WaterWired

CRS Legal Sidebar: What’s Next for WOTUS - Recent Litigation and Next Steps in Redefining “Waters of the United States”

From Kate R. Bowers - the latest (7 October 2021) CRS report on you-know-what: What’s Next for WOTUS - Recent Litigation and Next Steps in Redefining “Waters of the United States”. This Legal Sidebar (LSB) present s distictly legal perspective and has embedded links that may not be present it the dowloaded version, so you maye to wish to read it by clicking on the title ablve

I like to think we will get WOTUS figured out in my lifetime (NOT!).

Download CRS_LSB_Next_Steps_WOTUS_7Oct2021

Introduction
On September 3, 2021, the Army Corps of Engineers (Corps) and the
Environmental Protection Agency (EPA) announced that they halted implementation of the Navigable Waters Protection Rule, which defined “waters of the United States” (WOTUS) for purposes of establishing the scope of Clean Water Act (CWA) jurisdiction. The announcement followed a federal district court decision on August 30 in Pasqua Yaqui Tribe v. EPA, in which the court remanded and vacated the rule. Although the agencies had requested that the court allow implementation of the rule while they developed a new definition of WOTUS through the rulemaking process, the court instead agreed with parties challenging the rule who argued that it should be vacated immediately. The court’s vacatur of the Trump-era Navigable Waters Protection Rule requires the Corps and EPA revert to an older regulatory definition while the Biden Administration undertakes its rulemaking process to redefine WOTUS. 

This Sidebar discusses recent developments in the litigation surrounding the Corps and EPA’s efforts to define WOTUS. A companion CRS Report provides more in-depth discussion of the actions taken by the Obama, Trump, and Biden Administrations to define WOTUS, along with related legislation and case law. 

Overview of Agency Efforts to Define WOTUS
The CWA prohibits discharging certain pollutants into “the waters of the United States, including the territorial seas” without a permit. The statute does not define “waters of the United States,” however. Congress, the courts, stakeholders, and the Corps and EPA—the two agencies responsible for administering the CWA—have long debated how to interpret the term, and thus the scope of waters that are federally regulated. 

Prior to 2015, regulations promulgated by the Corps in 1986 and EPA in 1988 were in effect. The Corps and EPA also issued guidance in 2003 and 2008 to clarify the scope of CWA. Several Supreme Court decisions, most notably Rapanos v. United States in 2006, prompted the agencies to consider changes that would clarify the scope of WOTUS.” In 2015, the Corps and EPA issued the Clean Water Rule, which redefined WOTUS in the agencies’ regulations for the first time since the 1980s. Under both the 2015 Clean Water Rule and the pre-2015 regulatory framework, the agencies’ jurisdictional analysis sorted waters into three categories: (1) waters and wetlands that are categorically WOTUS; (2) waters and wetlands that may be deemed WOTUS on a case-by-case basis upon a finding of a “significant nexus” with traditionally navigable waters; and (3) waters and wetlands that are categorically excluded from WOTUS. Among other things, the 2015 Clean Water Rule also defined the regulatory term “tributaries” for the first time, and established numerical distance-based criteria for determining when waters and wetlands were jurisdictional by virtue of their adjacency to certain regulated waters. 

The 2015 Clean Water Rule was quickly mired in litigation. At the time President Trump took office in 2017, the rule had been stayed by the U.S. Court of Appeals for the Sixth Circuit. After the Supreme Court held that the Sixth Circuit did not have jurisdiction to enter that order because challenges to the rule must be litigated in federal district courts, the Sixth Circuit lifted its stay and the rule became effective in states that were not subject to one of several preliminary injunctions issued at the district court level. By that point, however, the Trump Administration had already begun its efforts to repeal the 2015 Clean Water Rule and replace it with a new definition of WOTUS. 

On February 28, 2017, President Trump issued an executive order (E.O. 13778) directing the Corps and EPA to review and rescind or revise the 2015 Clean Water Rule. The agencies then embarked on a two-step regulatory process. First, the agencies repealed the 2015 Clean Water Rule and recodified the pre- 2015 regulatory text. Then, on April 21, 2020, the agencies issued the Navigable Waters Protection Rule. Overall, the Navigable Waters Protection Rule narrowed the definition of WOTUS, and thus the scope of waters and wetlands under federal jurisdiction. Among other changes, the rule (1) eliminated the category of waters whose jurisdictional status would be determined on a case-by-case basis, and the classification of all waters as either categorically included or categorically excluded; (2) excluded ephemeral features (i.e., those that flow or pool only in direct response to precipitation), including ephemeral tributaries, and features that did not provide surface water flow in a “typical year” to jurisdictional waters; (3) more narrowly defined “tributaries” and “adjacent wetlands,” both of which continued to be considered jurisdictional; and (4) removed interstate waters as a separate category of jurisdictional waters. 

Enjoy!

"When the student is ready the teacher will appear." - Buddhist/Tao Te Ching/Zen proverb

Jesse J. Richardson Opines on Mississippi v. Tennessee. Nearing the End for Mississippi?

Jesse J. Richardson, one of the smartest water lawyers I know, has written a number
of times about groundwater, especially the seminal Mississippi v. Tennessee case, which the Supreme Court heard on 4 October 2021. His most recent MS v. TN WaterWired article was on the Special Master's decision in November 2020, which did not support Mississippi's position. 

I just received this article from him. I inserted the graphics.

                                       Mississippi v. Tennessee
                                           Jesse J. Richardson
                            West Virginia University College of Law
                                           

On Monday, October 4 the United States Supreme Court heard oral arguments in the Mississippi v. Tennessee. Both states have filed exceptions to the latest recommendations of Special Master. Mississippi filed suit arguing, essentially, that Memphis, Tennessee has stolen the groundwater from beneath Mississippi by placing several high volume water wells near the state line.

The litigation began in 2005, when Mississippi filed suit against the Memphis public water supplier in federal court. The district court and court of appeals both found that Mississippi needed to file suit against Tennessee and request that the United States Supreme Court divide the groundwater between the states (“equitable apportionment”). The United States, without comment, refused to hear the appeal and denied Mississippi’s motion to file a bill of complaint, in 2010.

In 2014, Mississippi again filed a motion for leave to file a bill of complaint. This time, the United States Supreme Court granted the motion. The Special Master, in the latest report, recommended that the Court dismiss the present action and grant leave to Mississippi to file an amended complaint asking the Court to equitably apportion the water. Mississippi objected to the recommendation to dismiss and Tennessee objected to the recommendation to allow Mississippi to amend to request equitable apportionment.

The arguments and questions from the justices spanned a wide range of topics, making it difficult to pinpoint one or two main points. Although most press reports have indicated that the justices expressed skepticism towards the claims by Mississippi, which they did, the reports leave out the pointed questions aimed at Tennessee as well.

Starting with the second question, some justices expressed frustration with Mississippi’s insistence on not pursuing an equitable apportionment claim, with one justice exclaiming that this started in 2005, “[w]hen is enough, enough”? Others, however, seemed to believe that Mississippi should be given that chance if this case is dismissed. Most seemed to wonder why the Court had to say anything at all- can’t Mississippi file leave to amend if and when they wish? I believe the Court will, out of fairness, allow Mississippi to amend if the Court rules against them.

As to whether Mississippi’s claim will survive this round, most justices expressed skepticism. My thought prior to this argument was that Mississippi has a steep hill to climb. I believe that the hill is still steep. However, during the latter part of the argument, some questions were asked about how groundwater is different than surface water and whether that means that equitable apportionment should not apply. Note that the Court has never considered a case involving apportionment of groundwater so this is the first time the Court would rule on that issue.

Other questions seemed to indicate that some justices think that equitable apportionment should apply, but may be different with respect to groundwater. The Chief Justice joked about his lack of knowledge of groundwater but the joke reinforced statements in other oral arguments that the justices are not comfortable with the technical issues involved in water cases. The Court is in a very different role in these types of cases than the usual appeal to the Court.

Some questions revealed a concern about what the ruling here would mean for the Court’s workload. If the Court rules in favor of Mississippi would a flood of litigation result? Or would allowing equitable apportionment of groundwater mean more states filing suit over interstate aquifers?

I was left with more uncertainty than prior to the oral arguments, but I will stick to my pre-argument prediction and say that the Court is likely to dismiss the present action by Mississippi and allow the state to amend the complaint to ask for equitable apportionment. If my prediction is correct, the arguments start all over again about how equitable apportionment should apply to groundwater, if at all. The level of complexity and uncertainty remain very high, but any result will impact groundwater management in profound ways.

On a personal note, Justice Sotomayor referred to an amicus brief that I co-authored with several other law professors during her questioning of Tennessee’s attorney. To have the United States Supreme Court explicitly recognize your work is quite humbling and I am very grateful for the chance to provide input at this highest level of legal debate.

Water Systems Council will continue to monitor this case and keep you advised of the latest developments. We expect a ruling in early 2022.

Great job, Jesse!

Enjoy!

"The history of [groundwater law] is as thrilling as ignorance, inertia, and timidity could have made it." — Mark N. Goodman

Joint AWWA, AMWA and NACWA Letter to EPA: 'Comments on TSCA Reporting and Recordkeeping Requirements for PFAS'

Thanks to G. Tracy Mehan III, executive director for government affairs at the American Water Works Association, for sending me this letter AWWA, AMWA and NACWA jointly sent to Ms. Stephanie Griffin of EPA. The topic:

Joint AWWA, AMWA and NACWA Comments on Toxic Substances Control Act Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (Docket ID: EPA-HQ-OPPT-2020-0549)

The cover letter is pasted below (click on the pages to improve readability), and here is the PDF of the letter:

Download Joint AWWA AMWA and NACWA Comments to EPA for TSCA Reporting and Recordkeeping PFAS Proposal

Enjoy!

"As bad a dresser as I am, anything beats being judged by my character." - David Sedaris

From EPA: 'Assistance That Saves: How WaterSense Partners Incorporate Water Efficiency Into Affordability Programs'

G. Tracy Mehan III, the executive director for government affairs at the American Water Works Association sent me a copy of this EPA WaterSense publication.

I will provide the introduction and the lessons learned and a PDF of the entire publication.

Download Ws-assistance-that-saves-efficiency-and-affordability

Introduction
Water costs have been increasing steadily in the United States for more than a decade. Even so, the cost of water remains relatively inexpensive for most Americans compared to energy. However, for households considered low-income, paying for water can pose a financial burden. According to the U.S Census Bureau, the overall five-year poverty rate from 2015 to 2019 was 13.4 percent; but in some U.S. counties, the poverty rate exceeded 30 percent. For people living at or close to the poverty level, and others such as seniors on a fixed income, water affordability is critical.

For many years, water utilities have worked to ensure this essential resource is available to all customers in their service areas with a variety of customer assistance programs (CAPs). The U.S. Environmental Protection Agency (EPA) compiled a compendium of such programs in 2016, noting that 30 percent of large utilities reviewed offered some type of CAP, and closer to 20 percent of medium-sized utilities also offer CAPs. When the COVID-19 pandemic led to an increase in unemployment in 2020, even more utilities became focused on providing affordability and bill payment assistance. Now, they are looking for ways to reach underserved populations with water efficiency assistance as well.

CAPs can take many forms, from bill discounts and flexible payment terms to subsidies and temporary assistance to avoid water shutoff. More and more, utilities are finding that a focus on water efficiency can enhance their CAP programs, not only making water more affordable for those that need it, but bringing leak repairs and water-efficient products to homes that are not able to pay the upfront costs. By reducing unnecessary water use, these programs are helping to reduce the financial burden on families that might have to choose between paying their water bill and some other necessity.

To get a sense of how utilities are helping customers save both water and money with proactive plumbing repair and other programs, EPA contacted a number of interested WaterSense® partners to participate in aseries of roundtables and interviews on the topic of affordability and water efficiency in early 2021. More than a dozen utilities provided input, ideas, lessons learned, and case studies about how they incorporate water conservation programs into their CAPs, from leak detection in low-income homes to direct installs of WaterSense labeled products. Many of the programs described in this document focus on single-family homeowners, but utilities are also working to make multifamily homes more efficient, since many renters don’t receive a water bill directly but are responsible for water costs.

One of the most important aspects that emerged from utilities that marry their affordability support programs and efficiency is how important partnering with related organizations is to the success of their programs. Community organizations that focus on low-income assistance, seniors, energy efficiency, and underserved populations have proven invaluable to customer communications, recruitment, and trust-building. Many program partners administer aspects of water efficiency CAPs, from qualifying potential customers to conducting in-home visits and plumbing services. WaterSense partners provided a variety of ideas and advice for finding and working with partners.

As more utilities look to address water affordability and efficiency, it may also be time to re-evaluate existing conservation efforts for their equity and accessibility. While rebates encourage many residents to replaceold toilets and other fixtures, saving water and energy costs, they tend to favor customers with the disposable income to procure products, hire contractors, and handle the paperwork. During the roundtables, WaterSense partners discussed the potential for discrimination in some of their conservation efforts. Some are now undertaking initiatives to make water efficiency more equitable across their customer base, by conducting outreach and focusing affordability efforts on previously underserved populations. With these efforts and an increased focus on CAPs that help conserve water, more Americans will be able to access—and save—this essential resource.

Acknowledgements
WaterSense would like to thank the following partners who provided insight and input to this document. Additional resources such as sample forms and agreements provided by organizations for WaterSense partners are available on the WaterSense partner website.

Albuquerque-Bernalillo County Water Utility Authority (New Mexico)
California Water Service
City of Charlottesville (Virginia)
City of Dallas
City of Fort Worth (Texas)
City of Guelph (Ontario)
City of Richardson (Texas)
City of Sacramento (California)
City of Westminster (Colorado)
East Bay Municipal Utility District (California)
Madison (Wisconsin) Water Utility
Metropolitan Water District of Southern California
Miami-Dade (Florida) Water and Sewer Department
Michigan Department of Environment, Great Lakes, and Energy (EGLE)
Orange Water and Sewer Authority (North Carolina)
Portland (Oregon) Water Bureau
San Antonio Water System (Texas)
Seattle Public Utilities
Tacoma Public Utilities (Washington)

Very good case studies section.

Skipping to Lesson Learned:

Lessons Learned
With the wide variety of customer assistance programs that incorporate water conservation of late, there have been many opportunities to learn from utilities that prioritize both efficiency and affordability. Following are some of the lessons learned by successful—and challenging—efforts:

Prioritizing partnerships increases efficiency. Partners have been critical to the qualification, credibility, and communications of successful conservation-oriented customer assistance programs. Grassroots organizations that customers trust pave the way for utilities to promote their affordable conservation programs within the community, reducing the effort needed for recruitment, qualification of applicants, and promotion of your program.

Energy programs have weathered this before. Some of the best partners might be other utilities, agencies, and organizations that make energy improvements such as weatherization for low-income constituents. They are often funded by state or federal funds, and many include water-efficient showerheads and faucet aerators in their offerings. Your efforts could be well informed by their experience, and many are willing to to handle purchasing the hardware and installing plumbing fixtures.

Lose the legwork, piggyback instead. You don’t need to hold your own recruitment campaigns, educational events, or product distributions; partners can carry the water when it comes to public outreach. Housing assistance fairs, food banks, and nonprofit charity events may give you the opportunity for a tabletop display to distribute information and free faucet aerators or showerheads. WaterSense campaigns, such as Fix a Leak Week, can be used to launch leak repair projects or programs in low-income areas; WaterSense educational materials and outreach templates available to partners can reduce your communications and promotional costs.

Don’t assume items will get installed. Just because you distribute free fixtures, don’t assume they will get installed. One partner found Flume devices they provided to customers didn’t get connected; another makes a point of checking Facebook marketplace after distribution events to ensure their fixtures aren’t getting sold online. Before offering free plumbing fixtures, consider and remove the potential barriers customers may face before they can use the products. That’s why many utilities depend on direct installs to get the job done.

Line up leak repair professionals. Before launching a plumbing repair or direct install program for qualified customers, make sure you have contractor support to manage the flow of applicants. Don’t assume contractors will be easily accessible when you launch your program; line up enough licensed plumbers ahead of time, and keep a directory of providers available. Some partners have found that one plumbing company with a service area that matches theirs keeps quality and communications consistent; others found having multiple plumbers with municipal contracts meant they were available when their leak repair needed to ramp up. You may need to provide incentives for them to participate, or an easy way for them to purchase qualified products and conduct installations, then get the rebate directly from you.

Consider customer service. For utilities undertaking their own direct install programs, make sure you have dedicated customer service representatives available to answer questions from participants. And don’t be surprised if those questions keep coming long after customers receive their toilets. Some WaterSense partners found that direct install customers will attempt to contact the utility when the toilet needs repair or replacement, even long after the product warranty has expired.

Speak their language. Being able to communicate with your area’s diverse population is instrumental in reaching customers who may need assistance. Make sure your promotional materials, forms, and websites are translated into the language your customers speak, as well as culturally appropriate for the communities you want to reach. Partners whom your target audience trusts are also the best source of information and influence. Get partner input on your programs’ plans, processes, and promotions to ensure they are understandable by and resonate with customers.

Work with WaterSense partners where possible. Some WaterSense utility partners have found plumbing manufacturers in the program who are willing to provide products for charity builds, home makeovers, and direct installs. As part of their sustainability goals, many companies wish to align themselves with organizations that encourage financial resiliency and conservation. If your affordability effort involves outdoor efficiency, make sure to contract with irrigation professionals who have been certified by a WaterSense labeled program.

Many of these lessons are apparent in the plumbing repair, direct install, and other CAP projects that WaterSense partners have undertaken in recent years. The case studies on the following pages describe the programs, qualifications, partners, and processes that allowed partners to promote both affordability and efficiency successfully—as well as what they learned to do differently.

Helpful publication.

Enjoy!

"Can other people tell what courses you are teaching by the way you use different examples or metaphors in everyday conversations? Or is it just me?" - @IronyPhD

AWWA Letter to Radhika Fox: Comment on EPA's Drinking Water Contaminant Candidate List 5-Draft

Thanks to G. Tracy Mehan III, executive director for government affairs at the American Water Works Association, for sending me this letter he sent to Ms. Radhika Fox, EPA Assistant Administrator, Office of Water. The topic:

Comments on EPA Drinking Water Contaminant Candidate List 5-Draft Docket ID: EPA-HQ-OW-2018-0594

The cover letter is pasted below, and here is the PDF, which contains 11 pages of comments:

Download AWWA Comments on EPA Drinking Water Contaminant Candidate List 5 Draft

The cover letter:

From the comments here is the conclusion:

Enjoy!

"Education is a progressive discovery of our own ignorance." - Will Durant