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BREAKING: The Supreme Court Sides With Clean Water

Analies Dyjak @ Friday, April 24, 2020 at 3:51 pm -0400

Analies Dyjak, M.A. | Policy Nerd   

In a 6-3 landmark decision, the Supreme Court has sided in favor of clean water. County of Maui, Hawaii v. Hawaii Wildlife Fund tested a decades-old precedent relating to water pollution. The case calls into question whether or not indirect discharge of wastewater into a navigable water requires a permit from EPA. 

Background: County of Maui, Hawaii v. Hawaii Wildlife Fund 

In the late 1970’s and early 1980’s, the County of Maui built four injection wells to store treated wastewater. The use of injection wells was, at the time, the best option for dealing with treated sewage. The County was trying to prevent treated sewage from directly ending up in the Pacific Ocean. In 2013, the U.S. Environmental Protection Agency, alongside Hawaii state agencies, decided to study the environmental impact of the County's injection wells on Maui’s shoreline. A “tracer dye test” ultimately determined a hydrologic connection between the treated sewage from the injection wells and coastal Maui waters. Even though the County didn't directly discharge sewage into the Pacific Ocean, it was still ending up there via the injection wells. The county argued that because groundwater has historically been considered "non-point" (meaning no permit required) that it does not fall under the jurisdiction of the Clean Water Act. Because of this, the county believed that it was not liable under the Clean Water Act to obtain the proper permits required for point source pollution. The case made it's way through the Courts to the Ninth Circuit, who sided with the Hawaii Wildlife Fund. The County of Maui filed a petition for writ of certiorari and the case was heard by the Supreme Court.

How Did The Supreme Court Side?

On April 23, 2020, the Supreme Court sided in favor of Hawaii Wildlife Fund, and ultimately in favor of water. “We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” This quote from the opinion of Justice Stephen Breyer challenges the underpinnings of the Clean Water Act. It’s interpretation, however, is seemingly, and purposefully, broad. It’s obvious that the Supreme Court continues to grant primacy to EPA and Congress.

How Will This Change Precedent?

The decision of the Court challenges existing Clean Water Act (CWA) provisions. According to the CWA, a permit is not required for non-point source pollution into groundwater. The Court determined that discharge from an injection well is in fact considered “point source pollution,” which does require a permit. Does the term “functionally equivalent” apply to non-point source pollution other than wastewater? Does this apply to all other groundwater conduits? These are questions we hope to have answers to in the upcoming weeks. 

How Will This Impact Drinking Water?

The question of whether or not groundwater conduits should be regulated equivalently to point-source conveyances opens up a whole can of worms. As the Clean Water Act currently stands, groundwater, including private wells, is not regulated. This means that private well owners are entirely on their own for determining the safety of their drinking water. Justice Breyer could be calling for a broader range of regulated "groundwater" - resulting in less polluted aquifers for private wells. Alternatively, surface water quality across the country has the potential to drastically improve. In theory, more types of non-point source pollution could require permits/oversight, therefore resulting in cleaner water. Many lakes and rivers act as the primary drinking water source for major cities. For example: Chicago gets its water solely from Lake Michigan, Washington, D.C. draws water from the Potomac River, and Columbus, Ohio utilizes the Scioto River. All of these water sources are susceptible to pollution from various sources, including, but not limited to, wastewater injection wells. 

If you have questions about this case and how it might impact your drinking water, feel free to send us an email at hello@hydroviv.com.

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Stagnant Water Due To COVID-19 Will Increase Lead Levels in Schools and Childcare Facilities

Analies Dyjak @ Monday, April 20, 2020 at 5:05 pm -0400

Analies Dyjak, M.A. | Policy Nerd   

COVID-19 will have long-lasting impacts that we can’t even begin to quantify. One important challenge that has the potential to be overlooked in the enormity of the crisis is that water quality, specifically in schools and childcare facilities, could change when stay-at-home orders are lifted. Purdue University is currently researching the magnitude of just how bad this problem could be. Here is how lead in water could impact schools in your area. 

Is Lead Harmful to Children?

Exposure to any amount of lead can cause serious health impacts, particularly in young children. According to the American Academy of Pediatrics (AAP), exposure to low levels of lead can cause permanent cognitive, academic, and behavioral difficulties in children. There is a serious disconnect between the legal limit and the levels deemed appropriate by major health organizations. Lead is a neurotoxin, and children should not consume any amount, especially at school.

Why Does Stagnant Water Increase Lead Levels?

Lead accumulates in water when it leaches from lead-containing pipes, plumbing, and fixtures. The periods of inertia in plumbing during weekends and summer vacation allow water to sit stagnant for extended periods of time. The longer water sits stagnant in pipes in the distribution system, the more lead can accumulate. This is the major difference between lead accumulation in homes vs. schools and childcare facilities. Some school districts make sure to flush pipes in August before the start of the school year. Unfortunately, some schools don’t have the funds to ensure proper flushing. In an average household, water flows on a daily basis and doesn’t sit stagnant for more than 12 hours at a time. We don’t know how long schools will be closed, which could result in water sitting stagnant for longer than the average summer break. 

Why Are Schools and Childcare Facilities Most Susceptible To Lead Contamination?

Schools in the United States are old, and many were built with lead-containing pipes, plumbing, and fixtures. According to data from the Department of Education, the average age of a public school in the United States is 44 years old. Additionally, children are particularly vulnerable to the negative effects of lead exposure. The current federal Action Level for lead in drinking water is 15 parts per billion. Unfortunately, schools are not required to follow this already weak standard for municipal water. The EPA suggests schools maintain lead levels under 20 parts per billion. This is shocking, considering that public health organizations agree that there is no safe level of lead for children.

Why Many Schools Don’t Test for Lead:

There is no Federal law that requires schools to test for lead. Some states have created laws that mandate schools to test; however, a 2018 report by the Government Accountability Office (GAO), found that only 15 states actually require schools to test for lead. As of 2018, 43% of public schools tested for lead in drinking water. 

Our Take:

There’s no guarantee that the water coming out of school fountains is free of lead. As a parent or member of the community, there are a few things you can do to ensure that children are not being exposed to lead. Once schools open their doors again, you can contact your superintendent’s office to make them aware of this issue. A common mitigation technique is to allow water lines to run for an extended period of time. Parents can also speak with principals to make sure that custodians and maintenance staff flush water lines before kids go back to school. When in doubt, have your children fill up a water bottle from home with filtered water and bring to school!

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American's Can't Afford Their Water Bills

Analies Dyjak @ Thursday, April 16, 2020 at 3:45 pm -0400

Analies Dyjak | Policy Nerd   

Our Water Nerds are following a largely under-reported story that’s crippling communities throughout the United States, particularly in Detroit, Michigan. Amid a pandemic, Detroit residents are left without running water. The cost of water and sewer has increased more than 60% in the past 10 years, leaving many residents unable to pay their bills. This article will break down why utility bills are higher than ever in 2020, and why the United States is in desperate need of capital water infrastructure improvements. 

Why Are Water Rates In The United States So High?

Water infrastructure improvements are a necessary investment to ensure that all Americans have access to safe and affordable water. The reality is that infrastructure in the U.S. is outdated. Millions of individuals are drinking water coming from distribution pipes that are 150 years old. The state of water infrastructure is so bad that the American Society of Civil Engineers gave the United States a “D Grade" just for water infrastructure. Cities and towns are retroactively trying to update water distribution networks as quickly (and cheaply) as possible. Although these improvements are not cheap, they are absolutely necessary.

Why Do We Need To Update Our Nations Water Infrastructure?

The short answer to this question can be summed up by what happened in Flint, Michigan. At the beginning of 2014, Flint residents were exposed to extremely high levels of lead that were hidden in the city's water distribution network. When the city switched over to a more corrosive water source, the lead levels sky-rocketed. Flint is not alone. New York City, Los Angeles, Pittsburgh, Portland (OR), and Denver all have lead levels that exceed public health goals. Because of the dangerous health impacts associated with lead exposure, preventing similar future incidents is extremely important. The good news is that a majority of funding for water infrastructure improvements are going towards Full Lead Service Line Replacement programs. 

Who Pays For Water Infrastructure Improvements?

Historically, the federal government paid for a majority of capital improvements, including water infrastructure. The financial burden has since shifted to state and local governments. In 1977, 63% of capital expenditures for water infrastructure and improvements came from the federal government. Currently, federal contributions only account for 9% of total water infrastructure improvements. This places an enormous financial burden on states and localities who are already dealing with other important public health issues. The bottom line is that money to fund water infrastructure projects now comes from the tax base. In already poor communities, increased utility rates can put a huge strain on families, causing them to stop paying for and using water altogether. 

Detroit, Michigan: Priced-Out of Basic Human Rights

Infrastructure improvements have increased utility rates to the point that Detroit residents are unable to pay their water bills. APM Reports compiled data from the City of Detroit regarding the cost of water bills over the past 10 years. The average water and sewer bill for a family of four in Detroit has increased 65% since 2010, which further breaks down to an annual expenditure of $1,151. 

Our Take

A crumbling water infrastructure has the potential to affect every single American. Rural communities that have a smaller tax base require a broader geographical spread of infrastructure improvements. On the other hand, larger cities must navigate a very complex web of distribution pipes. The reality is that capital infrastructure improvements will take time, and will be very costly for ratepayers nationwide. 

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The Other Contaminant From The Flint Water Crisis That Nobody Is Talking About: PFAS

Analies Dyjak @ Thursday, April 9, 2020 at 7:20 pm -0400

Analies Dyjak, M.A. | Policy Nerd   

Hydroviv's Policy Team has been keeping a close eye on water quality in Flint, Michigan, in the wake of their lead crisis beginning in 2014. A major problem that has been wildly underreported was the presence of Per and Polyfluoroalkyl Substances (PFAS) in Flint's municipal system at the time of the lead crisis. 

What Happened In Flint, Michigan?

If you're unfamiliar with the Flint Lead Crisis, our team wrote an in-depth article breaking down the major events. In short, city officials switched the city's source water from Lake Huron to the Flint River in an effort to save money. The story that we're breaking today discusses a contaminant that was known to be present in the Flint River at the time it was being used as source water for the city. 

Flint, Michigan’s Newest Problem: PFAS

A few years after the lead crisis in Flint, Michigan, the same afflicted city residents are now dealing with PFAS. Revitalizing Auto Communities Environmental Response Trust, also known as RACER, was created in 2011 after General Motors filed for Chapter 11 Bankruptcy. The goal of RACER was to address water pollution from various General Motors facilities, including discharges into the Flint River and surrounding groundwater wells. Because PFAS are not regulated, they were not included in GM’s National Pollution Discharge Elimination (NPDES) Permit.

The Michigan Department of Environment, Great Lakes, and Energy has acknowledged that PFAS pollution is of great concern in the Flint River, and could potentially threaten surrounding groundwater wells. Flint switched from Lake Huron to the corrosive Flint River, causing extreme levels of lead contamination and what’s now known as the “Flint Lead Crisis.” The science is now making clear Flint residents were being exposed to more than just lead. At the beginning of March, 2020, RACER announced they would begin work to reroute underground stormwater lines away from the Flint River. Due to COVID-19, these PFAS mitigation efforts have been postponed. 

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Latest PFAS Legislation (Federal and State)

Analies Dyjak @ Thursday, April 9, 2020 at 4:42 pm -0400

Analies Dyjak, M.A. | Policy Nerd   

PFAS have been detected in tap water across the entire country. In an effort to reallocate funding to address the current pandemic, various mitigation projects have been postponed. While we agree a majority of funding and resources should be allocated to COVID-19, water improvement projects should not be completely ignored. We wanted to highlight recent state and federal legislation regarding PFAS contamination, as well as important mitigation measures that have recently been put on hold. 

Newest PFAS Federal Legislation

The PFAS Action Act:
On January 10, 2020, The PFAS Action Act of 2019 passed the U.S. House of Representatives. The bill is now waiting to be voted on by the Senate. This bill would require EPA to set a national standard under the National Primary Drinking Water Standards for both PFOA and PFOS, triggering mandatory compliance by municipalities. Furthermore, the bill would require cities and towns across the country to reduce PFOA and PFOS in drinking water to levels set by EPA. The bill would also authorize $500 million over five years to help municipalities comply with the new PFAS standards. 

The Preventing Future American Sickness (PFAS) Act:
On January 29th, 2020, Senators Bernie Sanders, Jeff Merkley, and Ed Markey, introduced The Preventing Future American Sickness (PFAS) Act. This bill would require EPA to designate all PFAS chemicals as “hazardous substances” under CERCLA. It would also require federal assistance to individuals with private wells that have been contaminated with PFAS. The PFAS Act does not, however, explicitly ask EPA to set federal drinking water standards for PFAS chemicals. 

States Take Action on PFAS Contamination 

Alaska: Alaska State Legislature introduced a bill that would require more municipal testing, provide public notices when PFAS (specifically in the form of firefighting foam) is being used, and provide clean water to those who have detected PFAS in their drinking water. Unfortunately, Alaska does not have enough state funding to set their own Maximum Contaminant Levels (MCLs), and therefore must wait for federal PFAS standards. 

California: On February 6, 2020, California reduced its Response Levels (RLs) from 70 parts per trillion (combined PFAS) to 10 parts per trillion for PFOA and 40 parts per trillion for PFOS. If municipal concentrations exceed these levels, the public utility must notify residents within 30 days of receiving laboratory results. The California Water Board is also in the midst of completing a PFAS investigation. 

Georgia: In April of 2019, Georgia prohibited the use of Class B fire retardants, which includes all PFAS chemicals. There are a few major exemptions included in House Bill 458 that make it extremely flawed. These exemptions include the use of Class B fire fighting foams in response to an emergency fire, as well as for training purposes, if the facility is built to prevent PFAS from being released into the environment. 

Minnesota: In April of 2019, Minnesota lowered their health-based advisory level for PFOS from 27 parts per trillion to 15 parts per trillion. If a municipal water system has PFOS levels above 15 parts per trillion, the utility must notify residents. 

New Hampshire: In July of 2019, New Hampshire adopted the most stringent standards for PFAS in drinking water in the country. PFOA=12 parts per trillion, PFNA=11 parts per trillion, PFOS=15 parts per trillion, and PFHxS=18 parts per trillion. However, in December, the Merrimack County Superior Court issued an injunction on the PFAS standards, claiming that the New Hampshire Department of Environmental Services did not adequately weigh costs and benefits. 

New York: We recently wrote an in-depth article about New York’s response to PFAS contamination which can be found here.

 

Vermont: On May 16, 2019, Vermont’s Governor signed into law some of the most stringent PFAS standards in the country. Five combined PFAS variations (PFOA, PFOS, PFHxS, PFNA, and PFHpA) must be below 20 parts per trillion in state-wide public water systems. 

Our Take: 

While state and federal legislatures are still actively trying to make things happen regarding PFAS, several mitigation projects have been postponed. A reallocation of funds in response to COVID-19 is the responsible move. It’s also important to acknowledge that in the meantime, millions of American are still drinking contaminated water. Instead of looking at public health as a holistic entity, we are selectively responding to immediate threats and failing to prevent future exposure. 

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