Federal Water Tap, October 9: Supreme Court Returns with Big Case on Regulatory Authority

The Rundown

• The Supreme Court begins its fall term and agency regulatory authority is a key issue.
• The Army Corps begins barging fresh water to southern Louisiana as the area contends with salt water in the Mississippi River.
• President Biden’s proclamation on Child Health Day mentions nitrate, arsenic, and lead in drinking water.
• EPA science advisers complete their review of an agency toxicity assessment for hexavalent chromium.
• The EPA approves Ohio’s nutrient pollution “diet” for the main watershed in the western basin of Lake Erie.
• Bureau of Reclamation will assess options to prevent the spread of non-native fish in the Colorado River.
• Drought in Pacific Northwest is expected to cut total U.S. hydropower output for 2023.

And lastly, a New Jersey congressman tells the EPA his concerns about Legionnaires’ disease.

“I urge EPA to expeditiously complete its review of the [Microbial and Disinfection Byproducts] Rules to protect communities from opportunistic microbes like Legionella while also ensuring communities are not exposed to dangerous disinfectant byproducts.” — Rep. Frank Pallone (D-NJ) in a letter to EPA Administrator Michael Regan. Legionella bacteria cause Legionnaires’ disease, a respiratory ailment that resembles pneumonia and is America’s deadliest water-borne illness. In its most recent review of federal drinking water regulations, the EPA determined that Legionella rules could be strengthened.

In context: As Legionnaires’ Disease Cases Surge, Lawsuits Pile Up

By the Numbers

19 Percent: Decrease in expected hydropower generation in the Pacific Northwest in 2023, according to the U.S. Energy Information Administration. Because the region accounts for about half of national output, the EIA cut its hydropower generation forecast by 6 percent. Not all regions were so affected. Due to voluminous rains that filled reservoirs, California hydropower generation should double from last year.

News Briefs

Freshwater Deliveries in Louisiana
The Army Corps of Engineers began barging water to areas in Louisiana’s Plaquemines Parish that are dealing with salt water moving upstream in the Mississippi River near their drinking water intakes.

Lake Erie Nutrient Pollution
The EPA approved Ohio’s nutrient pollution “diet” for the main river that flows into the algae-plagued western basin of Lake Erie.

The TMDL for the Maumee River will seek to reduce total phosphorus load. The main source of phosphorus is runoff from manure and farm fertilizers as well as legacy nutrients in soils. More than 90 percent of nutrients in the river entering Lake Erie are from these nonpoint sources.

The region’s environmental groups were not pleased with the approval. They argue that the plan fails to target dissolved phosphorus, which more readily feeds algae.

In context: Danger Looms Where Toxic Algae Blooms

Water Bills in Congress
Lots of legislative energy recently, highlighted by new bills on water affordability, carbon capture, and infrastructure.

• Debbie Dingell (D-MI) introduced a bill to allocate $500 million to the federal government water bill assistance program.
• A bipartisan bill in the Senate would require contractors on public-private water infrastructure projects financed by WIFIA loans to hold surety bonds.
• A Democratic bill in the House to fund research on removing carbon dioxide from the atmosphere by any means – soil, forests, ocean, technology. It orders the EPA to assess the lifecycle impacts on air, water, and land of direct air capture.
• A bill to allow tribes more access to WaterSMART grants by waiving the non-federal cost share if it would impose too great a financial burden on the tribe.
• A bill to establish a technical assistance program for rural water utilities to prepare for natural and man-made hazards. It authorizes $20 million annually over five years.

Navy Fuel Leak on O’ahu
In response to a federal decree, the Navy organized a group of community leaders who will represent the interest of the local public as the Department of Defense works to close a fuel storage site on O’ahu.

A leak in November 2021 at the Red Hill Bulk Fuel Storage Facility contaminated drinking water at Joint Base Pearl Harbor-Hickam.

Closure plans and other documents can be found here.

Child Health Day
In a proclamation marking Child Health Day, President Biden mentioned drinking water contamination – specifically arsenic, nitrate, and lead — as an impediment to health.

“Parents across the Nation have told me unforgettable stories of environmental injustice — living near factories and seeing the paint on their cars peel off because the air was so corrosive, drinking water contaminated by nitrates and arsenic, and feeling fear when their children play outside in toxic air and rain,” the proclamation states.

In context: Is Agrochemical Contamination Killing Nebraska’s Children?

Studies and Reports

Non-Native Fish in the Colorado River
The Bureau of Reclamation will assess options for preventing the spread of non-native fish in the Colorado River.

The goal is to keep smallmouth bass from establishing populations below Glen Canyon Dam, where they could prey on threatened native species like the humpback chub. A shrinking reservoir behind the dam has increased the likelihood of smallmouth bass entering the dam’s water intakes and moving downstream.

EPA Science Advisors Review Agency’s Hexavalent Chromium Assessment
The Science Advisory Board, a group of outside experts, posted its final review of a draft EPA assessment of the toxicity of hexavalent chromium, an industrial chemical used in stainless steel production.

The group thought the EPA assessment was generally well reasoned and it agreed that the chemical can cause cancer and is toxic to the liver when ingested in drinking water.

The EPA set a national drinking water standard in 1991 for total chromium. The results of the toxicity assessment could influence a revision.

On the Radar

Supreme Court Returns
The nation’s high court began its October term with several high-profile, environment-adjacent cases in the docket.

The biggest is Loper Bright Enterprises v. Raimondo. At the surface, the case is a dispute over the Atlantic herring industry. But, writes Zachary Zahner of Marten Law, the implications are much broader, holding “potentially far-reaching consequences for environmental regulation.”

The heart of the case is how agencies, including the EPA, set rules. Current precedent is for courts to defer to an agency’s (reasonable) interpretation of an ambiguous law. It’s called the Chevron deference, after a 1984 landmark case. But Loper Bright could upend that, shifting power to the judiciary.

Affordable Manganese Treatment
The EPA will host a webinar on October 12 to outline new research funding for affordable treatment of manganese in small drinking water systems. Register 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