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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New data show lead levels in Syracuse's drinking water are higher than those in Flint, Michigan, and Newark, New Jersey.

The city's tests show lead levels are at 70 parts per billion with more than 14,000 homes containing lead pipes.

Erik D. Olson, senior strategic director for health at the Natural Resources Defense Council, noted along with corrosive lead pipes, other factors make it a precarious situation.

"When cities have not been doing the kind of upkeep that they need to do and pulling out these lead pipes when they come across them, or having an affirmative program to remove them, which some of the cities that are sort of looking forward have been doing for years, what we have is these situations where we are one mistake away from a public health crisis," Olson contended.

To remedy it, Olson feels the city must better inform residents, noting public officials downplaying the severity of this can lead to long-term health impacts. He believes Syracuse should provide residents with certified water filters to remove lead and premixed baby formula so families are not making it with lead-contaminated water.

Another way the city can reduce lead levels is by re-evaluating how it treats water so lead is caught quickly. If there are legal impediments or the city cannot access a home, Olson said Syracuse has to do what places like Newark did in the same situation.

"Adopt a local ordinance that said that any adult occupant of the home can give permission to replace the lead pipe," Olson urged.

He added the city must ensure the water utility picks up the tab since billing homeowners could be an environmental justice issue. Replacing every lead pipe in Syracuse could cost as much as $98 million but the federal Bipartisan Infrastructure Law allocates $15 billion for lead pipe replacement.

October is National Seafood Month and the fish on your plate might not be coming from where you think.

The U.S. imports 90% of the seafood it consumes. Offshore fish farming has come to dominate wild harvest in recent decades, with farmed salmon making up 80% of global salmon supply. Oregon does not have regulations to stop the practice.

Johnny Fishmonger, executive director of the group Wild Salmon Nation, said legislation proposed in Congress could make fish farming more prevalent in federal waters. He compared large-scale fish farming practices to dairy and poultry farms.

"It's like on land -- concentrated animal feedlot operations, CAFO -- so concentrated aquaculture feedlot operations where the fish are farmed intensely in high densities," Fishmonger explained.

Fishmonger noted sea lice infestations are common and devastating problems for fish farms. The AQUAA Act would allow aquaculture companies three miles offshore in federal waters. The SEAfood Act would create aquaculture assessment and grant programs. Supporters of large aquaculture operations said they are needed to feed the world's population.

Fishmonger stressed the aquaculture companies wanting to operate in federal waters are not mom-and-pop operations.

"One of the real distressing parts of that is there's no such thing as a small, family owned fish farm, except for like trout farms on land," Fishmonger contended. "Every farm in the ocean has been taken over by huge, multinational corporations."

Rob Seitz, a fishing boat captain, who opened South Bay Wild Fish House in Astoria, said there is other legislation to boost his line of work, the Domestic Seafood Production Act. The bill would require congressional approval for offshore aquaculture operations and invest in local fishing communities. Seitz argued fewer fish farms would be good for the environment.

"Wild catch fishing has the lowest carbon footprint of any form of food production," Seitz pointed out. "All of our fisheries in this country are sustainable pretty much now."


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By Bennet Goldstein for Wisconsin Watch.
Broadcast version by Mike Moen for Wisconsin News Connection reporting for Wisconsin Watch-Public News Service Collaboration

As environmental groups and policy analysts in the Mississippi River basin seek solutions to shrink a massive “dead zone” that forms off the coast of Louisiana each year, they have looked to a regional cleanup program in the Chesapeake Bay as a model.

A key component of that effort, known as the Chesapeake Bay Program, is regulation.

For nearly 15 years, it’s included a legally enforceable, multi-state pollution quota — one of a select few in the nation. This “total maximum daily load” aims to reduce the amount of nutrients, like phosphorus and nitrogen, that run off into the bay’s waters. 

In excessive quantities, chemicals derived from these elements, commonly used to grow crops and fertilize lawns, can cause algae blooms and die-offs that rob waters of oxygen and suffocate aquatic life.

But the bay program’s scientific advisers recently noted the strategy is imperfect. 

After two missed deadlines to reduce nutrient runoff, and a third looming, Mid-Atlantic state and federal officials are reevaluating their options.

A unique legal agreement

In 1983, the Maryland, Pennsylvania and Virginia governors along with the mayor of Washington and administrator of the U.S. Environmental Protection Agency signed the Chesapeake Bay Agreement, a pledge to reduce the pollutants and sediment entering the bay that contribute to the loss of organisms like seagrasses, shellfish and waterfowl.

The tapering of nitrogen and phosphorus remained the focus of subsequent agreements, but the jurisdictions did not meet their goals voluntarily, so in 2010 the EPA created the country’s most expansive pollution quota. It applied to six states — Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia — and the District of Columbia.

The quota’s creation and enforcement took political arm-twisting, including an act of Congress, a presidential executive order and multiple lawsuits. It requires nutrient plans from each jurisdiction and “reasonable assurances” each will take steps to control pollution from “nonpoint sources” like farm fields and parking lots. 

If states fail to meet their obligations by set deadlines, the EPA can implement stricter limits, force unregulated polluters to get permits and redirect or condition grant money.

Signatories believed they would achieve the program’s primary goal — improving habitat for the bay’s aquatic life — if they capped nitrogen and phosphorus entering the Chesapeake each year at 214.9 million and 13.3 million pounds, respectively, and sediment at 18,587 million pounds per year.

Instead, scientific modeling estimated that 258 million pounds of nitrogen and 15 million pounds of phosphorus entered the bay in 2021, a reduction from previous years thanks to upgrades to wastewater treatment plants and lower airborne emissions, but still off the mark. The program did hit its sediment target.

The bay program’s advisers say those declines represent achievements. Without the nitrogen and phosphorus reductions, things could be a lot worse as the region’s waters warm, urban population grows and agriculture expands. The bay’s 1-cubic-mile dead zone also might be even larger. 

Nonetheless, the sluggish progress remains an inconvenient truth. Officials have concluded they will not meet a 2025 deadline to stem the flow of nutrients after failing to achieve benchmarks set for 2000 and 2010.

“At the rate we’re going, it’s going to take about 150 years,” said Denice Wardrop, a bay program science adviser who directs the Chesapeake Research Consortium. “We better learn how to do it better.”

The program offers lessons for the Mississippi River basin too.

Something is better than nothing

Efforts in the Mississippi River, where environmental regulations are comparatively lax, to reduce annual injections of waterborne nutrients into the Gulf of Mexico largely have failed. This summer’s hypoxic zone is forecast to span 5,827 square miles, 5% larger than average. 

Scientists expect climate change to worsen conditions by warming the gulf’s waters, which would cause it to retain even less dissolved oxygen, and increasing rain, causing more runoff.

“The way that we operate right now is very much a state-by-state, choose-your-own-adventure model,” said Maisah Khan, former policy director at the Mississippi River Network.

Several groups say the federal government needs to lead and coordinate state restoration efforts, as it does in the Chesapeake Bay.

A Mississippi River-wide nutrient quota could streamline and prioritize runoff control projects and allocate federal dollars where they are needed most. Numerous academics and the National Research Council Water Science and Technology Board of the National Academies also embrace the concept.

“Without that,” said Alicia Vasto, water program director with the Iowa Environmental Council, “I think we’re kind of rudderless.”

So why doesn’t a Mississippi River quota already exist?

For one, the scale of the problem, said professor emeritus David Dzombak of Carnegie Mellon University, who chaired the National Academies committee that recommended policies to improve the river’s water quality.

Given the challenges that come with coordinating nutrient quotas in the 64,000-square-mile bay watershed, doing so across 1.2 million square miles in the Mississippi River basin — which comprises 41% of the continental United States — seems unimaginable.

Another factor: political will.

Basin states must cooperate with their neighbors to enforce a quota, but their interests vary significantly. Far upstream, a Louisiana shrimp trawler’s livelihood is all but haze in the distance. Meanwhile, few states are hungry for more federal oversight, and the EPA is likewise reluctant to brandish a stick.

The agency said it prefers helping states develop their own lists of impaired waters and cleanup plans, rather than doing so itself for an entire region all at once.

That’s exactly what environmental groups say isn’t working.

A better quota

Yet Chesapeake Bay scientists admit their regional nutrient quota isn’t a panacea.

“It’s a two-edged sword,” Wardrop said. “While it had some wonderful benefits in initiating action, of building an accountability system, it had some consequences where you got painted into a corner.”

Regulators fixated on tabulating the total pounds of sediment, nitrogen and phosphorus that drain into the bay’s deep channel (where the hypoxic zone forms each year), she said, instead of considering other ways to improve conditions for its plants and animals.

For instance, restoring wetlands and protecting shorelines could enhance shallow-water habitat for fish and mollusks, even if the bay program hasn’t completely reduced nutrient runoff.

“Yes, phosphorus and nitrogen are important, but it’s not a fix-all,” said Zach Taylor, freshwater mussel hatchery manager at the Maryland Department of Natural Resources. “There are still other considerations for improving the water quality, but I do think that it’s a good place to start.”

Because the bay’s shallows respond more quickly to falling nutrient levels, scientists say, the program should prioritize those regions for habitat improvement, which could help rally public enthusiasm. 

The same holds true for the Mississippi River basin. Improving water quality in upper basin states helps that region and the gulf, said Doug Myers, Maryland senior scientist with the Chesapeake Bay Foundation.

“You certainly don’t want your whole Mississippi River project tied to meeting dissolved oxygen criteria in the Gulf of Mexico,” he said. “It’s the people who live in those inland states that are gonna have to see the benefits for themselves and get excited about it for the benefit of their communities.”

The elephant in the room

As industry and sewage facilities cut their discharge, agricultural runoff now ranks as the largest remaining contributor to the bay’s water pollution — about half of all nitrogen and a quarter of phosphorus.

The situation is more pronounced in the Mississippi River basin, where an estimated 60% to 80% of the nitrogen entering the gulf originates at farms and livestock operations.

Bay scientists say a nutrient imbalance impedes improvement more than anything else. 

As farms multiply and expand, agricultural producers import more nutrient-rich fertilizer and animal feed. Hungry livestock convert feed into manure, which farmers apply to fields along with synthetic fertilizer. But crops don’t absorb all the nutrients. Excess nitrogen and phosphorus build up in soil, resulting in harmful runoff.

The source of the bay program’s authority, the Clean Water Act, can’t place pollution limits on field runoff. Instead, state and federal agencies offer grants and incentives to encourage producers to adopt better practices like planting cover crops or ceasing to till fields before planting.

But bay researchers say agencies promote these practices without considering their effectiveness or placement. 

The cheapest interventions, such as cover crops, offer farmers private benefits like improved soil health. But they are the least efficient at removing nutrients from the ground compared to other remedies like denitrifying bioreactors, structures that reduce nitrogen in field runoff. 

That leaves taxpayers with the fewest pounds of nutrients removed per public dollar spent.

The scientists say the program could stop tallying the number of nutrient-cutting practices installed on farms and instead incentivize success. For example, regulators could measure the nitrogen coming off fields and pay farmers when they fall under a set limit.

“We’ve maybe got to change our incentivizing systems for how we ask farmers to do things,” Wardrop said.


Bennet Goldstein wrote this article for Wisconsin Watch.


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