Judge maintains order: Deliver water to Flint residents

Jennifer Chambers
The Detroit News

A federal judge has again ordered Michigan and Flint officials comply with his court order to deliver door-to-door bottled water to Flint residents, saying a delay would perpetuate “the very irreparable harm the preliminary injunction is designed to address.”

U.S. District Judge David Lawson wrote the state has “the mistaken notion” the door-to-door delivery of bottled water will go to all Flint residents.

“The main thrust of the ordered relief is the proper installation and maintenance of tap water filters. For those homes that have properly installed and maintained water filters in place — which is the vast majority of residences, if the state defendants’ witnesses are to be believed — bottled water delivery is not necessary and was not ordered,” Lawson wrote in an order filed late Friday in U.S. District Court in Detroit.

Lawson said simply handing out a water filters does not ensure they are effective in reducing lead content of drinking water to an acceptable level.

“There must be a protocol in place to see that the filters are installed and maintained properly. Otherwise, the presence of a filter alone may cause the more insidious problem of false security in the suitability of the tap water for drinking. Second, for many without a proper filter in place, the difficulty of obtaining drinking water is significant, as the testimony demonstrated,” Lawson said.

“The injunction is tailored to the specific systemic harms found and is appropriate in scope. A stay pending appeal would perpetuate the very irreparable harm the preliminary injunction is designed to address.

“The motion to stay the preliminary injunction will be denied.”

Lawson ruled on Nov. 10 the city’s water resource sites were insufficient for the daily needs of Flint residents while the water remains unsafe to drink without filters.

He issued a preliminary injunction ordering the state of Michigan and city to provide four cases of bottled water per resident each week if officials can’t prove faucet filters are working to remove harmful lead.

Last week, state officials filed an emergency motion asking the Court of Appeals to block Lawson’s order. That court has not yet ruled.

Lawson said based on the evidence presented by witnesses — including some from the state — the court was convinced the proper installation and maintenance of faucet water filters for all Flint water users was the most effective way to ensure compliance with the Safe Drinking Water Act’s Lead and Copper Rule.

For households for which the state officials couldn’t show compliance, the court ordered bottled water be delivered, Lawson wrote.

“In their stay motion, the state defendants cite the cost of monthly delivery of bottled water to 100 percent of the Flint households as the basis for their conclusion that the court’s remedial order is unreasonable and overboard. That peculiar argument is based on a demonstrably false premise,” Lawson said.

According to state officials, Lawson’s order would be a five-fold increase over current efforts and require another 137 trucks, hiring at least 150 additional people and “a warehouse so large it is not clear if one even exists in the Flint area” at a cost of more than $11 million per month.

The judge ordered state and city officials to file a report by Dec. 16 detailing how they are complying with his order.

Henry Henderson, director of the Midwest Program for the Natural Resources Defense Council, which is suing the state with others in the case, said the people of Flint need safe water.

“Despite the state’s efforts to delay providing Flint residents with safe water, the district court confirmed what it already found last month — that people in Flint still need help. We ask the city and state to stop fighting the federal court order and focus on providing safe drinking water to every person in Flint, Michigan, as is their right,” Henderson said.

Anna Heaton, spokeswoman for Gov. Rick Snyder, said the state continues to deliver bottled water and filters by request — and distribution centers around the city remain fully operational for the pickup of water and filters.

“Additionally, the state and city are working together to increase the number of door-to-door teams in the city to check filter installation and maintenance, as discussed in a news conference in Flint today,” Heaton said.

The state is continuing to recommend the use of filtered water for cooking and drinking due to the ongoing work to replace lead service lines, Heaton said — and independent testing by researchers from Virginia Tech shows the water quality has improved dramatically and filtered water is safe for all populations.

“Reverting to bottled water will drain resources from pipe replacements and move the city’s water system backward in its recovery,” Heaton said.

Asked when state officials would begin door-to-door delivery per Lawson’s order, Heaton said on Friday “the logistics are still being worked out and we are also awaiting a decision on the stay request in the 6th Circuit (Court of Appeals).”

On Monday, lawyers suing on behalf of Flint residents, urged the appeals court to not block the court order.

Attorney Sarah C. Tallman with the Natural Resources Defense Council said 10 months after widespread lead contamination was discovered in tap water and an emergency was declared, some residents are still struggling to obtain enough clean water to meet their daily needs.

And the “harsh, on-the-ground reality” in Flint is that many volunteers who initially swept in to fill gaps left by the government response to the water crisis have grown exhausted, Tallman said, and have increasingly gone home.

“Winter is approaching, and as temperatures drop, residents’ struggles to hunt down daily drinking water will worsen,” Tallman wrote in her brief. “State officials’ own witness admitted that Flint’s tap water remains unsafe. Any further delay in ensuring adequate access to safe water is too long. A stay should not issue.”

In their emergency motion before the appeals court filed Nov. 22, attorneys for Michigan Treasurer Nick Khouri and the Flint Receivership Transition Advisory Board argue the best way to address Flint’s water issues is to repair the water distribution system, “which has been making a steady recovery precisely because residents are using it.”

Water must move through the system to enable the orthophosphate to coat its pipes and flush out lead particulates, attorneys for the Snyder administration said in their motion.

Earlier this year out of concern, the city held a flush initiative as well as installed automatic flushers in city hydrants to move old, stagnant water through the system.