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.


get more stories like this via email

As a warming climate brings bigger and more frequent wildfires, burn scars left behind at high mountain altitudes are seeing snowpack melt much faster than non-burned areas, according to new research by Colorado State University.

Wyatt Reis, lead author of the study while a graduate student, said snowpacks act as massive water reservoirs during winter months. Until now, they have melted slowly in the spring sending water used for drinking, agriculture and other uses to millions in Colorado and across the West.

"Those snowpacks melting at a quicker rate puts more stress on the infrastructure that we have in place, that will need to be managed differently so that there is enough water for those downstream uses," Reis explained.

Rising temperatures have already changed the timing of when snow melts and the state's water managers are working to capture earlier flows. Reis pointed out the trend is likely to accelerate as more fires create conditions for even faster and variable melting. Researchers found snowpacks on south-facing slopes scorched by the Cameron Peak Fire reached their maximum level 22 days earlier than north facing slopes and the snow melted completely a full 11 days earlier.

Snowpacks in burned areas stay colder in winter, due to a lack of thermal energy normally produced by trees, but the energy balance flips during warmer months when there is no shade from the sun. Reis added earlier snow melts in burn areas are also making it more challenging for forests and other vegetation to recover.

"Currently there is nearly no canopy in these burned areas," Reis observed. "That canopy is going to take decades, if it ever regrows, just due to climate change and changing environments."

Wildfires are increasingly burning at high elevations where deep snowpacks accumulate and Reis expects it will present persistent challenges for water managers in Colorado and across the Mountain West.

"That's just going to continue to have major impacts on our water resources for decades to come," Reis projected. "The impact of that, as more fires are continuing, is going to be cumulative."

Running your kitchen faucet and suspecting the water is contaminated can be a scary thought.

A number of Wisconsinites are familiar with this, and there are calls to bolster a program that helps with well replacements.

Tom Van Loh and his wife live in a farming community in Marathon County. They do not farm, but their property is surrounded by cropland. Van Loh said over time, they had a buildup of nitrates in their well, with test results eventually showing excessive levels. County officials helped them apply for aid through the State Well Compensation Grant Program, which funded a reverse osmosis system. It was a lifesaver for the couple.

"We knew for years that we were drinking contaminated water," Van Loh noted. "It gave us a lot of peace of mind."

Van Loh pointed out they likely would not have been able to afford the roughly $12,000 cost and they no longer have to stock up on bottled water. Agencies and assistance groups report waiting lists for the grants, saying eligibility is pretty restrictive when nitrates are involved. Federal pandemic aid extended the program temporarily but the funds eventually ran out.

Chase Cummings, county conservationist for the Dunn County Environmental Services Department, said agencies like his are monitoring increases in nitrate contamination in certain areas. He agreed existing eligibility requirements for the well compensation program make it hard for people to clean up their drinking water, especially when you focus on farm runoff.

"Nitrate concentrations must exceed 40 parts per million," Cummings explained. "The health standard is 10 parts per million. So, you'd have to have a very high nitrate concentration in your private well. And if you were to use the current well comp program eligibility, we would have one individual eligible."

It puts many other property owners in a bind because they do not qualify. Beyond fostering more conversations about expanding access to grants, Cummings stressed county governments are being more intentional about careful land use, including working with farmers to adopt conservation practices so lower levels of nitrates find their way to surrounding water sources.


get more stories like this via email

Some Latinos in Arkansas were among 400 residents across 10 states polled about the health of the Mississippi River.

Both registered Republicans and Democrats were polled and all participants live close to the river.

Dave Metz, president of the polling firm Fairbank, Maslin, Maullin, Metz and Associates, said overall Latinos are concerned about pollution in the Mississippi, with 83% of them describing it as a national treasure and more than 50% of those polled said they feel it is threatened and it is their responsibility to care for it.

"We also see among Latino voters -- regularly -- stronger support for conservation proposals," Metz reported. "Stronger support for policy proposals designed to promote public health by reducing pollution."

The Mississippi River passes through all the states where the study was conducted. Among those surveyed, 74% said they are very or extremely concerned with the presence of pollution in all the country's rivers, lakes and streams.

The survey also found Latinos feel Congress should do more to protect and clean up the Mississippi River, ensuring the protection of water, air and wildlife, instead of producing more domestic energy through oil and gas drilling or mining.

Metz said 87% of those surveyed support the 30-by-30 goal of conserving 30% of America's lands, freshwater and oceans by 2030.

"Latinos express higher degrees of concern about air and water pollution -- and pollution on land as well -- than what we see among the rest of the population," Metz pointed out. "One reason for this obviously are environmental justice concerns. Many Latinos within the United States live in communities that are disproportionally burdened by sources of pollution."

Those polled said they would back legislation to provide funding to prevent the worst impacts of flooding, incentives for farmers to use sustainable practices and improve soil health and potential policies to create new national parks, monuments or wildlife refuges to protect areas for outdoor recreation.


get more stories like this via email