Statutes for Clean Water
See the following section to read student briefs on cases that interpret statutes for clean water.
Safe Drinking Water Act (SDWA) of 1974 (42 U.S. Code § 300j, et seq.)
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The Safe Drinking Water Act authorizes the EPA to set standards for public drinking water quality and monitor state, local authorities, and enforce those standards. The Act protects public water supplies from harmful contaminants, applying to any contaminant that adversely affects the odor or appearance of such water, adverse effect on the health of persons. Regulations specify contaminants, and what the maximum contamination level is as well as the quality control and testing procedures to ensure compliance.
The public water system is defined as a water system that is public for human consumption through pipes or other constructed conveyances which regularly serve at least twenty-five individuals. Regulations apply to water that is used for residential uses, drinking, bathing, and cooking. The EPA Administrator or the State exercises primary enforcement responsibility for public health equivalent level of protection provided by the applicable national primary drinking water regulations. The “Municipality” is defined as a city, town, or other public body created by or pursuant to State law, or an Indian tribe which means a Federally recognized Indian tribe recognized as a governing body carrying out substantial governmental duties and power over any area.
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Initially enacted by the U.S. Congress in 1974, the Safe Drinking Water Act (SDWA) is the principal federal law that oversees the quality of America’s drinking water. The SDWA authorizes the EPA to establish nationwide standard of public drinking water. The SDWA provides protection against harmful contaminants—both naturally-occuring and man-made—that adversely affect the odor or appearance of drinking water. In order to ensure compliance and monitor quality control standards, the Act provides the EPA authority to collaborate with states, municipalities, and water suppliers.
Section 300f “Definitions” provides information essential to the understanding of what is, and is not, covered by the scope of the Act. Most crucially, the drinking water standards covered by the Act only apply to public water systems (PWSs), excluding individual private wells. A PWS, as outlined in section 4A of the SDWA, is defined as “a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals.” Currently, there are over 150,000 PWSs, serving more than 300 million people, or greater than 88 percent of our nation’s population. There are three primary types of PWSs, the first, and most common, being Community Water Systems, those that provide water to the same populations year-round. Non-Transient Non-Community Water Systems and Transient Non-Commiunity Water Systems are examples of other PWSs that provide water at inconsistent intervals, or to disparate populations. All of these systems are subject to the SDWA.
The SDWA contains a series of enforcement processes, which differ between contaminants that are regulated and unregulated. The Act mandates the EPA to compose a Contaminants Candidate List (CCL), a list of unregulated drinking water contaminants that is published every five years. The EPA is then responsible for regulating such contaminants and is required to establish criteria for a program to monitor a minimum of 30 unregulated contaminants every five years. However, not all contaminants can remain unregulated. The Act requires the EPA to decide whether to regulate a minimum of five CCL contaminants with a drinking water standard every five years. If the EPA decides to regulate a contaminant by such a regulatory determination process, it must do so by proposing a regulation within 24 months of determination and finalizing the regulation within 18 months from the proposal date.
The SDWA also enforces a six-year review procedure, which requires the EPA to review its standards every six years, accompanied by appropriate revisions, maintaining or improving public health protection. Any revision proposal must undergo the standard-setting process. The Act also requires the EPA to maintain a National Contaminant Occurance Database (NCOD), containing updated information on regulated and unregulated contaminants in public water systems.
Boulder Canyon Project Act (BCPA) of 1928 (43 U.S.C. § 617, et seq.)
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The Boulder Canyon Project Act of 1928 authorized the construction of the Hoover Dam on the Colorado River and the All-American Canal to the Imperial Valley in California. In the 1920s, the Colorado River attracted attention for the flood damage caused to California’s Imperial Valley and its unpredictability. The Project Act was enacted to control floods, improve navigation, and regulation of River flow.
The Project Act created a framework for apportioning the Colorado River’s water to Arizona, California, Nevada, New Mexico, Utah, and Wyoming. The Act helped establish a stable water supply for three lower basin states, California, Arizona, and Nevada. Additionally, it made the Colorado River Pact of 1922 legally binding with the ratification of six of the seven states. This was eventually accomplished in 1944, despite Arizona’s refusal to sign on. Importantly, it appropriated 165,000,000 for the construction and authorized the Secretary of the Interior to construct, operate, and maintain a dam and reservoir.
Clean Water Act (CWA) of 1972 (33 U.S.C. § 1151, et seq.)
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While this statute concerns the jurisdiction of a stat to submit to the Administrator any plans it has for the discharge o dredged and fill materials into navigable waters of the United States (defined as “waters of the United States,” in 33 USCS § 1362(7)0, it ls describes the waters subject to this provision as “those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward o their ordinary high water mark, including all water which are subject to the ebb and flow of the tides shoreward to their mean high water mark, or mea higher high water mark on the west coast, including wetlands adjacent thereto.”
Cases that Interpret Statutes for Clean Water
Cases that Interpret the SDWA
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Link to the case: https://casetext.com/case/hydro-resources-inc-v-us-epa
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap6A-subchapXII
Please note that the following brief was prepared by a student.
Heading: Hydro Res., Inc. v. United States EPA, 562 F.3d 1249
Plaintiff: Hydro Resources, Inc
Defendant: United States Environmental Protection Agency
Facts: HRI a non-Indian mining corporation, intends to operate a uranium mine in McKinley County, New Mexico. No one lives on the Section 8 land, but the Navajo town of Church Rock Chapter lies approximately 6 miles south of the land. Section 8 is located in the checkerboard area of northwestern New Mexico, where federal land grants created a “pattern of mixed Indian and non-Indian land title”. Church Rock Chapter where 97.7% of residents are Navajo and the federal. The government holds 92% of the land, primarily for the Navajo Nation. The neighboring three quadrants in Section 8 are held in trust for Navajo whose grazing permits there span multiple contiguous sections. 95 Section 8 also sits above the Westwater Canyon Aquifer, which provides potable water to approximately 12,000 people living in the eastern half of the reservation. The jurisdictional dispute over HRI's land began in 1988 when HRI applied to the State of New Mexico for a permit to begin uranium mining. 105 HRI assumed that because its proposed operation was on private land, it should seek an SDWA permit from the State of New Mexico 106 under the State's Underground Injection Control (UIC) program. 107 Because HRI's land was surrounded by trust lands, however, the EPA argued that the site fell within a "dependent Indian communit[y]." 108 Prior to HRI III, the Tenth Circuit held in HRI II, that Section 8 was part of a dependent Indian community.
The Safe Drinking Water Act nationwide minimum drinking water protection standards. As part of the SDWA, Congress instructed EPA to prescribe an underground injection control program for all lands in the United States, including Indian lands, in order “to prevent underground injection which endangers drinking water sources.
By statutory default, EPA typically has primary enforcement responsibilities for lands that fall within 40 C.F.R. § 144.3's definition of “Indian lands” until a tribe has secured “Treatment as a State (“TAS”) Status.
Procedural History: Petitioner a mining corporation challenging a land status determination made by the defendant U.S. Environmental Protection Agency that so-called “Section 8” land owned by the petitioner in the “checkerboard” area of northwestern New Mexico was “Indian country” which subjected petitioner's proposed uranium mine to EPA regulation under the Safe Drinking Water Act
Legal Issue: Does the EPA have discretion for land status determination under the Safe Drinking Water Act?
Holding: Yes
Reasoning: The EPA concluded that a nearby Navajo chapter which necessarily included Section 8 was a dependent Indian community, and consequently, the EPA concluded that proper authority under the SDWA was to regulate underground injection on the Section 8 land.
The court saw no reason to reject the EPAs conclusion that the appropriate community of reference was a nearby Navajo Chapter.
Dissenting Opinion: None The court affirmed the judgment of the district court.
References:
Chloe Bourne*. "Note & Comment: Environmental Jurisdiction in Indian Country: Why the EPA Should Change its Definition of Indian Agency Jurisdiction under the Safe Drinking Water Act." Colorado Natural Resources, Energy & Environmental Law Review, 27, 293 Summer, 2016. advance-lexis-com.ezproxy.cul.columbia.edu/api/document?collection=analytical-materials&id=urn:contentItem:5M46-YXX0-00CV-H067-00000-00&context=1516831. Accessed April 3, 2023.
Claire R. Newman * (December, 2011). NOTE & COMMENT: CREATING AN ENVIRONMENTAL NO-MAN'S LAND: THE TENTH CIRCUIT'S DEPARTURE FROM ENVIRONMENTAL AND INDIAN LAW PROTECTING A TRIBAL COMMUNITY'S HEALTH AND ENVIRONMENT. Washington Journal of Environmental Law & Policy, 1, 352. https://advance-lexis-com.ezproxy.cul.columbia.edu/api/document?collection=analytical-materials&id=urn:contentItem:5KKH-1C70-02D1-3004-00000-00&context=1516831.
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Link to the case: https://casetext.com/case/manu-housing-instit-v-us-epa
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap6A-subchapXII
Please note that the following brief was prepared by a student.
Petitioners: Manufactured Housing Institute
Respondents: United States Environmental Protection Agency
Court: United States Court of Appeals for the Fourth Circuit
Facts: Submetering is a practice by which property owners meter and bill tenants for the water that they have purchased and distributed. The EPA had historically banned submetering, considering it akin to selling water, which is strictly prohibited under the Act. Driven by water conservation efforts, this policy was overturned in 2003, allowing unregulated submetering by owners of residential properties to occur under the SWDA. However, manufactured housing, including mobile-home parks, was excluded from such changes. Prior to its approval, the EPA issued a request for public comment on the proposed change, examining whether the limitation of the approval should extend to other property types.
The petitioners, Manufactured Housing Institute, is a national trade organization with various interests in the manufactured housing industry, possessing two mobile home properties. They argued against the EPA’s exemption of mobile-home parks from the submetering policy. The petitioners believed the distinctions between apartment buildings—which are permitted to practice submetering—and mobile-home parks to be arbitrary and capricious, leading them to challenge the EPA’s procedures and conclusions regarding the submetering policy under the Act.
Procedural History: This case was previously argued on February 2, 2005, before Judge Niemeyer, Judge Michael, and Judge Duncan. The petitioners, Manufactured Housing Institute, challenged respondents and the court did not decide on the case. The case was reargued at the present court.
Legal Issue: Did the EPA’s exclusion of manufactured housing from its submetering policy violate 42 U.S.C.S. § 300f 4(A)?
Holding or Decision: No, the court ruled that the EPA’s exclusion of manufactured housing from its submetering policy did not violate 42 U.S.C.S. § 300f 4(A).
Reasoning: 42 U.S.C.S. § 300f 4(A) clearly states that the Act governs all public water systems, defined as a system with fifteen or more service connections or one serving twenty-five or more people. The court also acknowledged that the statute does not explicitly consider the nature of ownership, whether public or private, in its definition. The EPA also considers “consecutive water systems” whereby multiple water systems connect with other systems to provide further distribution or sales to end-users. By interpreting the 42 U.S.C.S. § 300f 4(A) in such a way, the court alludes to the variety of entities that could be considered as public water systems.
The court also recognizes that the Act gives states primary enforcement responsibility. As such, states are free to enact such measures more stringently if deemed necessary. On the basis that the definitions provided in 42 U.S.C.S. § 300f 4(A) did not contradict the exclusion of manufactured housing from their submetering policy, and the ability of states to enforce regulations more stringently than required, the court reasoned against petitioners.
Dissenting Opinion: N/A.
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Link to the case: https://casetext.com/case/mays-v-city-of-flint-1
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap6A-subchapXII
Please note that the following brief was prepared by a student.
This case involves government negligence and violations of environmental and public health laws, which disproportionately harmed the predominantly black and low-income residents of Flint, Michigan. The decision to switch the city's water source to the Flint River, made as a cost-saving measure, led to lead contamination in the water supply and other health hazards. Despite residents' complaints and evidence of water quality problems, government officials failed to take timely and adequate action to address the crisis, violating their duty to protect public health and ensure access to safe drinking water. Some questions to consider include: How have historical racism influenced environmental decision-making processes and resource allocation in communities such as Flint, Michigan? What legal avenues are available for residents of communities affected by environmental racism to seek compensation, injunctive relief, and systemic reforms in response to government negligence and environmental injustice?
References & Research Notes:
PETER J. HAMMER +, PART I: STRATEGIC STRUCTURAL RACISM & THE FLINT WATER CRISIS: I. A PUBLIC DEBATE: THE FLINT WATER CRISIS, KWA AND STRATEGIC-STRUCTURAL RACISM, 18 J.L. Soc'y 1, (Fall, 2018).
The Flint water crisis reveals how structural and strategic racism intersected to harm the city's residents. Structural racism is evident in policies like Emergency Management that prioritize fiscal concerns over public health, while strategic racism is seen in decisions that disregarded the lives of Flint citizens for financial gain. Understanding the crisis through the lens of racial injustice is crucial for addressing the systemic issues that led to this tragedy.
Marianne Engelman Lado *, ARTICLE: TOWARD CIVIL RIGHTS ENFORCEMENT IN THE ENVIRONMENTAL JUSTICE CONTEXT: STEP ONE: ACKNOWLEDGING THE PROBLEM, 29 Fordham Envtl. Law Rev. 1, (Symposium, 2017).
The Flint Water Advisory Task Force, appointed by Governor Rick Snyder, concluded that the Flint water crisis was a case of environmental justice, highlighting how the majority Black and impoverished residents were not protected from environmental hazards as other communities. The Task Force blamed the Michigan Department of Environmental Quality (MDEQ) for cultural shortcomings and callousness in responding to community concerns. This raises questions about MDEQ's history of alleged discrimination against communities of color and the federal government's role in enforcing civil rights laws in environmental contexts.
Case that Interprets the BCPA
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Link to the case: https://supreme.justia.com/cases/federal/us/373/546/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title43/USCODE-2023-title43-chap12A
Please note that the following brief was prepared by a student.
In 1963, the United States Supreme Court decided on a long-standing debate between Arizona and California concerning water allocation from the Colorado River. The case arose because of the development of water projects in California that diverted water from the Colorado River, which Arizona claimed was reducing the amount of water available for irrigation and other purposes. Arizona filed the lawsuit against California in the Supreme Court in 1930 against the Secretary of the Interior, Ray Lynn Wilbur, and the six other states over the construction of a dam on the Colorado River. Arizona argued that constructing the dam and reservoir would violate Arizona's rights and divert water from the state for consumptive use elsewhere. The complaint further alleges that the Boulder Canyon Project Act, which authorized the construction, is unconstitutional and attempts to enforce the Colorado River Compact of 1922 that Arizona has refused to ratify. Arizona sought to enjoin the defendants from carrying out the compact, the act, and any related contracts.
The decision in Arizona v. California established several important elements in allocating the Colorado River’s water, including determining that Congress, through the Boulder Canyon Project Act of 1928, created a plan to apportion water for the Lower Basin of the Colorado River. In the Project Act, Congress gave the Secretary of the Interior authority to divide the Lower Basin’s mainstream waters and “the power to make contracts for the delivery of water, and by providing that no person could have water without a contract.” Pp. 373 U. S. 546-590. The court also held that apportionment was not governed by the Colorado River Compact, which Arizona refused to ratify, or the doctrine of equitable apportionment. The court writes, “No matter what waters the Compact apportioned, the Project Act itself dealt only with water of the mainstream, and reserved to each State the exclusive use of the waters of her own tributaries.” Pp. 373 U. S. 567-575.
Using the Project Act, the Court ruled the Secretary of the Interior had the unconditional authority to decide which users within each State were entitled to the River’s water and that in the “distribution of waters to users, state law has no place.” Pp. 373 U. S. 580. The court ruled in favor of Arizona and found that Congress’ intent to allocate the water could be found in sections 4(a), 5, and 8(b) of the Project Act.
Case that Interprets the CWA
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Link to the case: https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title33/USCODE-2023-title33-chap26-subchapIV-sec1344
Please note that the following brief was prepared by a student.
Court: Supreme Court of the United States
Facts: Sackett owned property next to Priest Lake which borders state and national parklands. They began to backfill with dirt in order to build a home, which was halted by the Environmental Protection Agency. Because the Sackett property contained wetlands, the EPA ordered them to restore the lot where backfilling occurred or face a fine. The justification for the EPA’s jurisdiction over these wetlands was that they were near a ditch that fed into a creek that fed into Priest Lake, a “navigable, intrastate lake.”
Procedural History: District Court entered summary judgment for EPA, confirmed by Ninth Circuit, confirming that the wetlands on Sackett’s property were covered by an ecologically significant nexus to navigable waters.
Legal Issue: Do wetlands without a continuous surface connection to the rivers, lakes, and streams of the United States count as "navigable waters of the United States" protected by the CWA?
Holding: No, wetlands without a continuous surface connection do not count as navigable waters of the United States, and are not subject to the CWA and EPA intervention.
Reasoning: The meaning of “navigable waters” means waters of the United States as indicated by 33 USCS § 1362(7). What classifies as “waters” within this definition, then, involves a significant nexus. According to 33 U.S.C.S. § 1344(g)(1), wetlands are included in the definition of waters, but only up to the extent that they are “adjacent” to these traditional waters such as streams, lakes, etc. In reference to the CWA, 33 U.S.C.S. § 1251, “‘waters’ may fairly be read to include only those wetlands that are as a practical matter indistinguishable from waters of the United States, such that it is difficult to determine where the "water" ends and the "wetland" begins.” Because the Sackett’s wetlands on their property were not continuously connected to waters of the United States, then they are distinguishable from these waters, and thus not subject to the jurisdiction of the EPA.
References:
FEDERAL STATUTE: Clean Water Act "Waters of the United States" Sackett v. EPA, 137 Harv. L. Rev. 390
ARTICLE: People and Penguins: The Case for an Environmentally Conscious Property Law, 55 Ariz. St. L.J. 1395
NOTES: CLIMATE ADAPTATION AND THE NEED FOR A NATIONAL LAND USE POLICY, 103 B.U.L. Rev. 1843