There is finally some good news in the legal protections of our water! While nationally there has been a push to weaken our laws and agencies responsible for protecting water, I’m happy to report a few victories at the federal, state, and local levels. Unfortunately, some it’s a bit technical so brace yourself for lots of acronyms and my translation of legalese.
Under the Clean Water Act (CWA) pollution discharged to surface waters must be permitted and monitored. However, the CWA does not apply to groundwater. In this case, the County of Maui was discharging treated sewage into wells and allowing it to travel to the Pacific via groundwater without a permit. The question before the Supreme Court was whether the CWA requires a permit when pollutants originate from a regulated source but are conveyed to surface waters by a nonregulated path, such as groundwater. In a 6-3 decision, they ruled that conveyance of pollution via groundwater requires a permit. This is a critically important interpretation to prevent the future and remediate current pollution involving groundwater. Our coal ash litigation to require the excavation of unlined coal ash was based on this idea.
Which waters are protected by the CWA has been debated and changed many times since it inception. In general, the scope has increased with our scientific understanding of water systems and the development of supporting case law. In 2015 the EPA altered the rules to include hydraulic connection, significantly expanding the protections. 26 states including both North and South Carolina filed to prevent the rules from taking effect. After 3 years of appeals, they ultimately lost in a unanimous Supreme Court decision. In 2019 the EPA began the process of redefining WOTUS to exclude certain waters from protection, including ephemeral streams and some types of wetlands. NC has again challenged the rules, essentially allowing them to keep the 2015 definition until the lawsuit concludes. Several groups in SC have also challenged.
In a unanimous and unopposed vote, Mecklenburg County has joined the growing list of states and municipalities to ban the use of toxic pavement sealers. In the simplest terms, there are 2 types of sealers that are used on parking lots; coal tar and emulsified asphalt. Coal tar contains about 1000x more polycyclic aromatic hydrocarbons (PAHs) than emulsified asphalt. PAHs cause cancer, mutations, birth defects, and/or death in fish, wildlife, and invertebrates. Several are classified as probably human carcinogens. The products are otherwise very similar in cost and performance. You can find more information here. PAHs have been linked to numerous fish kills across the country and at least 2 in the Catawba basin.