Federal Water Tap, July 2: Supreme Court Sends Back Florida v. Georgia Water Case

The Rundown

More investigation needed in Florida v. Georgia lawsuit. Federal authorities issue strong warning about Colorado River water supply risk. Pruitt seeks changes in EPA veto authority under Clean Water Act. The CDC links an E. coli outbreak spread through romaine lettuce to irrigation water in Arizona. The EPA grants Oklahoma authority to oversee coal ash disposal in the state. Senate passes a farm bill. The EPA schedules more community meetings to discuss PFAS pollution. HUD approves hurricane recovery plans for Florida (Irma) and Texas (Harvey). And lastly, what does Justice Anthony Kennedy’s retirement from the Supreme Court mean for water?

“The risk is real and increasing.” — Brenda Burman, commissioner of the Bureau of Reclamation, on the potential of Lake Mead declining rapidly in the next decade. Burman was speaking at an event organized by the Arizona Department of Water Resources and the Central Arizona Project. Slides presented by Terry Fulp, director of Reclamation’s Lower Colorado region, showed a substantial risk of unprecedented declines in Lake Mead if the current low-flow hydrology continues. (See slide 16.) And yet, upstream, state and local agencies are attempting to draw more water from the river.

By the Numbers

6.8 million acre-feet: Consumptive use of Colorado River water in calendar year 2017 by Arizona, California, and Nevada. It was the lowest annual use for the three lower basin states since 1992 as they seek to keep Lake Mead from dropping ever lower. (Bureau of Reclamation)

95: Disease outbreaks in the United States between 2000 and 2014 that were traced to swimming in rivers, lakes, and oceans. Nearly three in five outbreaks happened in the month of July. The outbreaks caused two deaths. (CDC)

News Briefs

Florida v. Georgia Interstate River Case
Think of it as a remedial assignment. In a 5-4 ruling favorable to Florida, the Supreme Court decided to send back for further review a case concerning use of water from the Apalachicola-Chattahoochee-Flint basin, a river system shared with Georgia.

Send it back to whom? To the lawyer the court appointed to oversee the fact-finding. That lawyer, called a special master in these cases, determined that Florida, which brought the complaint, could not prove that limiting Georgia’s water withdrawals would improve the ecology of the Apalachicola Bay, at the downstream end of the basin.

The justices said this determination was wrong — the special master would have to uncover more facts in order to make that claim.

Florida is deserving of having Georgia’s withdrawals limited only if the benefits substantially outweigh the harm, the justices argued. They listed a number of facts needed to make a ruling: What does it mean for Georgia to take “too much water?” Would a cap on Georgia’s withdrawals result in more water in the Apalachicola Bay?

Pruitt Proposes Limiting EPA’s Clean Water Act Authority
In a memo to the EPA Office of Water, Pruitt directed staff to submit a proposal that would limit the agency’s Clean Water Act oversight.

Pruitt made a number of requests that relate to section 404(c) of the Clean Water Act, which allows the agency to veto a project before its developers apply for a permit to damage wetlands and streams. Pruitt wants to prohibit this course of action, both before a permit application is filed and after the Army Corps has weighed in.

“I am concerned that the mere potential of the EPA’s use of its section 404(c) authority before or after the permitting process could influence investment decisions and chill economic growth by short-circuiting the permitting process,” Pruitt wrote.

Pruitt made other requests, including that regional administrators, who had been in the driver’s seat for these vetoes, to seek permission from headquarters before initiating any 404(c) actions.

The EPA used this veto authority most recently in the Obama administration to block development of the Pebble deposit, in Alaska’s Bristol Bay watershed.

In context: EPA’s Proposed Veto of Alaska’s Pebble Mine in Line with Past Uses of Clean Water Act

Oklahoma Coal Ash Disposal
Scott Pruitt, the EPA leader, signed a decision that will allow his home state of Oklahoma to oversee and enforce regulations on disposing coal ash. There are five coal ash pits in the state. State oversight was enabled by Congress in a law passed in December 2016.

Energy and Water Appropriations and Farm Bill Pass Senate
The Senate passed two big bills that still need to be reconciled with House versions: a fiscal year 2019 spending bill for water resources programs overseen by the Army Corps of Engineers and the Department of the Interior, and a farm bill.

Transboundary Water Agreement
The AP reports that the Bureau of Reclamation and the province of Manitoba reached a deal on the operation of a rural water supply project in North Dakota.

Manitoba feared that the project, which moves water across river basins, would introduce non-native algae to Canada. Under the agreement, provincial engineers will help monitor the treatment process.

Hurricane Recovery Plans Approved
The Department of Housing and Urban Development approved state rebuilding plans in Florida and Texas to recover from hurricanes Irma and Harvey, respectively. Florida will receive $615 million in federal money, while Texas will receive $5 billion.

Both plans include money for voluntary buyouts of home in high-risk flood zones.

Correction: Last week’s edition said that the U.S. Fish and Wildlife Service is part of the Bureau of Reclamation. That is incorrect. Both are agencies within the Department of the Interior.

Studies and Reports

E. Coli Outbreak Linked to Irrigation Water
The E. coli outbreak in April and May that killed five people who ate tainted romaine lettuce has been traced to canals in Yuma, Arizona, where the lettuce was grown, the CDC reports. The Food and Drug Administration continues to investigate how the bacteria got into the water.

Water Accounting in the Colorado River Basin
The U.S. Geological Survey and Reclamation published a joint report that explains differences in how the two agencies calculate water-use data.

Lock and Dam Study
The St. Paul District of the Army Corps of Engineers will evaluate whether it should sell off three locks and dams on the upper Mississippi River, near the Twin Cities. Any recommendations will be forwarded to Congress.

Congress ordered one of the locks to close in June 2015 due to fears of Asian carp migrating upriver.

On the Radar

Supreme Court Vacancy
Justice Anthony Kennedy announced that he would step down from the Supreme Court this month. Kennedy was enormously influential for how the court interpreted the scope of the Clean Water Act, writing the opinion in the Rapanos case, in 2006, that waters with a “significant nexus” to navigable waters are regulated. The definition informed the Obama administration’s rulemaking, which is now being challenged by the Trump White House.

A court that moves to the right will take a stricter view of the Clean Water Act, argues Ann Carlson, an environmental law professor at UCLA.

“With a new, more conservative justice, we are likely not only to see a Trump rule upheld but also the invalidation of any attempt by a new, more environmentally friendly administration to assert more expansive jurisdiction over the protection of wetlands,” Carlson wrote.

Trump plans to nominate a new justice on July 9.

Another PFAS Community Meeting
The EPA announced it will hold a public meeting in Horsham, Pennsylvania, on July 25 to discuss PFAS contamination. Three military training sites near Horsham are the pollution sources.

Additional meetings will be held in Colorado and North Carolina.

Pumped Storage Potential in West Virginia
FreedomWorks LLC — an energy company, not the conservative donor network — filed for a permit to study a pumped storage hydropower facility in the West Virginia mountains. Pumped storage, in which water is released from an upper reservoir to a lower reservoir during peak energy demand, is the biggest source of electrical energy storage in the United States. It accounts for 95 percent of storage capacity, according to the Department of Energy.

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