Federal Water Tap, April 11: Supreme Court Reinstates Trump-Era Water Rule Related to Fossil Fuel Infrastructure

The Rundown

• The nation’s high court issues an emergency order that revives, at least temporarily, a ruling that constrains the ability of states and tribes to protect waterways from pollution.
• The EPA outlines three strategies for addressing nutrient pollution in the nation’s waters.
• A bank regulator proposes guidelines for managing climate-related financial risks.
• The Interior Department gives tribes more control over water policy on their reservations.
• Senators introduce bipartisan legislation for labeling wipes as non-flushable.
• NASA researchers explore the complexities of land subsidence in California’s Central Valley.
• NOAA funds a water resources research institute focused on predictive modeling and public communication.

And lastly, the White House seeks a large budget increase for the U.S. Environmental Protection Agency — with much of the bump going to water programs.

“The bottom line is that the EPA should not be substituting its own priorities, no matter how noble, over that of the states.” — Sen. Cynthia Lummis (R-WY) speaking at a Senate subcommittee hearing on drinking water and sewer infrastructure. Lummis was criticizing EPA guidance on how states should allocate infrastructure bill funding via the state revolving funds, the two loan-and-grant programs through which most federal dollars will flow for water system improvements.

By the Numbers

28 Percent: Increase in the U.S. Environmental Protection Agency budget that the White House is seeking for fiscal year 2023. In dollar terms, that would amount to an additional $2.6 billion compared to this year. A large portion of the increase ($900 million) is intended to expand water and wastewater funding that was included in Senate-passed legislation last year but was not part of the final infrastructure bill. Climate change and environmental justice are top priorities, according to the budget justification.

News Briefs

Supreme Court Reinstates Trump-Era Clean Water Act Rule
In a 5-4 ruling, the nation’s high court issued an emergency order that revives, at least temporarily, a Trump-era rule that constrains the ability of states and tribes to protect waterways from pollution.

A lower court had decided to void the rule, which involved Section 401 of the Clean Water Act. That section allows states and tribes a voice in the permitting process. In recent years, several had denied Section 401 permits to fossil fuel infrastructure projects.

The high court overturned the lower court’s decision, an action that reinstates a ruling that the Biden administration is in the process of reviewing.

Chief Justice John Roberts joined the three liberal justices in opposing the ruling. In her dissent, Justice Elena Kagan argued that the petitioners — eight conservative states, plus trade groups for oil, gas, and hydropower companies — did not present convincing evidence of “irreparable harm,” a standard that should be met for granting an emergency order. Petitioners objected to a district court vacating the rule without considering the merits.

Kagan and congressional Democrats criticized this use of the court’s “shadow docket,” which refers to cases that do not receive a standard hearing.

EPA Memo for Addressing Nutrient Pollution
The U.S. Environmental Protection Agency outlined three strategies for addressing nutrient pollution in the nation’s waterways.

Broadly speaking, the strategies relate to partnerships, policy, and financing. That means more partnerships with USDA programs; using revolving funds to clean up nonpoint source pollution and target rural communities; clearly defining pollution targets via numeric criteria; and finalizing pollution limits (TMDLs) for the 26,000 impaired water bodies that do not have them.

“Nutrient pollution continues to present a daunting and costly set of challenges, despite considerable prioritization and investment,” the memo states. “Our best hope for more effectively addressing our nutrient management challenges is to continue building partnerships.”

Interior Gives Tribes More Control over Water Policy
The Department of the Interior withdrew a policy from 1975 that prevented tribes from regulating water use on their reservations.

Rescinding the so-called Morton moratorium was a priority for the National Congress of American Indians.

Deb Haaland, the Interior secretary, said that the policy was “inconsistent with the department’s commitment to upholding Tribal self-determination and the federal trust responsibility to support Tribal sovereignty.”

Non-flushable Wipes Legislation
Senators introduced bipartisan legislation to address the fact that wipes labeled as “flushable” are gumming up the country’s water treatment equipment.

The WIPPES Act, introduced by Sens. Susan Collins (R-ME) and Jeff Merkley (D-OR) would require the Federal Trade Commission, within two years, to develop “Do Not Flush” labeling regulations for wipes sold commercially.

The bill would also authorize $5 million annually over five years for a PR campaign to educate the public about not flushing wipes.

A similar bill, but without the PR provisions, was introduced in the House last year.

Studies and Reports

Subsidence and Groundwater Use in the Central Valley
NASA researchers published a paper that explores the complex relationship between groundwater extraction and land subsidence in California’s Central Valley.

Published in the journal Scientific Reports, the paper attempts to distinguish between changes in water levels in confined aquifers and unconfined aquifers and how they relate to variations in land subsidence or expansion.

Hydrology Research Institute
The University of Alabama will be the home of another NOAA-supported hydrology research center.

Already the site of the National Water Center, the university will also host the Cooperative Institute for Research to Operations in Hydrology. A collaborative effort with 28 research partners, the five-year $360-million project will focus on predictive modeling and public communication.

On the Radar

Climate Risk Principles for Banks
The Federal Deposit Insurance Corporation, which protects individual savings accounts from bank failures, is seeking public comment on principles for managing climate-related financial risk for large banks.

In general terms, climate risks could undermine asset prices or ability to repay loans. Floods, severe storms, wildfires, and droughts are considered “physical” risks. The undesirability of carbon-intensive assets or homes in high-risk geographies are “transition” risks.

To understand their risk exposure, the FDIC suggests that banks should have accountability within their governing structures; identify, measure, and monitor their risks; and employ scenario planning to anticipate vulnerabilities.

The FDIC’s draft principles come two weeks after the Securities and Exchange Commission proposed climate-risk disclosure rules for publicly traded companies.

Comments are due June 3, and can be submitted here.

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