Volume 15:2 April 2016 Legal Reporter for the National Sea Grant College Program The Flint Water Crisis – Is Anyone Legally to Blame? Also, NOAA’s Gulf Aquaculture Plan: Past, Present, and Future U.S. Supreme Court: Are CWA Jurisdictional Determinations Immediately Appealable? Microbead-Free Waters Act of 2015 The SandBar is a quarterly publication reporting on legal issues affecting the U.S. oceans and coasts. Its goal is to in crease awareness and understanding of coastal problems and issues. To subscribe to The SandBar, contact: Barry Barnes at Our Staff [email protected]. Sea Grant Law Center, Kinard Hall, Wing E, Room 258, P.O. Box 1848, Editor: University, MS, 38677-1848, phone: Terra Bowling, J.D. (662) 915-7775, or contact us via e-mail at: [email protected]. We welcome suggestions for topics you would like to see Production & Design: covered in The SandBar. Barry Barnes The SandBar is a result of research sponsored in part by the National Oceanic and Atmospheric Administration, U.S. Contributors: Depar tment of Commerce, under award Leigh Horn NA140AR4170065, the National Sea Grant Catherine Janasie, J.D. Law Center, Mississippi Law Research John Juricich Institute, and University of Mississippi Stephanie Showalter Otts, J.D. School of Law. The U.S. Government and the Sea Grant College Program are authorized to produce and distribute reprints notwithstanding any copyright notation that may appear hereon. The statements, findings, conclusions, and recommendations are those of the author(s) and do not necessarily reflect the views of the National Sea Grant Law Center or the U.S. Department of Commerce. Follow us on Facebook at: Recommended citation: Author’s Name, http://www.facebook.com/nsglc Title of article, 15:2 SANDBAR [Page Number] (2016). Cover page photograph of the Hamilton Dam on the Flint River in Flint, Michigan Follow us on Twitter at: courtesy of George Thomas. http://www.twitter.com/sglawcenter Contents page photograph of gulls on the Detroit River in Detroit, Michigan’s Mariner Park courtesy of Protopian Pickle Jar Photos. The University of Mississippi complies with all applicable laws regarding affirmative action and equal opportunity in all its activities and programs and does not discriminate against anyone protected by law because of age, creed, color, national origin, race, religion, sex, handicap, veteran or other status. ISSN 1947-3966 NSGLC-16-02-02 april 2016 ISSN 1947-3974 2 • The SandBar • april 2016 C ONTENTS The Flint Water Crisis – Is Anyone Legally to Blame? .................................................................... 4 Litigation Update: N.C. Court Rules on Beach Case .................................................................... 7 NOAA’s Gulf Aquaculture Plan: Past, Present, and Future ................................................ 8 U.S. Supreme Court: Are CWA Jurisdictional Determinations Immediately Appealable? ................................ 9 Microbead-Free Waters Act of 2015 ....... 12 Coast Guard Regulations Not Applicable to Aquaculture Operation ....................................... 14 april 2016 • The SandBar • 3 the FLInt WAter CrIsIs - Is Anyone LegALLy to BLAme? Catherine Janasie1 his past winter, the crisis in Flint over lead in its The Lead and Copper Rule drinking water became national news. Flint Through the SDWA, Congress directed the EPA to regulate Tresidents had been concerned with the water’s contaminants in drinking water that can adversely affect quality for months, and as the issues with lead health and are known to or could occur in public water contamination came to light, questions began to swirl systems.4 For each contaminant, the SDWA directs the about who was responsible. Many throughout the EPA Administrator to adopt “maximum contaminant country asked how such a crisis could even happen in the level goals” or MCLGs that “shall be set at the level at first place, questioning whether the U.S. Environmental which no known or anticipated adverse effects on the Protection Agency (EPA), State of Michigan, and Flint health of persons occur and which allows an adequate officials acted legally. In January, a group filed a class margin of safety.”5 action lawsuit against the City of Flint, the state Under the SDWA, the EPA has issued regulations treasurer, and the emergency managing board that was covering lead and copper contamination in drinking water, governing the City during the water crisis. The legal known as the Lead and Copper Rule (the Rule). Through questions in Flint revolve around a city’s water system’s the Rule, the EPA has set the MCLG for lead at zero, duty to protect the city’s pipes from corrosion, sample its since there is no safe level of exposure to lead.6 However, drinking water, and notify the public of elevated lead under the Rule, the lead action level is met when lead levels under the Safe Drinking Water Act (SDWA) and its concentrations “in more than 10 percent of tap water implementing rules. samples collected during any monitoring period … is greater than 0.015 mg/L.”7 The Dangers of Lead Water systems monitor lead levels by sampling Lead is a toxic metal that persists and accumulates in a household tap water. If these samples show that more person’s body over time. As such, it can be extremely than 10% of samples are above the lead action level, harmful to humans even at low levels. Lead exposure certain legal requirements are triggered. A water system, in adults can cause hypertension and reproductive for example, may be required to optimize its corrosion problems, as well as decreased kidney function. While control treatment, engage in public education, or even lead exposure can be dangerous to adults, fetuses, infants, replace lead service lines under its control.8 and young children are the most vulnerable to lead The Rule also focuses on preventing lead in plumbing exposure. Even a low dose can damage a child’s nervous from leaching into the drinking water supply.9 Since a lot system, affect growth, and impair hearing. In addition, of lead exposure is actually caused by lead leaching out of lead exposure can be the cause of learning and behavioral old plumbing, the Rule requires the use of an “optimal problems, as well as lowered IQs and hyperactivity.2 corrosion control treatment.” Once such treatment Lead is also a risk to pregnant women, as lead is option is determined by the state, the water system is stored in one’s bones along with calcium. When pregnant, required to install and operate the corrosion control a woman’s bones will release the lead stored in her bones throughout the distribution system.10 with calcium to help the fetus’s bone development, and lead can also reach the fetus through the placenta. Lead The Problems in Flint exposure of an unborn fetus can reduce the growth of Responsibility for ensuring that citizens have safe water the fetus and cause premature births.3 to drink is split in Flint, as in all municipalities, between 4 • The SandBar • april 2016 The Flint Water Plant tower in Flint, MI courtesy of Ben Gordon. the City’s water system, state officials, and the EPA. action.13 The EPA also has emergency powers under the Finger pointing among the major players began SDWA, such as the ability to issue an order to protect immediately after problems were revealed. While the the health of the public water system’s users or bring a SDWA directs the EPA to regulate drinking water civil suit.14 contaminants, if certain standards are met, states have the primary authority to enforce the EPA’s drinking water Corrosion Control regulations.11 In Michigan, the Michigan Department of The problems in Flint were caused by the decision not to Environmental Quality (MDEQ) is the entity responsible institute corrosion control immediately when the City for the enforcement of the SDWA in the state.12 switched from treated Detroit water to a new water source, The EPA still plays a role, however, in the the Flint River. At the time of the switch, the Michigan enforcement of these regulations. Under the SDWA, DEQ did not require that optimal corrosion-control be when the EPA discovers that a state is not meeting the instituted immediately; rather, only initial monitoring of requirements of the Act, the EPA Administrator is the water was required. This decision allowed the water required to take certain actions, including ordering the from the Flint River to corrode lead plumbing in Flint, public water system to comply or instituting a civil causing lead to leach into the water. april 2016 • The SandBar • 5 , y The Flint River in Flint, MI courtesy of Sarah Razak. e , In November, the EPA issued a memo clarifying that met the lead action level. For instance, sampling done by optimal corrosion control was required under the Rule Virginia Tech researchers showed much higher levels of when a water system switched from a treated water source, lead than the city’s water system’s monitoring.16 like water from the Detroit water system, to a new Under the Rule, samples are supposed to be drinking water source, like the Flint River.15 The memo collected from sites that are more likely to have lead in states that this situation “rarely arises” and the Rule “does their plumbing materials, which the water system is not specifically address such circumstances.” While noting directed to identify in order to have sufficient sampling “that there are differing possible interpretations” of the sites.17 Specifically, samples are supposed to be split Rule, the EPA takes the position in the memo that large between sites with lead service lines and sites with lead water systems (systems providing water to more than plumbing. If the system doesn’t have a sufficient 50,000 people) that have met the optimal corrosion number of sites with lead service lines, the system is control treatment requirements are required “to continue directed to obtain samples from all the identified sites operating and maintaining the treatment” when switching with lead service lines.18 Public water systems that serve water sources.