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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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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Colorado lawmakers are considering legislation to restore protections to key waters and wetlands struck down by the U.S. Supreme Court last year in a decision leaving more than half of the nation's water supply at risk of industrial pollution.

Margaret Kran-Annexstein, director of the Colorado chapter of the Sierra Club, said House Bill 1379 is in sync with Colorado voters, pointing to a recent survey which found nearly nine in 10 voters want to limit damage and pollution from development, industry and mining on wetlands and streams.

"Recent polling has found that massive majorities of Coloradans, whether they are Democrat, Republican or Independent, really support common sense water protections that would happen under this bill," Kran-Annexstein reported. "I think we can all agree that clean water is a necessity."

A coalition of conservation groups support the measure to create a permitting program for responsible development through the Colorado Department of Health and Environment.

Last month, Sen. Barb Kirkmeyer, R-Brighton, introduced an alternative proposal supported by the homebuilding industry, which would require a new division and staffing in the Department of Natural Resources.

Kran-Annexstein stressed clean, reliable water resources drive the economy and are vital for the health of communities. She believes the high court's ruling, claiming some waterways do not have significant connections to watersheds, was a win for corporate polluters who want to avoid permitting.

"In Colorado we know that there are a lot of streams and rivers and wetlands that run dry for certain parts of the year," Kran-Annexstein pointed out. "This ruling said that those waterways don't deserve protections and they don't count, just because they are seasonal."

Mountain states like Colorado are the source of drinking water for some 40 million Americans living in downslope states and Kran-Annexstein said the House bill is an opportunity to pass important and necessary protections after last year's Supreme Court decision.

"This decision left half of the waters across the United States unprotected by the Clean Water Act," Kran-Annexstein emphasized. "And really left it to states to make their own laws to protect state waters. And now it is the responsibility of states to step up and close that gap."

Today is World Water Day, a global observance to raise awareness about the importance of access to clean, fresh and safe water.

This year, advocates in the U.S. are urging Congress to restore protections under the Clean Water Act for smaller streams and wetlands, which were overturned in a U.S. Supreme Court ruling last year.

Jim Murphy, senior director of legal advocacy for the National Wildlife Federation, said rivers and streams in Mississippi used for swimming and fishing flow into larger bodies of water, so it is essential for the waterways to be safeguarded.

"It's really important for people to ensure that, with the rollbacks from the Supreme Court, that they're ensuring that their state and local leaders are doing what they can to protect the waters that people rely on," Murphy asserted.

A bill in Congress, the Clean Water Act of 2023, would reinstate the rule the Supreme Court struck down, and broaden the definition of which streams and waterways are subject to federal protection. It has more than 120 co-sponsors, but remains stalled in the U.S. House.

Murphy pointed to a poll, which found more than 90% of Americans think protecting the safety of drinking water, and the water in lakes, streams and rivers should be a priority. He added the most effective and cost-efficient approach to safeguarding water is to protect it before it gets to your home faucet.

"Protecting water at its source is the most important and one of the cheapest things we can do to ensure that people who are facing a crisis of dirty water are protected," Murphy explained. "In other cases, we also have to invest in the right type of infrastructure, to make sure that water is clean."

A boil water alert was issued for Jackson this week, as the result of repair work performed on the water system. In 2022, Jackson's water system crisis affected more than 150,000 residents, who were without clean or running water for weeks at a time.