Upcoming Supreme Court case will test limits on EPA, Delaware lawmakers to act on water

A brief filed by lawmakers looks to bolster support for the Clean Water Act ahead of a Supreme Court ruling that could strip key provisions in its application in the future.

Sen. Tom Carper, chairman of the Senate Committee on Environment and Public Works, and Rep. Lisa Blunt Rochester, both D-DE, submitted an amicus brief alongside 165 current and former members of Congress to the court, in the case of Sackett v. U.S. Environmental Protection Agency. The case is scheduled for fall.

“Huge progress has been made in protecting this nation’s waters but polluting and filling still threaten to destroy wetlands and other waters that provide valuable services to fisheries, wildlife, recreation, health and drinking water,” according to the brief. "The resolution of this matter could have a profound impact on whether this progress is sustained. This brief highlights the express choices Congress made in the Act regarding what waters are protected, the roles Congress assigned and the Act’s explicit criteria."

The case in question, which originated in Idaho, challenged the agency's compliance orders when applied to private property. Similar situations have been seen on the Eastern Shore when it comes to wetland conservation.

In a unanimous opinion written by Justice Antonin Scalia and issued March 21, 2012, the court held that the agency's compliance orders may be challenged in a civil action brought under the Administrative Procedure Act. In October, the court will begin its new term with this challenge from conservative property owners seeking "to strip essential protections" from the legislation the committee argued.

"The Act’s pervasive antipollution mandates aim to fulfill three specified 'integrity' goals: 'to restore and maintainthe chemical, physical and biological integrity of the Nation’s waters.' Other provisions set forth criteria regulators must assess and that govern decision-making under the Act," according to the brief.

The brief also stipulates the legislation is designed for the agency and the Army Corps of Engineers to use science-based data to make decisions effecting a region's water.

Delaware water quality

Delaware is no stranger to water quality issues, with drinking water sources the subject of contamination.

In February, a U.S. Geological Survey report took aim at untreated well water in Delaware when it found widely distributed per-and polyfluorinated alkyl substances, or PFAS, contamination statewide.

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The USGS report released in December 2021 found a variety of types of PFAS in water from 16 of the 30 wells sampled in Delaware; one sample contained eight different types. Those that contained PFAS generally had low concentrations, meaning only ongoing monitoring was required.

According to USGS data, all wells sampled receive groundwater from the Columbia aquifer, which supplies water for more than 90% of the state.

A month earlier, issues of accessibility to clean municipal water were the focus of hearings.

Vikki Prettyman, Delaware and Maryland state manager for the Southeast Rural Community Assistance Project, knows all too well the challenges in providing clean water to families.

"Currently, the New Hope community's water is in such poor condition with high iron and other contaminants that they cannot drink or use the water," Prettyman said last month. "We were able to secure a grant that is paying for delivery of 5-gallon bottles of water to certain residents. They do have a county water system in the process of construction, so they'll be able to connect to that at some point."

That system is now online, allowing safe water consumption to those connected to it.

In March, the Environmental Integrity Project claimed 97% of Delaware rivers and streams are too polluted for both water recreation and aquatic life.

The Clean Water Act at 50 report, released March 17, lists Delaware among the worst in the nation in terms of miles polluted by illegal runoff of fertilizer, other contaminants and algae blooms dangerous to both humans and fish.

"As a legal term under the Clean Water Act, 'impaired' means a waterway has too much pollution for a public purpose," said Tom Pelton, Environmental Integrity Project director of communications. "That includes swimming, fishing or as a drinking water source. That can also include contamination by fecal bacteria, nitrates and algae blooms that cause dead zones."

Nationally, the 2021 water quality report is comprised from tests conducted by almost 50,000 local water utilities across the United States with the compendium of results included in the full report.

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"A total of 56 new chemicals found in this year's data fall in one of two categories: new PFAS and chemicals from the EPA’s UCMR-4 round of testing, which included new chemicals, like pesticides and radioactive material that water systems had to test for," Environmental Working Group said in a statement.

The presence of trace amounts of some chemicals in samples also does not necessarily imply there is cause for concern.

Another EPA case give glimpse into Supreme Court leaning

The federal agency was also the target of another ruling by the high court, this one pertaining to enforcement of clean air standards

By a 6-3 vote, with conservatives in the majority, the court said Thursday that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants that contribute to global warming.

Instead, the ruling noted the agency is limited to plant-by-plant regulation.

That flies in the face of the current administration's goal to cut the nation's greenhouse gas emissions in half by the end of the decade and to have an emissions-free power sector by 2035. Power plants account for roughly 30% of carbon dioxide output.

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"The Supreme Court’s misguided decision particularly threatens the health and livelihood of low-income people of color who are bearing the brunt of climate change and are often exposed to higher levels of air pollution, toxic hazards and other contaminants," said the Maryland League of Conservation Voters.

The Chesapeake Bay Foundation echoed those sentiments when it described Thursday's decision as a threat to the quality of life of the 18 million people "who live, work, and play" in the Chesapeake Bay watershed.

"Reducing emissions from coal-fired power plants is essential to restoring the bay and its rivers and streams. Measures that curb greenhouse gasses from power plants also reduce nitrogen pollution. Approximately one-third of the nitrogen pollution damaging the bay comes from the air," said Denise Stranko, Chesapeake Bay Foundation Federal Executive.

According to the foundation, bay jurisdictions have developed and are implementing a science-based plan to restore the bay called the Chesapeake Clean Water Blueprint.

Legal experts have surmised this ruling signals to federal agencies they will no longer be able to issue industry-wide regulations sans congressional authorization. By narrowing the scope of the federal agency, much of the Biden administration's attempts to cut carbon dioxide levels nationally may be in jeopardy.

"While this decision narrows the federal government’s authority under the Clean Air Act, it leaves room for EPA to act on its duty to tackle carbon emissions from power plants," the foundation said in statement.

This article originally appeared on Salisbury Daily Times: Upcoming Supreme Court case will test limits on clean water actions