Flint Aid Nigh as Parties Spar over Bottled Water Order

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By Rachel Leven and Stephen Joyce

Nov. 30 — Activity to address the drinking water crisis in Flint, Mich., caused by widespread lead contamination, is coming to a boil this week as key congressional lawmakers all but guaranteed a rescue package is nigh.

Meanwhile, litigation at the local level simmered as parties exchanged arguments in briefs to a federal appellate court on whether the city and state should be required to deliver bottled water to affected residents.

House Speaker Paul Ryan (R-Wis.) told reporters Nov. 30 that funding to help the beleaguered city would be provided “one way or another” this session, whether through the Water Resources Development Act (WRDA) compromise bill that still is being negotiated or through a continuing resolution Congress must pass to keep the government funded beyond Dec. 9.

Republicans have said the water resources bill is the appropriate vehicle for Flint aid.

“WRDA discussions are underway. And that is our preference,” Ryan said. “But this will be addressed. This is one of the things we committed to addressing. We will address it one way or the other.”

Aid Package Close

Rep. Dan Kildee (D-Mich.), whose district includes Flint, is working toward a final funding package that is between $120 million and $170 million, he told Bloomberg BNA Nov. 30.

About $120 million of the $220 million in funding included in the Senate version of the WRDA bill (S. 2848) was clearly designated for Flint, Kildee said, while the House version included $170 million.

Kildee, who is working with House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) on the package, said the goal is to meet at a point between those two numbers, and “obviously, the higher the number, the better.”

“Anything we do will be very helpful, but there isn’t enough there to completely fix the problem. It’s just a contribution toward fixing the problem,” Kildee said. He later added, “It’s not done until it’s done. So obviously there’s a little anxiety about that.”

While Congress debates assistance for the city, officials at the state and local level are balking at a Nov. 10 order by the U.S. District Court for the Eastern District of Michigan to provide door-to-door delivery of bottled water to all residents whose drinking water was contaminated.

The contamination occurred after the city switched to the Flint River as its source for drinking water without putting in the requisite corrosion controls. As a result, the improperly treated water ate away at the old supply lines causing lead to leach into residents’ drinking water.

Bottled Water Order Excessive

Michigan and Flint officials challenged the order in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati and submitted a brief Nov. 28 saying the directive exceeded the district court’s authority and asked that it be stayed ( Concerned Pastors for Soc. Action v. Khouri, 6th Cir., No. 16-2628, appellees’ response to motion for stay 11/28/16 ).

Accusing the district court of overreach, the state and local officials said in the appellate filing a federal court’s equitable powers “are not unlimited,” and its “injunction is an extraordinary use of an already extraordinary remedy.”

Henry Henderson, Midwest program director for the Natural Resources Defense Council, a party in the case, told reporters Nov. 29 his organization expects rulings on the stay requests “this or the following week.” A status report developed by the defendants describing their efforts to comply with the order is due Dec. 16.

Unrelated to SDWA, State Says

The petitioners, who also include the American Civil Liberties Union of Michigan, argued in a Nov. 28 filing that Flint residents continue to struggle in their efforts to access clean drinking water more than two years after a switch in the city’s water source led to lead-contaminated water flowing through residents’ household spigots.

Respondents in the case, including the Michigan treasurer and Flint receivership advisory board members, argued in a Nov. 28 brief the court has the authority to prohibit ongoing violations of the Safe Drinking Water Act, not order the state and city to do something unrelated to those alleged violations, such as require defendants to deliver bottled water door-to-door, the filing said.

The advocacy groups’ underlying lawsuit, filed in January, alleges Michigan state and city officials violated and continue to violate the federal Safe Drinking Water Act by failing to maintain optimal corrosion control treatment and properly monitor household tap water for lead.

Meanwhile, the EPA issued an action plan Nov. 30 calling on all levels of government to work with utilities and community groups to increase the safety and reliability of the nation’s drinking water.

The plan identified six action areas that address issues such as building capacity for small and disadvantaged communities to finance and manage infrastructure, advancing oversight of the Safe Drinking Water Act, strengthening source water protection, addressing unregulated contaminants and reducing lead risks.

—With assistance from Jonathan Nicholson in Washington.

To contact the reporters on this story: Rachel Leven in Washington at rleven@bna.com and Stephen Joyce in Chicago at sjoyce@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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