Federal Water Tap, January 31: Supreme Court to Review Wetlands Case

The Rundown

• The nation’s highest court will again take on the Clean Water Act.
• EPA Administrator Michael Regan commits to improving pollution oversight for marginalized communities.
• The Bureau of Reclamation, plus state and local agencies, break ground to repair a key irrigation canal in California’s Central Valley.
• The Biden administration does not renew leases for a mine in northeastern Minnesota.
• The CEQ outlines environmental justice priorities for 2022.
• The White House includes water utilities in a cybersecurity initiative.
• The CDC gives Michigan State University a grant to compile a health registry related to the Flint water crisis.

And lastly, the Bureau of Reclamation releases a draft framework, a starting point for determining how reservoirs in the Upper Colorado River basin will be operated this year in response to historically dry conditions.

“With your help, we will get this right. And, from the President on down, we will not stop working until we deliver on the commitments we made and the justice that communities are owed.” — Brenda Mallory, chair of the Council on Environmental Quality. Mallory made the comments during a meeting of the White House Environmental Justice Advisory Council. Mallory identified White House environmental justice priorities for 2022, including updating an executive order from the Clinton administration, releasing a screening tool to track federal commitments to EJ communities, and revising community engagement standards for environmental reviews.

By the Numbers

$187 Million: Cost of a project to repair a 10-mile section of the Friant-Kern canal that has been damaged by land subsidence caused by groundwater pumping for agriculture. The canal delivers irrigation water in California’s Central Valley. Subsidence has reduced the conveyance capacity of the canal’s middle reach by about half. Fully fixing the canal could cost $1 billion. The initial repair is being funded by local, state, and federal agencies.

In context: Who Should Pay to Fix California’s Sunken Canals?

News Briefs

Wetlands Case Headed to Supreme Court
The nation’s highest court will once again interpret the reach of the Clean Water Act, the foundational environmental law whose scope has been the subject of court and administrative battles for more than three decades.

The justices agreed to hear Sackett v. EPA, a case in which an Idaho couple disputes an EPA determination that wetlands on their property are protected by the Clean Water Act. The Sacketts are arguing for a more limited definition of the law.

This will be the second time the Sackett case will come before the Supreme Court. A short history: In 2007, before building a house on the property, the Sacketts filled in land that the agency says should not have been altered because it was a regulated wetland.

In 2012, the court ruled unanimously that the Sacketts could bring a civil suit against the EPA to challenge its findings. That decision did not consider the merits of the Sackett’s argument, only that they could have their day in court. Many days, as it turns out.

The court will hear the case this year during its October term.

EPA Commits to Pollution Enforcement
After a “journey to justice” tour through marginalized communities dealing with histories of pollution, EPA Administrator Michael Regan announced steps to increase oversight and enforcement of air and water violations, especially in places he visited in Louisiana, Mississippi, and Texas.

The actions include surprise inspections of facilities suspected of violations and new methods to assess exposure risks for communities located near industrial sites.

The agency also notified the city of Jackson, Mississippi, that it needs to repair its water system in order to provide reliable water.

Minnesota Mine Leases Canceled
The Biden administration canceled the renewal of two leases for a proposed copper-nickel mine in northeastern Minnesota.

Twin Metals, owned by a Chilean mining company, wants to mine ore at a site near the Boundary Waters Canoe Area Wilderness. The fate of the mine has waxed and waned according to the occupant of the White House. The Obama administration was wary of potential damage to rivers and wetlands, while the Trump administration signaled a green light.

Biden officials are making another turn. Last October, the U.S. Forest Service submitted an application to prohibit, for 20 years, new mineral leases on 225,378 acres of federally managed land near the Boundary Waters wilderness.

Studies and Reports

Flint Health Registry
The CDC awarded Michigan State University $3.6 million to compile a registry of Flint residents who were exposed to tainted water during the city’s lead crisis in 2014-15.

The registry helps track health effects in the community and serves as an information hub to connect residents to services.

As long as funds are available, the grant can be renewed annually for five years, totaling $18 million.

On the Radar

Drought Planning in the Upper Colorado River Basin
The Bureau of Reclamation kicked off its process for determining how reservoirs in the Upper Colorado River basin will be operated this year in response to the region’s historically dry conditions.

The aim of the drought plan is to keep Lake Powell from dropping below elevation 3,525 feet. Currently the reservoir’s elevation is 3,532 feet, seven feet above the target.

The bureau published a draft version of its planning “framework.” The framework defines foundational terms such as monitoring flows, accounting for water releases, and consulting with stakeholders. It is the starting point for developing reservoir operating plans, which outline water releases for the year.

Rod Smith of the Office of the Solicitor said that operating plans will be determined between February and April, when water availability in the basin for the year becomes more certain.

For all the interest groups in the basin, developing a plan within that time frame will not be easy. Smith called the three-month window “exceptionally tight.”

The framework is open for public comment until February 17. Submit them to droa@usbr.gov.

Cybersecurity
The White House announced that the water sector is being included in a federal cybersecurity initiative.

The initiative aims to expand technological options and data analysis to secure water utility computer systems from digital intruders. It will focus initially on the country’s largest water and sewer providers.

In context: Cheap Cybersecurity Defenses Exist, But They’re Not Reaching Water Utilities Who Need Them

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