Federal Water Tap, May 30: Supreme Court Narrows Wetlands Protections

The Rundown

• The U.S. Supreme Court limits federal wetlands protections.
• After a last-minute deal, the Bureau of Reclamation suspends environmental review of its Colorado River plan to analyze the new proposal.
• Comment deadline approaches for changes in White House guidelines for analyzing costs and benefits of federal regulations.
• A West Virginia county will benefit from an EPA grant to remove “straight pipe” sewage discharges.
• Members of Congress question the Navy about delays in processing Camp Lejeune water contamination claims.
• The EPA funds research into drinking water contamination from a fireworks chemical.

And lastly, Federal agencies provide more financial aid for drought response in the Horn of Africa.

“Right now, a storm of crises has pushed millions across the Horn of Africa to the brink. A long, protracted drought has exacerbated acute food insecurity. Recent flash floods have wiped out entire homes and livelihoods. And conflict in neighboring countries has also had a devastating impact on vulnerable populations, including internally displaced persons and refugees…This is a global problem that requires all of us.” — Linda Thomas-Greenfield, U.S. representative to the United Nations, speaking at a UN event to solicit funds to save lives in the Horn of Africa. Aid agencies say they do not have the funds needed to do the work.

By the Numbers

$524 Million: Additional funding allocated by the State Department and the U.S. Agency for International Development to respond to drought, conflict, and hunger in the Horn of Africa. The State Department says the money will help UN agencies and other humanitarian groups provide food, shelter, protection, water, medicine, and other necessities for people in Ethiopia, Kenya, and Somalia. Total U.S. aid to the region this fiscal year now amounts to $1.4 billion.

$495,840: EPA grant awarded to the nonprofit Dig Deep to build septic systems to 35 homes in McDowell County, West Virginia, that were dumping their sewage into creeks. Illegal sewage discharges like these are called “straight pipes,” a problem in poor, rural areas especially in the Deep South and Appalachia.

In context: Straight Pipes Foul Kentucky’s Long Quest to Clean Its Soiled Waters

News Briefs

Swamp Rules, or Wetlands in Court
The U.S. Supreme Court limited federal authority to protect wetlands from development, issuing a ruling in Sackett v. EPA that took a narrow view of water bodies that serve important ecological functions like moderating floods, filtering water, and storing carbon.

Federally regulated wetlands, the court held, in an opinion written by Justice Samuel Alito, are those with a “continuous surface connection” with a water of the United States. The court rejected the EPA’s “ecological importance” arguments.

The impacts of the ruling will be felt in Section 404 permits, which are required before filling in a protected wetland. Many development projects will no longer need those permits. States can set stricter terms, if they choose.

Colorado River Agreement
Pay the farmers.

That’s the heart of a last-minute proposal from Arizona, California, and Nevada to reduce water withdrawals from the Colorado River.

The short-term proposal, which would run through 2026, is considered a stop-gap measure until difficult decisions about long-term cuts can be worked out. It would conserve at least 3 million acre-feet of water in Lake Mead over three years. The enticement to take less water, for tribes and cities as well as farmers, is billions of dollars in federal funds that were approved in the Inflation Reduction Act.

The proposal is in response to a Bureau of Reclamation process to implement short-term reductions in water withdrawals from the beleaguered river.

After the states announced their proposal, Reclamation withdrew its initial draft assessment, which included two options for reducing water withdrawals. Reclamation will analyze the state proposal and publish an updated draft assessment. The goal is to finalize a deal “later this year.”

Regulatory Analysis Comment Deadline Approaches
Writing federal regulations is convoluted but the process could soon see substantial changes.

The Biden administration’s Office of Management and Budget is proposing to update rule-writing guidelines that were last updated in 2003.

Called Circular A-4, the guidance applies to the practice of weighing regulatory costs and benefits.

“The proposed changes could, if implemented as proposed, profoundly change benefit-cost analysis in federal rulemaking and greatly expand opportunities for public participation in the regulatory review process,” according to a brief from the law firm Bergeson and Campbell.

A major change would be a reduction in the social discount rate. This is how agencies calculate the future value of today’s actions. The proposal would reduce the baseline rate from 3 percent to 1.7 percent, a change that puts present and future on more equal footing.

The deadline for public comments is June 6. Submit them via this link.

Camp Lejeune
Last year Congress allowed military veterans and families who were exposed to contaminated water at Camp Lejeune to sue the government for compensation.

Members of Congress now want to know why they are hearing from constituents that the claims process is being delayed.

Ten members signed a letter to Carlos Del Toro, the secretary of the Navy, and Merrick Garland, the attorney general. At least one senator, Marco Rubio, sent a separate letter.

Studies and Reports

Future of Minneapolis Locks and Dams
The Army Corps of Engineers might offload responsibility for two locks and dams on the Mississippi River in Minneapolis, Minnesota.

The Army Corps released a scoping document that outlines factors it will consider when it assesses the future of Lower St. Anthony Falls Lock and Dam, as well as Lock and Dam 1, located lower on the river.

Congress directed the Corps to consider the future of the structures. Options include no change, de-authorizing the projects (meaning no more federal responsibility or maintenance), finding a new owner, removing the dams, or using them in a new way.

Fireworks and Drinking Water
The U.S. Environmental Protection Agency awarded Texas Tech University a $2.5 million grant to investigate the risk of drinking water contamination from the chemicals in fireworks.

The main chemical of concern is perchlorate, which the agency said in 2011 it would regulate in drinking water. The agency reversed that decision, though a federal court recently ruled that the reversal was unjustified.

On the Radar

Senate Water Affordability Hearing
On May 31, the Senate Committee on Environment and Public Works will hold a hearing on water affordability and small water systems.

In context: High Cost of Water Hits Home

Carper Won’t Seek Reelection
Sen. Tom Carper (D-DE), the chair of the Committee on Environment and Public Works and a water advocate, says he will not run for reelection in 2024.

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