Special Master Recommends Georgia Prevail in Water War with Florida

A special master appointed by the U.S. Supreme Court has recommended that the court rule in Georgia's favor in a water rights dispute with Florida. It's just the latest in the long-running dispute between Georgia, Florida and Alabama over water in two water basins that cross state lines. Florida claims that Georgia’s excessive water withdrawals have harmed the state’s oyster industry by increasing salinity in the Apalachicola estuary. The special master rejected Florida’s arguments, finding that Georgia’s water use is reasonable and that the requested relief might not outweigh the potential harms. The case will ultimately be decided by the Supreme Court.

Legislation Seeks to Designate PFAS as Hazardous Substances

On January 14, 2019, Rep. Debbie Dingell (D-Michigan) introduced H.R. 535, known as the "PFAS Action Act of 2019." If passed, the act would require the Environmental Protection Agency to designate per- and polyfluoroalkyl substances (PFAS, including PFOA, PFOS and GenX) as "hazardous substances" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or the Superfund law).

Manufactured and used around the world since the 1940s, PFAS can be found nearly everywhere. These substances don't break down and accumulate over time -- both in the environment and in our bodies. According to the EPA, there is evidence indicating that exposure to PFAS can lead to adverse human health effects.

PFAS can be found in

• food packaged in PFAS-containing materials, processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water;
• commercial household products, including stain- and water-repellent fabrics and treatments (such as Scotchgard), nonstick products and cookware (such as Teflon), polishes, waxes, paints, cleaning products, and fire-fighting foams;
• workplaces that use PFAS (such as chrome plating, electronics manufacturing, or oil recovery);
• drinking water near facilities that manufacture or use PFAS; and
• living organisms, including fish, animals, and humans, where PFAS have the ability to build up and persist over time.

While certain PFAS chemicals are no longer manufactured in the United States as a result of phase-outs, they are still produced internationally and can be imported into the country in consumer goods such as carpet, leather and apparel, textiles, paper and packaging, coatings, rubber and plastics. Some U.S. manufacturers stopped producing PFOA and PFOS -- which received the bulk of attention from scientists -- only to replace them with other PFAS. There are hundreds of other PFAS compounds which are still in production, many of which are direct replacements for PFOA and PFOS and have similar chemical makeups. All PFAS would be designated as hazardous substances under the proposed legislation.

According to a 2016 Harvard University study, Alabama has the fourth highest concentration of PFAS in its water supply behind California, New Jersey and North Carolina. Drinking water contamination in North Alabama has been linked to the 3M plan on the Tennessee River. The BASF chemical plant in McIntosh was also identified as a point of origin for PFAS contamination.

A draft toxicological profile for PFAS issued in June 2018 by a branch of the Centers for Disease Control was put on hold by the Trump Administration and EPA. The draft report suggested risk levels of 7 parts per trillion for PFOS and 11 parts per trillion for PFOA, as opposed to the 70 parts per trillion contained in a 2016 EPA health advisory. There are currently no legal limits on the amount of PFAS that can be discharged into the environment or contained in drinking water. According to a story in POLITICO on January 28, current EPA Acting Administrator Andrew Wheeler just recently signed off on a still-unpublished decision not to regulate PFOS and PFOA under the Safe Drinking Water Act. The issue promises to be a hot topic at Wheeler's upcoming confirmation hearing.

The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.

NC Hog Farm and President Sentenced to Pay $1.5M for Clean Water Act Violations

The U.S. Department of Justice announced that Freedman Farms was sentenced today in federal court to five years probation and ordered to pay $1.5 million in fines, restitution and community service payments for violating the Clean Water Act when they discharged hog waste into a stream that leads to the Waccamaw River.

The company's president was sentenced to six months in prison to be followed by six months of home confinement for his role in the violations.

According to evidence presented at trial, Freedman Farms discharged hog waste into a tributary of the Waccamaw River that flows through the White Marsh, a wetlands complex.  The farm had approximately 4,800 hogs.  The hog waste was supposed to be directed to two lagoons for treatment and disposal.  Instead, in December 2007, hog waste was discharged from the farm directly into the tributary.

We've been involved in CAFO cases, Clean Water Act cases, and potential criminal cases like this one many times.  Intentional discharges are no laughing matter, and can lead to jail time.

The Carolinas' Water War May Be Ending

In January 2007, the North Carolina Environmental Management Commission approved up to 10 million gallons of water per day to be withdrawn from the Catawba and used by the North Carolina cities of Concord and Kannapolis, located in the Rocky River basin. That decision sparked intense opposition in South Carolina and led to the Supreme Court filing later that year – State of South Carolina v. State of North Carolina, No. 138, Original, in the Supreme Court of the United States.

In late August this year, the Catawba-Wateree River Basin Bi-State Commission unanimously approved a resolution supporting an effort to settle the dispute using Duke Energy’s comprehensive relicensing agreement. That document, formed during a three-year span using 58,000 stakeholder hours with interest groups, resource agencies and water providers from both states, serves as Duke’s hydroelectric license application to continue operations along the Catawba beginning in 2008.

On November 12, 2010, representatives from attorney general offices in South Carolina and North Carolina presented a plan to end the Catawba River water dispute – the Carolinas’ Water War. Members of the Catawba-Wateree River Basin Advisory Commission who heard the presentation supported the arrangement. Now N.C. Sen. Clodfelter and S.C. Sen. Wes Hayes will head an effort to reach a water-use agreement between Duke Power, which uses water from the river, and legal teams from both states. Duke Energy and Catawba River Water Supply Project, both interveners in the federal case, supported the arrangement as well. Once S.C. Attorney General Henry McMaster and N.C. Attorney General Roy Cooper sign the agreement the Supreme Court case will be dismissed. However, McMaster has indicated that South Carolina won’t end its lawsuit until the deal is struck.

In the agreement, all users of Catawba water including interbasin transfers are subject to drought response plans “no less stringent” than those of Duke’s Low Inflow Protocol system, a much-heralded conservation tool introduced by the relicensing agreement. Both states, along with the Catawba-Wateree Water Management Group, must update the Catawba-Wateree River Basin Supply Study on water conditions every 10 years for possible modifications. For the term of Duke’s license, or until 2058, neither state is allowed to file a Supreme Court action against its neighbor as long as conditions of the agreement are followed.