Source Analysis

The question of whether a human body constitutes a “point source” under the Clean Water Act requires a straightforward application of Section 502(14). The statute defines a point source as “any discernible, confined and discrete conveyance” from which pollutants “are or may be discharged.” Three adjectives qualify the noun: discernible, confined, and discrete.

A human body is discernible. It is visible to the naked eye. It occupies a defined volume in three-dimensional space. It can be individually identified, photographed, and distinguished from the surrounding medium. The EPA does not struggle to determine where a human body ends and the ocean begins.

A human body is confined. It is enclosed within an integumentary boundary—the skin—that separates the chemicals applied to its surface from the receiving water until the moment of submersion. The pollutants are confined to the surface of the conveyance until the conveyance enters the water, at which point the pollutants are discharged. This is functionally identical to a pipe that contains effluent until the effluent reaches the discharge point.

A human body is discrete. It is an individual unit. It is not a diffuse area of runoff or a broad atmospheric deposition. Each swimmer enters the water at a specific, identifiable location and discharges pollutants from a specific, bounded surface area of approximately 1.7 square meters. The discharge originates from a discrete conveyance, not from an indeterminate expanse.

The statute lists examples: pipes, ditches, channels, tunnels, conduits, containers, rolling stock, vessels. These are examples, not limitations. The Second Circuit’s holding in Southview Farm confirmed that a vehicle spreading manure—an object not enumerated in the statute—qualifies as a point source when it serves as the conveyance from which pollutants flow into navigable waters.¹³ A human body serves the same function. It is the conveyance that transports synthetic chemical compounds from the terrestrial environment into navigable waters. It does so in a discernible, confined, and discrete manner. The only distinction between a pipe discharging oxybenzone into the ocean and a swimmer discharging oxybenzone into the ocean is that one conveyance has a heartbeat.

The statute’s sole exclusion from the point source definition is for “agricultural stormwater discharges and return flows from irrigated agriculture.”¹⁴ Swimming is not agriculture. The exclusion does not apply. Congress did not exempt recreational bathers. It had the opportunity to do so. It chose not to.

IV. The Contamination Record

The National Park Service estimates that 4,000 to 6,000 tons of sunscreen wash into U.S. reef areas every year.¹⁵ Globally, an estimated 14,000 tons of sunscreen enter the world’s oceans annually, according to the 2015 study published in Archives of Environmental Contamination and Toxicology by Downs et al. that catalyzed the legislative response in Hawai’i.¹⁶

The contamination is not hypothetical. It has been measured in situ at concentrations that exceed toxicological thresholds by orders of magnitude.

Downs et al. sampled oxybenzone concentrations at coral reef sites in the U.S. Virgin Islands and Hawai’i. In the U.S. Virgin Islands, concentrations ranged from 75 μg/L to 1.4 mg/L—the latter being 1,400 parts per billion.¹⁷ In Hawai’i, concentrations ranged from 0.8 to 19.2 μg/L.¹⁸ The NPS’s own water sampling at coral reef sites in national parks has detected “high concentrations” of oxybenzone, octinoxate, and avobenzone.¹⁹

The contamination pathway extends beyond direct submersion. Oxybenzone that is washed off in showers enters municipal wastewater systems. Wastewater treatment plants do not effectively remove the chemical during processing. The compound persists through treatment and enters receiving waters via treated effluent discharge.²⁰ It has been detected in surface waters, groundwater, and drinking water sources. It has been measured in fish tissue. The CDC’s Fourth National Report on Human Exposure to Environmental Chemicals, published in 2008, tested 2,517 Americans aged six and older and found oxybenzone present in the urine of 97 percent of participants.²¹ The chemical is in the ocean. It is in the water supply. It is in the fish. It is in the Americans who eat the fish. It is in the urine of the Americans who eat the fish, which returns to the water supply through the wastewater treatment plants that cannot remove it. The cycle is closed. The discharge is continuous.

A study published in Marine Policy documented that beach sand at shower discharge points on three Hawaiian islands (Maui, O’ahu, and Hawai’i) was contaminated with multiple petrochemical UV filters, and risk assessments for both sand and water samples yielded Risk Quotients exceeding 1.0—the threshold indicating a “serious threat to coral reef habitats.”²²

V. The Biological Damage

The peer-reviewed literature on oxybenzone toxicity to marine organisms is not preliminary. It is extensive, replicated, and damning by any regulatory standard the EPA applies to industrial dischargers.

Downs et al. (2016) demonstrated that oxybenzone is a phototoxicant, a genotoxicant, and a skeletal endocrine disruptor to coral organisms. In laboratory exposures, oxybenzone transformed the larval form (planula) of the coral Stylophora pistillata from a motile, swimming state to a “deformed, sessile condition.” It induced ossification—the premature formation of a calcium carbonate skeleton—that encased the entire planula in its own skeleton, effectively entombing a living organism in bone.²³

The dose-response data are precise. The 24-hour LC50—the concentration that kills 50 percent of exposed organisms—was 139 μg/L in light conditions and 779 μg/L in darkness. The deformity EC20—the concentration that causes deformity in 20 percent of organisms—was 6.5 μg/L in light and 10 μg/L in darkness. The coral cell LC20—the concentration lethal to 20 percent of cultured cells from seven different coral species at 4 hours in light—ranged from 0.062 μg/L to 8 μg/L.²⁴

The lowest lethal concentration documented in the study—62 parts per trillion—is an extraordinary toxicological finding. At 62 parts per trillion, one drop of oxybenzone in the equivalent of approximately 6.5 Olympic swimming pools is sufficient to begin killing coral cells. The concentrations measured in situ at USVI reef sites—75 to 1,400 μg/L—exceed this threshold by factors of 1,200 to 22,580.

The damage extends well beyond corals. A 2025 study in Propellants, Explosives, Pyrotechnics—no, wrong journal—a 2025 study in the Journal of Hazardous Materials demonstrated that oxybenzone at environmentally relevant concentrations induces metabolic dysregulation, oxidative stress, and neurotoxicity in marine fish embryos, with effects amplified by UV radiation.²⁵ A separate study in Comparative Biochemistry and Physiology found that dietary exposure to oxybenzone in reef fish (Stegastes fuscus) decreased health indicators, altered behavior, and reduced risk-perception, locomotion, and neural function.²⁶ Research on zebrafish (Danio rerio) documented that exposure to oxybenzone at just 1 μg/L—one part per billion—produced significant histopathological damage to gills and kidneys within 96 hours.²⁷

Under Section 502(13) of the Clean Water Act, a “toxic pollutant” is defined as one that, after discharge, causes “death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations” in organisms.²⁸ Oxybenzone causes death in coral cells. It causes deformity in coral larvae. It causes behavioral abnormalities in fish. It causes genetic damage in coral DNA. It causes physiological malfunctions in reproduction in zebrafish. The statute wrote the definition. The sunscreen matches it.

VI. The Legislative Acknowledgment

Three sovereign jurisdictions have reviewed the evidence and concluded that the discharge of sunscreen chemicals into their waters constitutes a threat sufficiently grave to warrant prohibition.

On July 3, 2018, Governor David Ige of Hawai’i signed Act 104 (SB 2571), making Hawai’i the first jurisdiction in the world to ban the sale and distribution of sunscreens containing oxybenzone and octinoxate. The ban took effect on January 1, 2021.²⁹ The legislative findings stated that “oxybenzone and octinoxate have been shown to cause genetic damage to corals and other marine organisms, degrade coral resiliency, and inhibit their ability to adjust to climate change.”

The U.S. Virgin Islands followed. On July 23, 2019, Governor Albert Bryan signed Act 8154, prohibiting the sale, offer for sale, and distribution of sunscreens containing oxybenzone, octinoxate, and octocrylene effective March 30, 2020.³⁰

The Republic of Palau enacted the Responsible Tourism Education Act of 2018, banning “reef-toxic sunscreen” containing any of ten specified UV-filtering chemicals, effective January 1, 2020.³¹

These legislative actions constitute an extraordinary admission. Three governments have concluded—based on the peer-reviewed evidence—that the chemical compounds in sunscreen are toxic pollutants that damage marine ecosystems when discharged into coastal waters. They have prohibited the sale of the product that produces the discharge. But the Clean Water Act does not regulate the sale of products. It regulates the discharge of pollutants into navigable waters. The bans address the supply chain. The CWA addresses the discharge event. The discharge event occurs when 88 million Americans enter the ocean wearing the product. The CWA prohibition applies to every one of those discharge events. The bans are an implicit acknowledgment that the CWA should apply. The EPA has never applied it.

VII. The Permitting Gap

The National Pollutant Discharge Elimination System (NPDES) was established under Section 402 of the Clean Water Act to provide the permitting mechanism through which point source discharges are authorized, conditioned, and monitored.³² The NPDES program is the operational heart of the CWA. It transforms the statute’s blanket prohibition on unauthorized discharges into an administrable system of discharge limitations, monitoring requirements, and compliance schedules.

As of 2026, the EPA and state-delegated programs administer approximately 335,000 active NPDES permits across the United States, covering facilities ranging from major municipal wastewater treatment plants discharging over one million gallons per day to small industrial operations and stormwater conveyances.³³ Approximately 7,000 of these are classified as “major” permits based on discharge volume and pollutant characteristics. The remaining 328,000 are “non-major.” The EPA has staff, infrastructure, and five decades of experience issuing permits to every category of discharger that Congress contemplated.

It has issued zero permits to swimmers.

An estimated 88 million Americans aged 16 and older swim in natural waters—oceans, lakes, rivers, or streams—each year, according to the National Survey on Recreation and the Environment.³⁴ NOAA’s National Ocean Recreation Expenditure Survey documented that 49 million adults participated in ocean and coastal recreation, spending more than 1.2 billion person-days along U.S. coastlines in a single year.³⁵ The sunscreen application rate among beachgoers is estimated at 40 to 60 percent, depending on the survey and UV conditions. At the conservative end—40 percent of 88 million—approximately 35 million Americans enter navigable waters while discharging oxybenzone and other organic UV-filtering compounds each summer.

Under Section 402(a), any person who proposes to discharge pollutants from a point source into navigable waters must obtain an NPDES permit before the discharge begins. For categories of dischargers that share common characteristics, the EPA or delegated state may issue a “general permit” covering the entire category, rather than requiring individual permits. The general permit mechanism exists precisely for situations where large numbers of similar dischargers engage in the same type of discharge activity. The EPA has issued general permits for construction stormwater, industrial stormwater, and concentrated animal feeding operations. It has not issued a general permit for recreational swimmers discharging sunscreen into coastal waters.

The Notice of Intent (NOI)—the document a discharger files to obtain coverage under a general permit—requires the applicant to identify the point source, the receiving water, the pollutants to be discharged, and the estimated quantities. In the 54 years since the NPDES program was created, not one swimmer has filed a Notice of Intent. Not one lifeguard has been designated as a facility operator. Not one beach has been issued a discharge monitoring report schedule. The compliance rate is zero.

VIII. The Federal Complicity

The regulatory architecture of the United States does not merely fail to prevent the discharge of sunscreen chemicals into navigable waters. It affirmatively facilitates it.

The FDA regulates sunscreen as an over-the-counter drug under 21 CFR Part 352 and its successor monograph framework. The agency has approved oxybenzone as a Category I (“generally recognized as safe and effective”) sunscreen active ingredient for over-the-counter use since 1978, permitting its inclusion in formulations at concentrations up to 6 percent.³⁶ The FDA’s 2019 proposed rule on sunscreen safety acknowledged that the agency lacked sufficient data to determine whether oxybenzone and eleven other organic UV filters were safe and effective, and requested additional data from manufacturers.³⁷ As of 2026, the final monograph has not been completed. Oxybenzone remains lawfully sold in approximately 3,500 sunscreen products across the United States.³⁸

The Centers for Disease Control and Prevention has documented that the compound is present in 97 percent of the American population. The National Park Service has documented its presence at hazardous concentrations in the waters of national parks. The NPS has responded by encouraging visitors to use “reef-friendly” alternatives and to cover up with protective clothing.³⁹ It has not responded by restricting access to the navigable waters into which the pollutant is being discharged. No beach in the National Park System has been posted with an NPDES permit number.

The EPA—the agency that administers both the NPDES permit program and the Toxic Substances Control Act, the agency that defines “pollutant” and “point source” and “navigable waters,” the agency that has levied millions of dollars in civil penalties against industrial facilities for discharging chemical wastes without permits—has funded research into the very contamination it has not enforced against. In 2014, the EPA awarded $2,499,583 to Texas Tech University “for research on perchlorate contamination after fireworks events near water sources.”⁴⁰ The same agency that funds research into chemical contamination of recreational waters has not initiated a single enforcement action against the 35 million annual dischargers who add documented toxic pollutants to those same waters every summer. The research and the enforcement inhabit parallel regulatory universes. The agency publishes the findings. It does not apply the statute.

IX. The Enforcement Impossibility

If the EPA were to enforce Section 301(a) of the Clean Water Act against unpermitted sunscreen discharges, the administrative consequences would exceed the operational capacity of the federal government.

At 35 million dischargers per summer, even the general permit pathway would require 35 million individual Notices of Intent to be filed, processed, and entered into the NPDES database. The EPA’s Integrated Compliance Information System (ICIS-NPDES) currently tracks approximately 335,000 permitted facilities. Adding 35 million swimmers would increase the database by a factor of 104. The storage requirements alone would exceed the system’s current capacity by approximately two orders of magnitude.

Monitoring compliance would present novel challenges. An NPDES permit typically requires the permittee to conduct regular discharge monitoring and submit Discharge Monitoring Reports (DMRs) to the permitting authority. A swimmer’s discharge is episodic, mobile, and unmeasurable in real time. The pollutant loading from a single swimmer depends on the brand, SPF, application thickness, body surface area, duration of submersion, water temperature, salinity, and wave action. No monitoring protocol in the EPA’s current guidance covers these variables. The agency would need to develop an entirely new analytical framework for a discharge category that varies by individual, by swim, and by minute.

Civil enforcement under Section 309(d) of the CWA provides for penalties of up to $64,618 per day per violation as of the 2024 inflation adjustment.⁴¹ A single day at a popular beach—say, Waikiki, with an estimated 72,000 daily visitors during peak season—could generate tens of thousands of individual violations, each carrying a maximum penalty of $64,618. The aggregate daily penalty exposure for a single beach on a single day exceeds $4.6 billion. Extrapolated across the approximately 6,500 public beaches monitored under the BEACH Act across the United States, the annual penalty exposure for the recreational swimming sector exceeds the gross domestic product of most nations.

The criminal provisions are equally impractical. Section 309(c)(1) provides for fines of not less than $2,500 nor more than $25,000 per day of violation, or imprisonment for not more than one year, or both, for negligent violations. A person who applies sunscreen, reads the SPF rating, walks to the ocean, and wades in has arguably acted negligently with respect to the discharge of a pollutant into navigable waters—the person knew or should have known that the sunscreen would wash off. At 35 million negligent violators per summer, the federal prison system would need to accommodate approximately 23 times its current total incarcerated population. The Bureau of Prisons operates 122 institutions with a combined capacity of approximately 151,000 inmates. Processing the recreational swimming caseload would require 232 new federal prisons, staffed and constructed before Labor Day.

X. The Sunscreen Industrial Complex

The U.S. sunscreen market generated approximately $2.7 billion in retail revenue in 2024, part of a global market valued at approximately $16.1 billion.⁴² The Skin Cancer Foundation, the American Academy of Dermatology, and the CDC all recommend the application of broad-spectrum sunscreen with SPF 30 or higher to all exposed skin whenever outdoors. The FDA’s own labeling requirements mandate directions for use that instruct consumers to “apply liberally 15 minutes before sun exposure” and to “reapply at least every 2 hours.”

The federal government simultaneously requires the product to be available, recommends its liberal application, and prohibits the discharge of its chemical constituents into navigable waters. One agency approves the drug. Another agency documents its environmental contamination. A third agency could enforce the statute that prohibits the contamination. The three agencies are the FDA, the NPS, and the EPA, respectively. All three are executive branch agencies of the same federal government. The government sells the chemical. It recommends the chemical. It studies the damage the chemical causes. It does not enforce the law that prohibits the discharge that causes the damage.

The industry is aware of the regulatory exposure. It has responded not by reformulating products to eliminate the pollutants—though mineral alternatives using zinc oxide and titanium dioxide exist and are equally effective—but by lobbying against state-level bans. The Personal Care Products Council, the industry trade association, submitted comments opposing Hawai’i’s Act 104 on the grounds that “there is no scientific evidence that under naturally occurring conditions, sunscreen ingredients… are contributing to” coral reef decline.⁴³ The Consumer Healthcare Products Association echoed the position. The legislative response was to pass the ban anyway. The industry’s position is that the documented contamination does not constitute a contribution to the documented damage. The peer-reviewed toxicological literature disagrees.

XI. Conclusion

The Clean Water Act defines “pollutant” as, among other things, “chemical wastes” discharged into water. Oxybenzone is a chemical. When it washes off the skin of a swimmer and enters the ocean, it is a waste—a spent compound being discarded from the conveyance that carried it into the water. The conveyance is the swimmer. The swimmer is discernible, confined, and discrete. The swimmer is a point source.

Section 301(a) makes it unlawful for any person to discharge any pollutant from a point source into navigable waters without an NPDES permit. Thirty-five million Americans discharge documented chemical pollutants into navigable waters every summer. The EPA has not issued a single permit. The compliance rate is zero. It has been zero since the first tube of Coppertone was applied to the first beachgoer to wade into the first wave after October 18, 1972.

The contamination is not theoretical. The NPS has measured it in national park waters. The CDC has measured it in 97 percent of Americans. Peer-reviewed studies have documented coral mortality at 62 parts per trillion. Three sovereign jurisdictions have banned the substance. The EPA has funded research into the contamination. The EPA has not enforced the statute that prohibits the contamination. The statute is 54 years old. The contamination is annual. The enforcement gap is the width of a beach towel and the depth of the entire federal regulatory apparatus.

This afternoon, somewhere on the American coastline, a parent will apply SPF 50 to a child’s shoulders, rub it in carefully, and walk that child into the Atlantic Ocean. The parent will believe they are protecting the child. They will be correct. They will also be discharging chemical wastes into navigable waters of the United States from a discernible, confined, and discrete conveyance without a National Pollutant Discharge Elimination System permit, in violation of Section 301(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1311(a), as amended. The maximum civil penalty is $64,618 per day. The child will not know this. The lifeguard will not know this. The EPA will not act on this. The ocean will absorb the oxybenzone at 25 percent per 20 minutes. The coral, if any remains, will absorb it at 62 parts per trillion.

The most popular summer health recommendation in the United States is a federal water pollution violation. The violation is applied liberally and reapplied every two hours.

Ergo.