Federal Water Tap, August 20: Judge Reinstates Clean Water Rule in 26 States

The Rundown

District judges weigh in on Clean Water Rule and Keystone XL pipeline. Bureau of Reclamation forecasts show that a lower Colorado River shortage declaration is likely in 2020. The U.S. government commits $350 million for a water supply project in Mongolia’s capital. The U.S. Supreme Court appoints a new special master to oversee the Florida v. Georgia water rights case. The GAO reviews environmental restoration in the San Francisco Bay Delta. The EPA receives 62 letters of interest for water infrastructure loans. And lastly, a Senate committee holds a hearing in Michigan on Great Lakes oil pipeline safety.

“As administrations change, so do regulatory priorities. But the requirements of the [Administrative Procedure Act] remain the same. The court finds that the government failed to comply with these requirements in implementing the Suspension Rule.” — U.S. District Judge David Norton, ruling that the Environmental Protection Agency failed to follow the rules when it suspended the Clean Water Rule earlier this year. Norton’s injunction reinstated the rule in 26 states.

By the Numbers

62: Projects that submitted letters of interest for WIFIA, a water infrastructure loan program. The projects — spanning desalination facilities and sewage tunnels as well as water main repairs, reservoir replacements, and water recycling — requested a combined $9.1 billion in loans. This is the second round of WIFIA funding. (U.S. Environmental Protection Agency)

News Briefs

District Judge Reinstates Clean Water Rule
A U.S. District Court judge in South Carolina concluded that the Environmental Protection Agency did not follow proper procedures when it suspended a rule that determines which waterways are protected by the Clean Water Act.

Judge David Norton, a George W. Bush appointee, agreed with the conservation groups that brought lawsuit that the EPA failed to take public comment on the proposal and consider the consequences of suspending the Clean Water Rule, also known as WOTUS.

The ruling means that the contentious Clean Water Rule — a target of the Trump administration’s deregulatory mission — will go into effect in 26 states. (In other states, separate legal challenges resulted in injunctions that halted the rule.) It will change, for now, the way that the Army Corps of Engineers issues permits for projects that damage wetlands and streams.

The Trump administration is still working on repealing the rule and rewriting it with a less expansive definition.

Judge Orders Additional Keystone XL Review
A U.S. district judge in Montana ordered the State Department to undertake a more-thorough analysis of the environmental effects of a modified Keystone XL pipeline route through Nebraska.

The State Department published a less comprehensive environmental assessment of the new route in July, claiming that the pipeline would have “negligible” effects on groundwater. The court ordered additional review because the new route differs from the one that the State Department analyzed.

Mongolia Water Supply Project Funded
The U.S. government is entering into a five-year, $350 million agreement with the government of Mongolia to fund a water supply project for the capital Ulaanbaatar, home to 2.4 million people.

The Mongolian government will contribute an additional $111 million for the project, which involves construction of 52 wells and a water recycling facility.

The agreement also requires the Mongolian government to charge enough for water to cover the cost of operating, maintaining, and replacing the system.

The compact is being executed through the Millennium Challenge Corporation, a government program established during the George W. Bush administration to cut poverty by boosting economic growth and improving governance.

New Special Master in Florida v. Georgia
The U.S. Supreme Court named a federal appeals court judge to be the new special master overseeing a water rights dispute between Florida and Georgia.

Judge Paul Kelly Jr. of the Tenth Circuit Court of Appeals will conduct hearings and gather evidence in a case that the high court, in June, decided to send back to the special master for further review.

The court did not respond to Circle of Blue’s inquiry about why the change was made.

Washington State Water Pollution Standards
At the request of industry groups, the EPA will reevaluate water pollution standards it approved two years ago for Washington state, the Associated Press reports.

Washington regulators set stricter standards largely to protect those who consume more fish, usually members of Indian tribes.

Studies and Reports

Lake Mead Forecast: Shortage Declaration Likely in 2020
Unless there is a rapid change in hydrology, Lake Mead appears set to reach the elevation at which the lower basin states in the Colorado River watershed — Arizona, California, and Nevada — will see first-ever mandatory water restrictions in 2020.

According to the Bureau of Reclamation’s 24-month forecast, the elevation of Lake Mead is projected to be 1,070 feet at the end of 2019 – well below the 1,075-ft level that triggers the mandatory cuts, which, at this first stage, will be borne by Arizona, Nevada, and Mexico.

Lake Mead has had help in recent years to stay above the 1,075-ft threshold. Lower basin states have voluntarily withdrawn less water than they are entitled to, while dam managers have released extra water from Lake Powell, an action required under operating guidelines agreed to in 2007.

Lake Powell absorbed those hits. But now, at 48 percent full, the lake is nearing the point at which that bonus water would halt. That would hasten Lake Mead’s decline, potentially to unprecedented depths that will test the strength of institutions and relationships at all levels of government: local, state, regional, and federal.

In context: Lake Mead Record Low Reflects Changing American West

GAO Assesses San Francisco Bay Delta Plans
There is no comprehensive database that tracks the status of environmental restoration projects in California’s San Francisco Bay Delta, nor is there an accounting of total funding for restoration, according to a Government Accountability Office report.

Competing interests and availability of federal funding were the top obstacles to successful environmental restoration, according to a survey the GAO conducted of 48 federal and local agencies.

On the Radar

Great Lakes Oil Pipelines Hearing
On August 20, the Senate Committee on Commerce, Science, and Transportation holds a hearing in Traverse City, Michigan on oil pipeline safety in the Great Lakes. The main topic will be Line 5, twin oil pipelines that cross beneath the turbulent Straits of Mackinac and are operated by Enbridge, a Canadian oil company. Green groups want to see the lines decommissioned.

In context: Line 5 Oil Spill Would Inundate Large Swaths of Great Lakes Shoreline

Line 5 Modifications
In a proposed revised consent decree, the Justice Department clarified expectations for improvements that Enbridge must make to secure Line 5.

The revisions specify where Enbridge must anchor the pipelines to the lake bed.

Signed in 2017, the consent decree resulted from oil spills in 2010 from Enbridge pipelines in Illinois and Michigan.

Public comments are being accepted for 30 days and can be sent to pubcomment-ees.enrd@usdoj.gov.

Federal Water Tap is a weekly digest spotting trends in U.S. government water policy. To get more water news, follow Circle of Blue on Twitter and sign up for our newsletter.

Brett Walton

Brett writes about agriculture, energy, infrastructure, and the politics and economics of water in the United States. He also writes the Federal Water Tap, Circle of Blue’s weekly digest of U.S. government water news. He is the winner of two Society of Environmental Journalists reporting awards, one of the top honors in American environmental journalism: first place for explanatory reporting for a series on septic system pollution in the United States(2016) and third place for beat reporting in a small market (2014). He received the Sierra Club’s Distinguished Service Award in 2018. Brett lives in Seattle, where he hikes the mountains and bakes pies. Contact Brett Walton