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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Droughts, floods and extreme heat: here’s how Manitoba is grappling with its water woes

By Julia-Simone Rutgers The Manitoba government is taking a first step toward dealing with water issues made worse by climate change. This is what you need to know

By Julia-Simone Rutgers From nutrient-rich wetlands and 100,000 lakes to a dry southern region and an Arctic port, Manitoba is a province defined by water — after all, nearly a fifth of the province is covered in it. Now, in an update nearly 20 years in the waiting, the Manitoba government has released a strategy to manage its water resources — factoring in the impacts of a warming climate for the first time. The Manitoba water strategy, released earlier this month, is a far-reaching document covering conservation, climate resilience, water scarcity, biodiversity and water infrastructure. According to Dimple Roy, a water policy expert with the International Institute for Sustainable Development, a Winnipeg-based think tank, Manitoba’s water strategy takes a “broad brushstrokes” approach that lacks detail. “Manitobans deeply care about water. We all have strong connections beyond the mundane with our waters, so it should be an exciting thing for Manitobans to see that this kind of strategy is out,” Roy said. But at the end of the day the new strategy document is little more than “a placeholder,” she said. “It’s exciting to see that we have this sort of strategy initiated — but I say that with cautious optimism. Without an action plan, this is a shell.” Here’s what you need to know about the state of water issues in Manitoba and the provincial response to the climate crisis. Why does Manitoba need a water strategy, anyway? Manitoba’s new water strategy is, at best, a guiding document. The strategy’s 11 “focus areas” and 47 “strategic objectives” are meant to provide a touchstone for government leaders to use when making decisions about how to use, conserve and protect the province’s water resources. It’s billed as a “durable guiding document,” with the finer details to be established in a second “water action plan” slated for release in spring 2023. We’ve tripled our Prairies coverage The Narwhal’s Prairies bureau is here to bring you stories on energy and the environment you won’t find anywhere else. Stay tapped in by signing up for a weekly dose of our ad‑free, independent journalism. The Narwhal’s Prairies bureau is here to bring you stories on energy and the environment you won’t find anywhere else. Stay tapped in by signing up for a weekly dose of our ad‑free, independent journalism. We’ve tripled our Prairies coverage Several other Canadian jurisdictions have developed similar documents. Quebec’s provincial water strategy was released in 2018, as was a similar one in New Brunswick. Alberta first released a water strategy in 2003, which was last updated in 2008. Prince Edward Island’s water management plan, released this past summer, was criticized as “leaky,” by water protection groups who worried it was rushed and lacked detail about how it will be implemented. From floods to droughts: why is Manitoba’s water strategy so important right now? As the strategy is careful to point out, “a lot has changed,” since Manitoba last took a holistic look at water management. According to Roy, it’s not unusual to see a 20-year gap between water policy documents. In fact, “20 years is not that long for a strategy,” since these kinds of documents are expected to look decades into the future. But when the last strategy was released in 2003, climate change was not fully understood by many governments. The past two decades have shown the impact of a warming climate — and a growing population — on the province’s water systems. This past spring was marked by extreme wet weather and floods; the years before were scored by a perilous drought that threatened the livelihoods of farmers in the province’s dry, southern regions. “So many clear implications of climate change are visible in our water systems,” Roy said. “That was not reflected in our previous strategy.” Nearly 20 years after the first Manitoba water strategy was released, the province’s new approach promises to take climate change into account after seeing more frequent extreme weather events in the past several years. Photo: Aaron Vincent Elkaim / The Narwhal Most crucially: a changing climate and human-made landscape changes have transformed the ways water moves and rests throughout the province. The timing and amounts of streamflows have changed, and storms, floods and droughts have become more common and intense, the strategy said. Going forward, the strategy added, “climate change is expected to make extreme heat and drought-driven water shortages more frequent and severe.” Not to mention, Manitoba’s population is expected to grow by more than 25 per cent (about 360,000 people) between now and the 2040s — and that growth is expected to strain the province’s water resources. “Manitoba’s water supplies are not unlimited,” the strategy said. “Without a concerted effort, there is an increasing risk that available water supplies will not meet this growing demand.” Is the Manitoba government taking climate change seriously? The word “climate” appears more than 60 times in the 48-page document. One of the key focus areas is to “build our preparedness and resilience to a variable and changing climate,” acknowledging the threats of extreme weather, summer water supply shortages and flood-prone springs. Climate change will put “additional strain” on the province’s aging water infrastructure, the strategy said, and upgrading or building new infrastructure is a key goal. Water supply, too, is in focus for the government, though “water availability under a changing climate and future demand across sectors are not well understood,” according to the strategy. The urgency of a changing water supply has put conservation at the top of the strategy’s priority list. The document makes a point of stressing that communities, businesses, farmers and individuals will need to adapt to and mitigate the impacts of a changing climate — though it’s not yet clear how. At a press conference in early November, Manitoba Premier Heather Stefanson stressed the strategy’s “every drop counts” motto. Manitoba Premier Heather Stefanson announced the water strategy at an event in Winnipeg in early November, stressing the province’s plan to make water conservation a top priority. Photo: Ruth Bonneville / Winnipeg Free Press Environment, Climate and Parks Minister Jeff Wharton acknowledged the strategy is a “starting point” for better water management in the province. Photo: Ruth Bonneville / Winnipeg Free Press The strategy also highlights the importance of biodiversity. Manitoba has lost or degraded 70 per cent of its southern wetlands — some of the most productive ecosystems in the world — since 1990. The strategy notes restoring and protecting wetlands as natural infrastructure could bring about economic and environmental benefits. For experts like Roy, the government’s approach to climate change is, generally, “a step in the right direction.” “They have checked the boxes, they have done a good job of highlighting the climate imperative … it’s coming through quite clearly,” Roy said. But it’s missing the follow-through. “What I’m not seeing in this strategy document is specifics: what exactly are we doing, who is doing it, what are the resource allocations to do it?” Is Manitoba going to charge more for water? When the water strategy first dropped, the possibility of new fees for water led the news. CBC reported the “province may test waters of new pricing system” and the Canadian Press said the water strategy “floats the idea of new water pricing structures to help control demand.” The Winnipeg Free Press reported Premier Stefanson declined to answer a question about whether the province would consider upping its water-use fees — which currently range from one to two dollars per million litres for industrial and recreational use and for heating and cooling projects (municipal and agricultural users are exempt from fees). Well, it’s true: the strategy makes a brief (so brief you might miss it) mention of possible “new water-pricing structures” as one of a list of tools that could be used to manage future water demand — along with options for homeowners, including upgraded leak detection, rainwater collection and landscaping that favours plants that need less water. In an emailed statement, a representative from the Environment, Climate and Parks Department clarified the strategy “does not include any specific objectives on water pricing.” Instead, it’s looking to find innovative ways to do more with less water, including “practices that can reduce water use through conservation or efficiency,” the spokesperson wrote. Droughts struck southern Manitoba in 2021, prompting concerns over water availability and causing interruption to agricultural businesses. Photo: Aaron Vincent Elkaim / The Narwhal That includes things like reducing the amount of water needed in production and processing plants, changing farming practices to make better use of irrigation and, maybe, water pricing. Meanwhile, the government is also considering other options like green bonds, green financing and other investment opportunities focused on nature-based solutions to help pay for water infrastructure. Regardless of whether water comes with a new cost, consumers will need to start thinking about water with sustainability in mind in the years to come. Some areas in southern Manitoba are already close to fully allocating the existing water supply, meaning those regions are already dealing with water scarcity, which has stifled economic development in the largely agriculture-driven southern belts. Overall, the strategy said it aims to encourage Manitobans to “respect the value of water, use only what is needed and find ways to stretch limited supplies further.” Did the Manitoba government consult with Indigenous communities? Building the guiding document took two years and in that time the government consulted stakeholders from all corners of the province. The government spoke to the Manitoba Association of Watersheds annual conference and the Northern Association of Community Councils annual general meeting, held at least 35 “in-depth” interviews with water experts, and asked Manitobans to share their thoughts through a survey and virtual “idea board” that together received more than 500 responses. In those two years, however, consultation with Indigneous communities was sparse. By the strategy’s own admission “some Indigenous organizations and individuals have participated in the engagement for this strategy,” but “more direct and collaborative work with Indigenous governments and rights holders is essential.” Asked what consultation had been done with Indigenous governments to date and what consultation is planned going forward, a spokesperson for the Environment, Climate and Parks Department copied verbatim from the water strategy, stating the government holds this consultation as a “central commitment” to the strategy and has “initiated this outreach.” The Association of Manitoba Chiefs did not respond to a request for comment by publication time. What’s next for the Manitoba government’s plan for water? All parties agree the strategy is only a starting point — one that’s lacking in detail. Those details are expected by spring 2023, when the province plans to unveil the second document in its water strategy: a water action plan. That action plan, which will be developed in collaboration with stakeholders and the public over the coming months, is expected to outline the short-, medium- and long-term steps the government will take to move from strategy to reality. If the strategy gives the “what” and “why” of water management in Manitoba, the action plan will bring the “how.” Until then, it’s difficult to judge exactly what this strategy will mean for the future of water in Manitoba. Roy said the action plan will need to include specific plans to allocate resources — both human and financial — along with dedicated policies, programming, monitoring and data collection. All in all, Roy said, “We need more information on how this will be achieved.”

EPA reports drop in significant Clean Water Act violations

Clean Water Act violations reported by the Environmental Protection Agency (EPA) dropped by more than half in the years following an interstate compliance agreement, the EPA announced Tuesday. In 2018, the EPA and 47 states reached an agreement to cut CWA noncompliance 50 percent in the next five years. The effort has reached its goal...

Clean Water Act violations reported by the Environmental Protection Agency (EPA) dropped by more than half in the years following an interstate compliance agreement, the EPA announced Tuesday. In 2018, the EPA and 47 states reached an agreement to cut CWA noncompliance 50 percent in the next five years. The effort has reached its goal ahead of schedule, slashing noncompliance from 20.3 percent in early 2018 to 9 percent, according to the agency. The initiative applied to about 46,000 facilities nationwide that are subject to CWA regulation. “Five years ago, EPA set an ambitious goal for cutting the rate of significant noncompliance with Clean Water Act permits in half,” Larry Starfield, Acting Assistant Administrator for the EPA Office of Enforcement and Compliance Assurance, said in a statement. “Today I’m pleased to announce that we have met and exceeded that target achieving a historically low rate of 9 percent. This notable achievement speaks to what EPA and the states can accomplish together to improve compliance and reduce Clean Water Act violations.” The progress on the initiative reduces the number of facilities with “significant non-compliance”-level violations by about 4,000 and eliminated about 23.7 million pounds of illegally discharged water pollutants, according to the EPA. The agency attributed the achievement to a combination of state-federal partnerships, including more than 600 meetings with individual state regulators. The announcement comes as the EPA is reportedly considering a long-term presence in Jackson, Miss., after flooding knocked out the city’s water treatment plant, causing the city’s second water crisis in as many years. The City Council voted this week to enter an “interim stipulated order” with the EPA, lasting a year and implemented through a third party. EPA Administrator Michael Regan said the agreement must still be approved through a federal judge and that further long-term measures remain under discussion.

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