On June 2, 2021, President Biden announced that the U.S. Department of Health and Human Services (“HHS”), through the Administration for Children and Families (“ACF”) would launch the Low-Income Household Water Assistance Program (“LIHWAP”), a “first-of-its-kind water assistance program [that would] expand access to more affordable water and help low-income households affected by the COVID-19 pandemic pay their water and wastewater bills, avoid shutoffs, and support household water system reconnections related to non-payment.” As described in greater detail below, LIHWAP provides grants, which are issued and administered by ACF and the Office of Community Services, to states, territories, and tribes, known as “Grantees,” which are responsible for partnering with private owners and operators of public water systems and treatment facilities to offer water utility-bill relief to low-income households.
Water affordability has long been an issue of concern for legislators and policy makers. In 2016, the U.S. Senate Appropriations Committee directed the U.S. Environmental Protection Agency to contract with the National Academy of Public Administration (the “Academy”), an independent nonpartisan nonprofit organization chartered by the U.S. Congress, to conduct an independent study to establish a definition of and framework for community affordability of clean water. In the ensuing report, issued in October 2017, the Academy stated:
Affordability is an increasingly critical issue, particularly for low-income customers who are far more vulnerable to increased water costs. This greater vulnerability reflects both the greater share of their income that low-income users devote to paying for water services and the limited resources they have to respond to water rate increases. These water affordability issues have intensified over the last 15 years as water costs have risen more quickly than the Consumer Price Index and the costs of other utilities—except electricity, while lower income populations have experienced slower income growth.
In fact, by some estimates, water rates have increased, on average, by 41% since 2010. As a result, water affordability became of heightened concern during the COVID-19 Pandemic. Prior to the Pandemic, an estimated 12% of U.S. households struggled to pay their water bills. These affordability issues have intensified during the Pandemic as many households faced financial hardship.
In light of the Pandemic, LIHWAP was created by Congress under the Consolidated Appropriations Act of 2021 to assist households with “the lowest incomes, that pay a high proportion of household income for drinking water and wastewater services.” Specifically, LIHWAP provides “funds to owners or operators of public water systems or treatment works to reduce arrearages of and rates charged to such households for such services.” Funds are offered directly to “owners or operators of public water systems or treatment works” to reduce arrearages of and rates charged to low-income households for water service. LIHWAP is a temporary program, which either lapses by the end of 2023 or when all funds are used; the program does not have permanent statutory authorization.
The Consolidated Appropriations Act designates $638,000,000 to LIHWAP and the American Rescue Plan Act of 2021 provides $500,000,000 of additional emergency funding. Both statutes require that the allocation of funds be based on the following criteria: “(i) the percentage of households in the State, or under jurisdiction of the Indian Tribe, with income equal to or less that 150 percent of the Federal poverty line” and “(ii) the percentage of such households in the State, or under the jurisdiction of the Indian Tribe, that spend more than 30 percent of monthly income on housing.” In addition, three percent of the appropriated LIHWAP funds must be reserved for Indian Tribes and tribal organizations.
Once LIHWAP funds are allocated to the Grantees, it is up to them to implement policies and procedures to provide the relief to low-income households. In July 2021, the OCS issued an Information Memorandum to serve as guidance on how Grantees should implement LIHWAP funds to households. Specifically, the July 2021 OCS Information Memorandum provides how Grantees should establish a benefits matrix, which is a tool, such as a chart or point system, that outlines the factors used to determine the amount of benefits available to different households, such as “household income, household size, and household water costs/needs.” Furthermore, Grantees must establish written policies and procedures for intake workers to follow when deciding the amount of available funds for each household. While Grantees establish their own policies and procedures for determining eligibility and benefits, there are several important rules that a Grantee’s benefit polices should address, such as “whether there is a minimum and/or maximum (cap) benefit amount for which households can qualify,” charges covered, applicable timeframes, as well as the process and procedures for documenting the benefit calculation, notifying households of the benefit determination, and appealing a benefit determination.
In addition, the July 2021 OCS Information Memorandum sets forth three household priority groups: (1) Households with Disconnected Water Services, (2) Households with Pending Disconnections of Water Services, and (3) Households Seeking Help with Current Water Bills. For Households with Disconnected Water Service, the OCS states that Grantees may “use a variety of interventions to achieve the expected outcome of restoring service” such as, for example: paying the entire amount pay due plus any required fees; paying a portion of the outstanding balance and coordinating approval of other resources needed to bring the delinquent account current; paying a portion of a past due amount and negotiating reconnection of service for 90 days or longer based on the LIHWAP benefit; or negotiating with vendors to place the household on a budget payment plan. In a January 13, 2022 Information Memorandum, OCS stated that LIHWAP funds could be used to pay for water and/or wastewater arrearages transferred to a third-party debt collector.
The second priority group, Households with Pending Disconnections of Water Services, consists of households that currently have water service, but are about to lose such service due to nonpayment. This may mean that the household has received a disconnection notice or they have outstanding bills, but have been protected by a disconnection moratorium that is about to expire. For this group, the OCS has stated that the “expected outcome is to avoid a disruption of service regardless of how brief.” The third priority group, Households Seeking Help with Current Water Bills, consists of households that have working service and are not in arrears, but who seek help with current bills only.
As of February 2022, many states have already submitted implementation plans and have been disbursing funds to eligible households. However, as noted above, LIHWAP is a temporary emergency program and currently has no permanent statutory authority; it is yet to be seen whether a long-term program will be implemented that addresses water affordability.
In 2021, the United States Supreme Court (the “Court”) issued two decisions centered on equitable apportionment, the federal common law doctrine used by the Court to settle disputes between States sharing an interstate water source. The doctrine, first articulated by the Court in 1907, aims to produce “a fair allocation of a shared water resource between two or more States.” In Mississippi v. Tennessee, the Court considered, in a matter of first impression, whether the equitable apportionment doctrine applied to an interstate aquifer. In Florida v. Georgia, the Court evaluated whether Florida, in an action seeking the equitable apportionment of an interstate water resource to limit Georgia’s consumption of water, met its burden of demonstrating that Georgia’s overconsumption caused harm to Florida’s oyster fisheries and river ecosystem.
Disputes between two or more States related to the use of a shared water resource are subject to the original and exclusive jurisdiction of the Court, and the equitable apportionment doctrine has been the exclusive judicial remedy for interstate water disputes “unless a statute, compact, or prior apportionment controls.” The doctrine was first identified by the Court in Kansas v. Colorado, and has subsequently been applied to additional interstate rivers and streams, interstate river basins, situations where the pumping of groundwater affected the flow of interstate surface waters, and to anadromous fish that migrate through multiple States.
The guiding principle of the equitable apportionment doctrine is that “States ‘have an equal right to make a reasonable use’ of a shared water resource.” The equitable apportionment doctrine is flexible in nature, and the ultimate aim of the Court in applying the doctrine is to secure a just and equitable allocation “without quibbling over formulas.” In determining the allocation, the Court exercises “an informed judgment on a consideration of many factors.” One factor the Court considers is the law of the contending States concerning intrastate water disputes. For example, if both States recognize the doctrine of prior appropriation, which generally provides that priority of right between beneficial uses of a resource is based on seniority, then the Court will consider priority in its analysis. If both States recognize the riparian doctrine, which generally provides that an owner of land bordering a water resource has the right to use the resource, then the Court will consider the riparian doctrine in its analysis. However, the law of the contending States is not controlling, and the Court considers “all relevant factors” in applying the equitable apportionment doctrine. Additional factors the Court has considered include “a comparison of harms and benefits, measures that could improve efficient water use and enhance supplies of water, protection of existing economies that use the water, the size of party states’ river basin drainage areas and their contribution to in-stream flows, and the availability of alternative water supplies.”
In order to obtain an equitable apportionment, a complaining State bears the burden of showing that: (1) a threatened or actual injury of “serious magnitude” was caused by the other State’s water use; and (2) the benefits of the sought apportionment substantially outweigh the harm that might result. Both of these showings must be established by “clear and convincing evidence.”
In Mississippi v. Tennessee, the Court held, in a matter of first impression, that the equitable apportionment doctrine applied to groundwater from an interstate aquifer. The shared water resource at issue was the Middle Claiborne Aquifer (the “Aquifer”), an extensive underground aquifer that underlies portions of eight states in the Mississippi River Basin, including Mississippi and Tennessee. The City of Memphis, through its public utility, the Memphis Light, Gas and Water Division (“MLGW”) uses 160 wells located in Tennessee to pump approximately 120 million gallons of groundwater from the Aquifer per day. In 2014, Mississippi filed a bill of complaint with the Court against Tennessee, the City of Memphis, and MGLW, alleging that MGLW’s pumping constituted a “wrongful taking” and resulted in the siphoning into Tennessee of “hundreds of billions of gallons of high quality groundwater owned by Mississippi.” Mississippi argued that the wrongful taking occurred through the “cone of depression” caused by MGLW’s pumping activities. As a result, Mississippi had to drill deeper wells, and use more electricity, to access Aquifer waters. Generally, State complainants in interstate water disputes will request that the Court limit the other State’s diversion of the shared water resource. However, Mississippi’s complaint sought declaratory relief and monetary damages of $615 million for the value of the groundwater already consumed by the defendants. Mississippi expressly disclaimed equitable apportionment, arguing that it did not apply to this dispute. Tennessee argued that equitable apportionment was the only relief Mississippi could potentially be entitled to under the circumstances, and since that relief was disclaimed, the complaint should be dismissed.
The Court began its analysis by determining whether apportionment of the Aquifer would be sufficiently similar to past applications of the equitable apportionment doctrine to warrant the same treatment. Generally, equitable apportionment cases involve the following: (1) a transboundary resource; (2) water that flows naturally between the States; and (3) actions by one State that reach “through the agency of natural laws” into the territory of another State. The Court found that the Aquifer was a single hydrogeological unit spanning multiple States, and was therefore a transboundary resource. In addition, the Court found that the Aquifer groundwater flowed between States at a rate of one or two inches per day, which was sufficient to meet the second factor. Finally, MGLW’s pumping sufficiently reached through the agency of natural laws to affect the portion of the Aquifer that underlies Mississippi, as the “cone of depression” caused by the pumping extended into Mississippi. As a result, the Court found that the waters of the Aquifer were subject to the judicial remedy of equitable apportionment.
The Court disagreed with Mississippi’s argument that it had sovereign ownership of all groundwater beneath its surface, stating that although States have full jurisdiction over lands and waters within its border, this jurisdiction does not extend to interstate waters. Because Mississippi had not sought equitable apportionment, the Court dismissed the case. The Court provided that Mississippi could file for leave to amend its complaint to seek equitable apportionment.
In 2013, the State of Florida brought an original action against the State of Georgia, seeking an equitable apportionment of waters in the Apalachicola-Chattahoochee-Flint River Basin (“Basin”), an area containing three rivers that spans more than 20,000 square miles in Georgia, Florida, and Alabama. Florida alleged that Georgia’s overconsumption of Basin waters resulted in low flows in the Apalachicola River which caused the collapse of Florida’s oyster fisheries and harmed the river ecosystem. Florida argued that as a result of the low flows in the river, there was not enough freshwater flowing into the Apalachicola Bay to dilute the Bay’s seawater. This increase in salinity attracted saltwater predators, which destroyed the oyster population. In addition, Florida argued that Georgia’s overconsumption disconnected tributaries, swamps, and sloughs from the Apalachicola River, drying out habitats for river wildlife and plant life. Florida sought a decree by the Court requiring Georgia to reduce its water consumption.
The Court stated that in order to obtain an equitable apportionment, Florida had to (1) prove a threatened or actual injury of serious magnitude caused by Georgia’s water consumption; and (2) show that the benefits of the proposed apportionment substantially outweigh the harm that might result. As it related to the oyster fishery, Georgia asserted that it was Florida’s mismanagement of the fishery, including authorizing the overharvesting of oysters and failing to replace harvested oyster shells, that caused the fishery’s collapse and not Georgia’s water consumption. The Court did not make a finding as to the cause of the collapse, but found that Florida did not carry its burden in establishing that Georgia’s overconsumption was a sole or substantial factor leading to the collapse. Additionally, the Court found that Florida failed to show that Georgia’s overconsumption triggered the destruction of habitats for Florida’s river species. The Court held, therefore, that Florida failed to prove injury and causation by clear and convincing evidence and did not meet the “exacting standard necessary to warrant the exercise of this Court’s extraordinary authority to control the conduct of a coequal sovereign.” As a result, Florida’s case was dismissed.
Through the 2021 cases discussed above, the Court continued to expand and define the doctrine of equitable apportionment. The Court’s decision in Mississippi v. Tennessee extended the doctrine to a new interstate water resource, an aquifer underlying multiple States. The Court’s decision in Florida v. Georgia further demonstrated the substantial burden a complaining State must meet before the Court will provide equitable relief under the doctrine.
