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The Supreme Court appears determined to shrink the Clean Water Act

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Monday, October 3, 2022

Jaime Sigaran, right, of American Rivers, and his sister Bethsaida attend a rally to call for protection of the Clean Water Act outside of the US Supreme Court as the Court heard arguments in the case of Sackett v. Environmental Protection Agency on October 3, the first day of the new term. | Tom Williams/CQ-Roll Call, Inc via Getty Images But it isn’t sure how. Sackett v. Environmental Protection Agency, which the Supreme Court heard on Monday, is a devilishly difficult case. It involves the proper meaning of a vague phrase in the Clean Water Act, the principal law protecting America’s waters from a wide range of foreign substances. That 1972 act prohibits “discharge of pollutants” into “navigable waters.” But it also defines the term “navigable waters” vaguely and counterintuitively, to include all “waters of the United States, including the territorial seas.” While nearly everyone agrees that major bodies of water such as rivers and large lakes qualify as “waters of the United States,” Sackett, which involves a couple that wants to fill in wetlands on their residential lot near an Idaho lake, asks just how closely a wetland must be connected to such a larger body of water before it is also subject to the Clean Water Act’s prohibitions. A decision removing the act’s protections from even some wetlands could have significant implications for the nation’s water supply, as that nation’s water system is interconnected. A pollutant dumped in a wetland miles from a major lake can nonetheless migrate to that lake. On the eve of oral arguments in Sackett, the Court appeared likely to settle on one of two approaches suggested by two conservative justices in Rapanos v. United States (2006), the last Supreme Court case to consider how to define the term “waters of the United States.” But neither test seemed to satisfy a majority of the Court during Monday’s oral argument. At least six of the justices expressed concerns that a narrow reading of the Clean Water Act suggested by Justice Antonin Scalia (who was joined, in 2006, by three of his fellow Republican appointees) in Rapanos is at odds with the act’s text. Indeed, a majority of the justices seemed so critical of Scalia’s approach — and of conservative lawyer Damien Schiff’s advocacy for that rule — that Schiff seemed to be headed for a loss when he sat down after presenting his first round of arguments to the justices. Yet, if environmentalists thought they had reason to celebrate when Schiff left the podium halfway through Monday’s argument, those hopes were dashed not long after DOJ attorney Brian Fletcher began his oral arguments. A majority of the justices appeared concerned that the alternative test Justice Anthony Kennedy proposed in Rapanos is too vague to be manageable. Worse, for environmentalists and for the government, the Court’s Republican-appointed majority appeared equally concerned that the federal government’s reading of the statute is too vague — and that it gives landowners too little warning about whether they will have to comply with the law. The most likely result in Sackett, in other words, is that the Court will make a significant cut at the Clean Water Act, but perhaps not the deepest one that environmentalists feared before Monday’s arguments. It is less clear whether the justices will come up with a test to determine which waters are subject to the law that brings any real clarity to this difficult question. The Court appears dubious of a narrow reading of the Clean Water Act proposed by Justice Scalia Plaintiffs Chantell and Michael Sackett bought a residential lot near Priest Lake in Idaho, much of which consists of wetlands. They attempted to fill in these wetlands with sand and gravel, but the federal government told them to stop — on the theory that effectively destroying these wetlands would violate the Clean Water Act. Although sand and gravel aren’t the sorts of things that many people ordinarily think of as pollutants, the Clean Water Act prevents the destruction of at least some wetlands because of the natural role wetlands play in protecting more significant bodies of water from pollution. Wetlands act as filters that trap pollutants that could otherwise infiltrate navigable waters. They also act as sponges to absorb floodwaters. But the question of which wetlands qualify as “waters of the United States,” and therefore are protected by the Clean Water Act, turns out to be quite difficult. In Rapanos, four justices joined an opinion by Justice Scalia that would have excluded most American wetlands from the act’s scope. Under Scalia’s proposed test, a wetland is only subject to the act if it has a “continuous surface connection” with a “relatively permanent body of water” that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” According to an amicus brief filed by professional associations representing water regulators and managers, Scalia’s test would “exclude 51% (if not more) of the Nation’s wetlands” from the act’s protections. But many of the justices suggested on Monday that Scalia’s proposed rule from Rapanos is at odds with a provision of the Clean Water Act that indicates that the act does cover wetlands that are “adjacent” to navigable bodies of water. Chief Justice John Roberts, for example, argued that a train station ordinarily is considered to be “adjacent” to the train tracks, even if those tracks do not literally touch the train station physically. Justice Brett Kavanaugh noted that, in 1977, the Army Corps of Engineers made it clear that a wetland may be “adjacent” to a body of water even if it is separated from that larger body by berms, dunes, dikes, or other such features. And Kavanaugh seemed to argue that Congress incorporated the Army Corps of Engineers’ understanding into the Clean Water Act itself. As Justice Amy Coney Barrett told Schiff, “the biggest problem for you, clearly,” is that the law seems to encompass wetlands that are merely nearby a larger body of water, and not just wetlands that are so integrated into that body of water that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” The Court could ultimately settle on a rule that is even more restrictive than Scalia’s Yet, while a majority of the Court did seem to shy away from Scalia’s proposed rule on Monday, all of the Court’s six Republican appointees appeared concerned with what Justice Samuel Alito referred to as a “vagueness problem.” Or, as Justice Neil Gorsuch put it, how is a “reasonable landowner” supposed to determine whether their land is covered by the Clean Water Act? In Rapanos, Justice Kennedy proposed what is often referred to as the “significant nexus” test. Under this test, wetlands are subject to the act’s restrictions if they “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” But several of the justices fretted that this test is too vague to allow landowners to determine upfront whether they must comply with the law. Which is not to say that landowners are helpless. As Justice Ketanji Brown Jackson pointed out, a landowner may ask the EPA to look at their land and determine if it is subject to the act before they begin a construction project on that land. And even if the act does apply, a landowner may still seek a permit allowing them to build despite the act’s restrictions. But it is far from clear that a majority of the Court will deem these procedures sufficient to protect landowners. Several members of the Court also seemed to have concerns that the provision of the Clean Water Act stating that “adjacent” wetlands fall within the scope of the act is also too vague. Could a wetland be “adjacent” to a lake if it was three miles away from it, Gorsuch asked at one point? What if it was just one mile away? And the government’s proposed reading of the statute — that a wetland is covered if it is “in reasonable proximity to other waters of the United States” — doesn’t really do much to clear up this vagueness problem. The ultimate problem facing the Court is that the statute itself does not draw a clear line that determines when a wetland is so far from a larger body of water that the act no longer applies. And without a clear line, the conservative Court is likely to determine that edge cases simply do not qualify. Indeed, in the worst case for the government, the Court could declare much of the act void for vagueness. As Gorsuch has written, in a somewhat hyperbolic majority opinion for the Court, “In our constitutional order, a vague law is no law at all.” In any event, it’s not yet clear that the Court will go quite that far. Most of the justices appeared to spend Monday morning struggling with how to read a law that gives them little clear guidance, at least with respect to close cases. How they resolve that remains to be seen.

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French People Are Fighting Over Giant Pools of Water

The underground reserves that fill mega-basins are not an infinite resource.

These are not your average reservoirs.The plastic-lined cavities span, on average, 20 acres—more than 15 American football fields. Nicknamed “mega-basins,” they resemble enormous swimming pools scooped into farmland; about 100 basin projects are in the works across France. In wetter winter months, the basins are pumped full of groundwater; during punishing droughts and heat waves, those waters are meant to provide “life insurance” for farmers, who are among the region’s heaviest water users.In 2022, France faced its worst drought on record; 2023 stands to be worse still. In 2020, anticipating future dry spells, federal environmental and agricultural agencies proposed prioritizing and subsidizing basins as “the most satisfactory way of securing water resources.”But critics say that this so-called climate-change adaptation is, in reality, a maladaptation—a lesson in how not to prepare for water scarcity. Already, almost two-thirds of the world’s population experiences a water shortage for at least one month each year, and “basins are absolutely not the solution,” Christian Amblard, a hydrobiologist and an honorary director at France’s National Center for Scientific Research, told me.Humans have, for millennia, smoothed out seasonal water availability by damming rivers or lakes to create artificial reservoirs. Jordan’s Jawa Dam, the world’s oldest, is 5,000 years old. But the first mega-basins in France were built only a few decades ago and, unlike traditional dams, draw some of their reserves from underground. Once on the surface, this water becomes vulnerable to evaporation (even more so as the planet warms) and to pathogens including bacteria and toxic algae.France is not the only country collecting groundwater to combat major droughts. Others have done the same, with devastating effects on local people and ecosystems. In Petorca, Chile, about 30 groundwater-rights bearers control 60 percent of the region’s total streamflow; most residents depend on a few daily hours of access to water-tank trucks for their needs. In India, groundwater is a primary source for drinking water; overexploitation has led to declining groundwater levels across the country and could slash some winter agricultural yields by up to two-thirds, experts warn. Iran has increased its groundwater withdrawal by 200,000 percent over the past 50-plus years and now faces a potential state of “water bankruptcy.”[Read: Suddenly, California has too much water]Climate change will leave many regions alternating between harsh multiyear droughts and sudden, extreme flooding—all as the water frozen in Earth’s poles, glaciers, and permafrost melts away. Groundwater might seem to be a limitless resource of moisture in the unpredictable and imbalanced future. But it’s not, and scientists say that the freshwater lying beneath our feet should be managed  like any other nonrenewable resource.“They’re thinking very short-term,” Amblard said of mega-basin proponents. “Water needs to stay in the ground.”Surface water is all the water we can observe: ponds, streams, rivers, lakes, seas, and oceans. It coats almost three-quarters of the planet. When we imagine water, we usually envision surface water.Our stores of groundwater, on the other hand, are invisible and vast.  Most of this water is stored in the gaps between rocks, sediment, and sand—think of it like the moisture in a sopping wet sponge. Some groundwater is relatively young, but some represents the remains of rain that fell thousands of years ago. Overall, groundwater accounts for 98 percent of Earth’s unfrozen freshwater. It provides one-third of global drinking water and nearly half of the planet’s agricultural irrigation.Water is constantly cycling between below-ground stores and the world above. When rain falls or snow melts, some replenishes surface waters, some evaporates, and some filters down into underground aquifers. Inversely, aquifers recharge surface waters like lakes and wetlands, and pop up to form mountain springs or oases in arid lands.Despite our utter dependence on groundwater, we know relatively little about it. Even within the hydrological community and at global water summits, “groundwater is kind of sidelined,” Karen Villholth, a groundwater expert and the director of Water Cycle Innovation, in South Africa, told me. It’s technically more difficult to measure than visible water, more complex in its fluid dynamics, and historically under- or unregulated. It “is often poorly understood, and consequently undervalued, mismanaged and even abused,” UNESCO declared in 2022. “It’s not so easy to grapple with,” Villholth said. “It’s simply easier to avoid.”Take a crucial U.S. groundwater case, 1861’s Frazier v. Brown. The dispute involved two feuding neighbors and “a certain hole, wickedly and maliciously dug, for the purpose of destroying” a water spring that had, “from time immemorial, ran and oozed, out of the ground.” Frazier v. Brown questioned the rights of a landowner to subterranean water on the property. Ohio’s Supreme Court ultimately argued against any such right, on the premise that groundwater was too mysterious to regulate, “so secret, occult and concealed” were its origins and movement. (The case has since been overturned.)Today, groundwater is still a mystery, says Elisabeth Lictevout, a hydrogeologist and the director of the International Groundwater Resources Assessment Centre in the Netherlands. Scientists and state officials often don’t have a complete grasp of groundwater’s location, geology, depth, volume, and quality. They’re rarely certain of how quickly it can be replenished, or exactly how much is being pumped away in legal and illegal operations. “Today we are clearly not capable of doing a worldwide groundwater survey,” Lictevout told me. Without more precise data, we lack useful models that could better guide its responsible management. “It’s a big problem,” she said. “It’s revolting, even.”[Read: 2050 is closer than 1990]Water experts are certain, however, that humans are relying on groundwater more than ever. UNESCO reports that groundwater use is at an all-time high, with a global sixfold increase over the past 70 years. Across the planet, groundwater in arid and semi-arid regions—including in the U.S. High Plains and Central Valley aquifers, the North China Plain, Australia’s Canning Basin, the Northwest Sahara Aquifer System, South America’s Guarani Aquifer, and several aquifers beneath northwestern India and the Middle East—is experiencing rapid depletion. In 2013, the U.S. Geological Survey found that the country had tripled the previous century’s groundwater-withdrawal rate by 2008. Many aquifers—which, because they are subterranean, cannot easily be cleaned—are also being contaminated by toxic chemicals, pesticides and fertilizers, industrial discharge, waste disposal, and pumping-related pollutants.Because these waters are hidden and can seem “infinite,” Lictevout said, few people “see the consequences of our actions.” She and other hydrology experts often turn to a fiscal analogy: All of the planet’s freshwater represents a bank account. Rainfall and snowmelt are the income. Evaporation and water pumping are the expenditures. Rivers, lakes, and reservoirs are the checking account. Groundwater is the savings or retirement fund—which we are tapping into.“We have to be careful about dipping into our savings,” says Jay Famiglietti, an Arizona State University hydrologist and the executive director emeritus of the University of Saskatchewan’s Global Institute for Water Security.As they face down hotter and drier growing seasons, some French farmers say the water backup of basins is crucial to food security. (Agriculture, according to the federal government, accounts for two-thirds of France’s total water consumption.)“If we don’t continue with this project, there are farms that won’t survive,” Francois Petorin, an administrator of the 200-plus-farm Water Co-op 79, in Western France, has said. "We have no other choice."Under a deal with local water authorities, farmers can access set volumes from the basins in exchange for reducing pesticide use, planting fields with hedges, and increasing biodiversity. Proponents of the mega-basins also argue that they would be careful to pump only when groundwater levels are above certain thresholds and would draw from shallow aquifers that could be quickly recharged by precipitation.[Read: One nation under water]Experts don’t disagree that groundwater must be a part of adapting to climate change. But many argue that overdependence on and overexploitation of a shrinking natural resource cannot be the solution to a problem created by the overdependence on and overexploitation of nonrenewable natural resources.Instead, experts told me that regulated groundwater tapping could be paired with other adaptations—many of which involve reducing water use and consumption. Farmers could swap out water-intensive crops such as corn (which is grown on 60 percent of France’s irrigated lands, much of it for livestock) in favor of drought-resistant species adapted to local climates. They could employ  more efficient irrigation technologies and plow less, which would make for healthier, more permeable soil, which could retain more water and filter it down more effectively to aquifers. Reducing meat consumption and cutting down on food waste would also shrink water use. Instead of drawing groundwater up for dry seasons, we could inject and help infuse water into depleted aquifers for storage.“It is a common resource, at the end of the day,” Villholth said. “It’s an issue of equity. It’s almost a democratic question.”That’s certainly how France’s mega-basin opponents see it. They have staged numerous protests and acts of civil disobedience, including planting hedges on land earmarked for basins and excavating crucial pumps and pipes. In March, thousands of activists (30,000 according to organizers, 6,000 according to state officials) faced off against 3,000 militarized police over the construction of a new mega-basin in Sainte-Soline, in western France, that would supply 12 farms. Organizers say 200-plus people were injured by tear-gas grenades and rubber-ball launchers. A few weeks later, a French court approved the construction of 16 heavily subsidized mega-reservoirs in western France, including the one at Sainte-Soline.This is one advantage of mega-basins: They make the invisible hyper-visible. “It puts the matter in front of everybody,” Villholth said. Pulled to the surface, groundwater becomes more measurable, as does its use—as do debates over the ethics of its use. But that won’t tell us how much is left. If we’re not careful, we’ll discover that only once it’s all tapped out.  

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