Federal Water Tap, September 5: EPA Reduces Wetlands Protections in Accordance with Supreme Court Decision

The Rundown

• EPA and Army Corps revise the protected wetlands definition to align with the U.S. Supreme Court’s Sackett decision.
• White House advisory group recommends a federal Department of Water.
• EPA approves an on-site wastewater treatment facility for the East Palestine train derailment cleanup.
• Federal transportation regulator considers defining when pipeline accidents cause “significant injury to the environment.”
• FEMA allocates more than $2.4 billion to climate resilience and flood protection projects.
• FEMA also finalizes the process for submitting property loss and personal injury claims from New Mexico’s largest wildfire.
• A Senate committee will hold a hearing this week on water infrastructure.

And lastly, a House bill again targets foreign operators of U.S. farmland – and the water they use.

“Arizona’s water and crops belong in Arizona – not Saudi Arabia. No longer should foreign governments and companies be given sweetheart deals that leave Arizonans worse off.” – Statement from Rep. Ruben Gallego of Arizona. The Democratic representative again introduced legislation that targets foreign operators of U.S. farmland. At least one Saudi Arabian company leases farmland in Arizona. (See below for more details.)

By the Numbers

$2.4 Billion: Funding allocated by FEMA to climate resilience projects. Three-quarters of the funds ($1.8 billion) are through the Building Resilient Infrastructure and Communities program to prepare for natural hazards. Just more than half of applications, by dollar amount, were able to be funded. The remainder of the funds ($642 million) are via the Flood Mitigation Assistance program.

News Briefs

WOTUS Redone
Federal agencies reworked their definition of protected wetlands to align with the Supreme Court’s Sackett decision that reduced the reach of the Clean Water Act.

The new rules notably eliminate the “significant nexus” test that was a basis for determining protected wetlands since a 2006 court decision.

The EPA and Army Corps are holding public webinars on September 13 and 20 to explain the new regulatory regime. Register

Ohio Train Derailment Cleanup
The EPA approved Norfolk Southern’s plan to install an on-site facility to treat toxic wastewater in eastern Ohio. A company train derailed in the town of East Palestine on February 3, 2023.

The derailment site is oozing chemical-laden water – about one million gallons per week, according to the EPA. A top chemical of concern is vinyl chloride.

The treated wastewater will be trucked elsewhere for disposal. Typically it is pumped deep underground. Spectrum News reports that one destination is injection wells in Coshocton County.

Pipeline Accident Investigations
What is “significant injury to the environment”?

The National Transportation Safety Board has the authority to investigate pipeline accidents that cause such environmental injuries. But the Board has not defined the phrase.

The Board intends to provide clarity. Its proposed definition: “a discharge of 1,000 barrels or more of crude oil, refined petroleum product or anhydrous ammonia; into or on the navigable waters or adjoining shorelines or unusually sensitive areas.”

“Sensitive areas” are already defined in statute and include drinking water sources and ecologically important areas.

Public comments are being accepted through October 30. Submit them via www.regulations.gov using docket number NTSB–2023–0008.

Water and Food Nationalism
Two Arizona Democrats reintroduced a bill in the House that targets foreign owners of U.S. farmland. The same bill did not pass in the last session of Congress.

The Domestic Water Protection Act would impose a 300 percent excise tax on the sale price of any “water-intensive crop.”

A water-intensive crop, according to the bill, is any crop grown in an area with “prolonged drought” and by a non-domestic producer.

Prolong drought, according to the bill, is any area identified by the U.S. Drought Monitor as having severe, extreme, or exceptional drought for six months or more.

Taxes collected under the bill would be placed in a trust fund and distributed under the Bureau of Reclamation’s WaterSmart program.

The House bill reflects a Congress that is skeptical of foreign farmland acquisitions in the U.S.

In March, a bipartisan group of senators introduced a bill to increase scrutiny of foreign purchases of U.S. farmland.

The bill, which is still in committee, would require the interagency Committee on Foreign Investment in the U.S. to review agricultural land purchases by countries that are deemed to be national security risks.

Studies and Reports

Department of Water?
The expert group that advises the White House on infrastructure finalized a report that says the federal government should establish a cabinet-level agency to “steward” water issues as part of a national water strategy. The Department of Energy, after all, was formed only in 1977.

The recommendation is part of a 39-page report on preparing the nation’s critical systems for water crises.

The cabinet position is a concrete action. There are many more like it: expedite tribal water rights settlements; invest in infrastructure; boost weather forecasting spending; consolidate small water systems with larger neighbors.

Other suggestions in the report are more nebulous or require extensive work plans: a “public awareness” campaign to raise the importance of water nationally, or “eliminate silos” between federal, state, and local agencies.

On the Radar

Senate Water Infrastructure Hearing
On September 7, the Senate Committee on Environment and Public Works will hold a hearing on drinking water and wastewater infrastructure.

Witnesses include a state regulator, a utility leader, and a rural water representative.

EPA Science Advisory Board Hearing
The group that advises the EPA on science matters will hold a public meeting on September 21-22.

On the agenda: reviewing the agency’s work to map hazards in environmental justice communities and to assess the toxicity of the drinking water contaminant hexavalent chromium.

The draft report on hexavalent chromium indicated the chemical is likely to be toxic to the gastrointestinal tract and liver and stunt child growth.

Call-in information is available in the meeting link.

Hermit’s Peak/Calf Canyon Fire Claims
FEMA finalized the process for filing property loss and personal injury claims stemming from the Hermit’s Peak/Calf Canyon fire, which was New Mexico’s largest ever.

Claims must be filed by November 14, 2024.

Health problems from contaminated air or water resulting from the fire are allowable claims. Reforestation and revegetation to prevent erosion and minimize flooding can be fully compensated.

Because of the higher flood risk in the burn scar, residents can get a five-year flood insurance policy that is covered by the federal government.

The fire was caused by the U.S. Forest Service when a prescribed burn grew out of control. Congress allocated nearly $4 billion for fire recovery and damages.

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