By Kristi Eaton for The Daily Yonder.
Broadcast version by Eric Tegethoff for Northern Rockies News Service for the Public News Service/Daily Yonder Collaboration

A coalition of groups focused on water rights filed a brief in June with the U.S. Supreme Court in an effort to keep the court from narrowing the definition of federally protected waters.

Waterkeeper Alliance, San Francisco Baykeeper, Bayou City Waterkeeper, and nearly 50 additional Waterkeeper groups from across the country filed an amicus brief with the Supreme Court in support of the U.S. Environmental Protection Agency in the case Sackett v EPA.

The clean water advocates are asking the Supreme Court to uphold the Ninth Circuit Court of Appeals ruling about the scope of wetlands protected under the landmark Clean Water Act.

The central question in Sackett v EPA is what standard should apply to determine protection for wetlands that are adjacent to traditional navigable waters and their tributaries. The petitioners in the appeal have asked the Supreme Court to overturn the Ninth Circuit's ruling that adjacent wetlands, including those on their Idaho property, merit federal protection, which would advance a narrow interpretation of the CWA. The amicus brief contends that, to achieve the law's objective, it must protect all waters that make up aquatic ecosystems, not just navigable waters. The Supreme Court will hear the case this fall.

"Idaho has unique geographical and hydrologic features that form 'closed basins' which would be excluded from federal pollution protection if Clean Water Act jurisdiction was reduced by constricting the definition of which 'waters of the United States' are federally protected," said Buck Ryan, executive director of Snake River Waterkeeper, in an interview with The Daily Yonder. "We joined in filing the brief to ensure these waterways - which are critical to water quality in the Snake River as well as for endangered species like bull trout - enjoy the federal statutory protections Congress intended in drafting the Act."

The Clean Water Act was enacted in 1972 to protect the health of the waters of the United States, promote healthy aquatic ecosystems, and regulate the discharge of pollutants into waterways.

In states like Idaho, Ryan said, "where industry and ag-friendly legislatures offer the bare minimum in terms of clean water safeguards, the federal Clean Water Act is the preeminent (and in many cases, only) guarantee of legal protection for rural communities to have fishable, swimmable, and drinkable water."

Kelly Hunter Foster, senior attorney with Waterkeeper Alliance, said many iconic and significant waters across the country lack continuous surface connections to traditionally defined navigable waters and could lose federal clean water protections that have been in place for nearly 50 years if the court were to adopt the petitioners' navigability theories.

"Congress originally designed the CWA to broadly protect all waters of the United States-not only those used for commercial navigation. The scope cannot be narrowed if we are to ensure the integrity of the law and the health of our waterways," Foster said in a press statement.

The Supreme Court's hearing of the challenge to the CWA occurs as the court has revisited long established precedents. Last month the court ruled that the Clean Air Act does not give the U.S. Environmental Protection Agency blanket regulations against power plants. The Clean Air Act, initially passed in 1963 and revised many times since, was one of the nation's first and most influential environmental laws.

Waterkeeper Alliance Chief Executive Officer Marc Yaggi called the court's interpretation of the Clean Air Act a "gift to polluters and will pose a major threat to clean water."

"The majority's new major questions doctrine handcuffs the federal government's ability to respond to emergencies that weren't specifically contemplated at the time statutes are passed," Yaggi said in a press statement. "The idea that our current dysfunctional Congress might be expected to more directly authorize EPA to broadly 'tackle' the climate emergency is absurd. This sets a dangerous precedent not just for EPA and our climate, but for all agencies and future emergencies."

Albert Lin, a law professor at the University of California Davis who specializes in environmental and natural resources law, said in an interview with The Daily Yonder that the Clear Air Act and Clean Water Act cases seem to be asking two different questions. The Clean Air Act case used the major questions doctrine, he said, and he believes it's unlikely that will be the case in the Clean Water Act case.

"It seems unlikely given that the sort of question at issue in the Clean Water Act case, the extent of the government's regulatory authority over wetlands is an issue that the agencies - EPA and the Army Corps of Engineers - have been grappling with for decades," he said. "And that it's not the sort of situation as in West Virginia vs. EPA, where you had, at least the way the court puts it, EPA asserting this apparently new authority over how kind of energy is produced and distributed and generated."

Also in June, the Supreme Court overturned its landmark Roe v. Wade decision of 1973, which provided a constitutional basis protecting the right to abortion services.

Kristi Eaton wrote this article for The Daily Yonder.


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The Blackwater River, which flows more than 30 miles through West Virginia's Allegheny Mountains, ranks among the top 10 most endangered rivers in the nation, according to a new report.

The river is threatened by a proposed four-lane highway construction project which would cross all of its headwater streams.

Judy Rodd, executive director of the group Friends of Blackwater, said Corridor H would involve building a bridge in an area honeycombed with old mines and explains the construction could compromise decades-old work to actively treat the water in the North Fork of the Blackwater impacted by acid mine drainage.

She is worried the highway could be a major environmental setback for the region.

"We expect in the next year to really clean up this river and bring back a trout fishery that used to be there," Rodd explained. "However, if they start building this bridge, they could be opening up old coal mines, old tunnels, which are filled with acid pollution."

Rodd noted a draft environmental impact review of the proposed project, required under federal rules, is expected to be released in the coming months.

Small businesses and the local outdoor recreation economy depend on the scenic views and wilderness surrounding the towns of Thomas and Davis. Rodd argued a four-lane highway, with accompanying construction, light and noise pollution, would drastically alter the landscape.

"It's tranquil, it's dramatic," Rodd observed. "You got bald eagles soaring overhead, you got rushing water, you got fishermen in the Blackwater Falls State Park area."

Olivia Miller, program director for the Highlands Conservancy, said the highway could be rerouted to avoid the Blackwater Falls area, and pointed to an online petition which will allow concerned residents to voice their support for a Northern route to the Federal Highway Administration.

"Right now, we are asking folks to go to the American Rivers website and fill out the action alert to send a letter to highway officials," Miller stressed.

The Blackwater River is home to the endangered Cheat Mountain salamander, eastern brook trout and many other native species.

A new, high-tech wastewater treatment incinerator, used in only a few states, is on the wish list for one Michigan city.

Former state Representative - now Mayor of Warren - Lori Stone is asking her former colleagues in the Environment, Great Lakes and Energy Subcommittee for up to $100 million to upgrade her city's wastewater treatment system.

Warren's current plant was built in 1957 and serves over 137,000 residents. The new incinerator would oxidize organic matter contained in the sludge.

Warren Wastewater Treatment Plant Director Donna Dordeski said the old system is failing.

"One of the hearths of the furnace collapsed and failed, and we couldn't use it any longer until repairs had been completed," said Dordeski. "So, from the beginning - and all the waiting, getting the contractors and repairs completed - it took four months."

Dordeski said they're approaching the final steps of getting permits for the project. And they're still seeking funds, at the state and federal levels - including infrastructure grants that may be available.

The city has around 500 miles of sanitary sewer pipes to ensure its wastewater is treated and disposed of properly. Dordeski said when the current system breaks down, it affects local residents. Trucks have to pick up and carry sludge back and forth through their neighborhoods to nearby landfills.

"That's a 24-hour operation," said Dordeski. "We usually have several trucks. Its a continuous process, five days a week, where we process the sludge and those trucks have to be nearby, available, be loaded, exchanged for a new one. So, that's what has to happen when our incinerator is not operational."

Michigan has 95 wastewater treatment plants.

Warren's mayor believes if the new incinerator is approved, the city will have the opportunity to be the proving ground as a pilot program for this technology.




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As Wyoming and other states grapple with shrinking Colorado River water levels - new research pinpoints how much water is being diverted to feed cattle, to sprawling desert cities, and the river's 40 million other stakeholders.

The stakes are high in a time of persistent and widespread drought.

Brian Richter - president of Sustainable Waters - said if Upper Basin states can't deliver the volume of water required under a century-old agreement, Lower Basin states could force the issue with what's known as a compact call.

"The likely result would be that the Upper Basin states, including Wyoming, would be forced to use less water," said Richter, "so that more water could be flowing into Lake Powell and downstream into the Lower Basin."

Researchers found that in Upper Basin states, cattle-feed crops soak up 90% of all irrigation water - which is three times the amount that goes to all cities, towns, commercial and industrial uses combined.

Just 19% of the Colorado River feeds the wetlands and riparian areas wildlife depend on.

Richter noted that cities in Utah and along Colorado's Front Range are at risk because they have very low priority for accessing water under the 1922 Colorado River Compact.

Despite calls for closing off spigots used exclusively for cattle feed, Richter said blaming any single user is counter-productive.

"Farmers and ranchers are growing the things that people want, and are willing to pay a necessary price for," said Richter. "So they are just responding to consumer demands."

He said he believes the new data could be an important tool for Colorado River stakeholders as they work to build a long term plan to bring the total use of water back in balance with what nature provides.

Richter said right now, water use is at least 10% to 15% over that limit.

"We need a long range plan that says how much water do we want to use in the cities? How much water do we want to use on the irrigated farms? How much are the industries going to need?" said Richter. "And until we do that long range plan, we are just going to be reacting to these water shortages on a year-by-year basis."




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