Federal Water Tap, July 1: Supreme Court Weakens Agency Power to Interpret Vague Laws

The Rundown

• High court strikes down longstanding deference to agency expertise in policymaking.
• Army Corps project to reduce flooding on Louisiana coast needs to be redesigned due to bigger seas, storms.
• House proposal would slash EPA budget by 20 percent and cut drinking water funding while continuing earmarks and changing policy.
• House committee advances Army Corps water infrastructure
• USDA wants to know how to quantify “climate-smart” biofuels.
• EPA webinar will focus on supplying clean water in emergency situations.

And lastly, USAID updates its progress on empowering local partners.

“Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment.” – Chief Justice John Roberts, writing the majority opinion in Loper Bright Enterprises v. Raimondo, a decision that has ended court deference to agency expertise, a precedent known as the Chevron deference because of a 1984 court case.

By the Number

$9.5 Million: Funding available from the EPA for research into wastewater effluent returned to streams and the human health risk from reuse of that water for drinking. Applications are due August 21.

News Briefs

Chevron Gone
For four decades, since the 1984 Chevron decision, the Supreme Court has held that the courts should defer to agency experts when making rules to implement the intentions of ambiguous federal law. The ruling made sense: what do judges know about aerosols transport or cosmetics toxicology?

But no longer.

The court, in a 6-3 ruling along party lines, voted to jettison the Chevron doctrine, putting more authority into the hands of judges to influence policy. Courts have the authority to resolve ambiguity, Chief Justice Roberts wrote in the majority opinion, not necessarily agencies.

The ruling does not appear to represent a complete unraveling of precedent. Roberts wrote that “the Court does not call into question prior cases that relied on the Chevron framework.”

Looking ahead, the decision is another means for judges to intervene in policymaking, argues Ann Carlson of the UCLA School of Law.

“In short, the Loper decision will be just one more tool hostile judges can use to undermine the administrative state and regulations and rule makings with which they disagree,” Carlson writes.

Carlson sees a bigger threat in the major questions doctrine, which, she argues, allows the courts broader power to reject agency authority.

FY 2025 Budget
A House Appropriations subcommittee approved a fiscal year 2025 budget bill that cuts EPA funding by 20 percent and establishes new policy for land and water.

“We have taken meaningful steps to reduce spending on lower-priority programs and direct funding where it is needed most – Indian Country and wildland fire management,” said Rep. Tom Cole (R-OK), chair of the House Appropriations Committee, in a statement.

Even popular water programs are targeted. The Clean Water State Revolving Fund would be cut nearly 27 percent, to $1.2 billion. The Drinking Water State Revolving Fund would be cut 21 percent, to $884 million.

The revolving funds are the main federal water infrastructure investment vehicle. But they will be eroded by earmarks. About half the revolving fund allocation in FY25 is set aside for particular infrastructure projects requested by representatives.

Water industry groups have called on Congress to stop taking water infrastructure earmarks out of the revolving funds because the practice endangers the long-term stability of the funds.

As for the new policy, the bill would reinstate hardrock mining leases in Minnesota’s Superior National Forest. Democratic and Republican administrations since the Obama years have prohibited and then permitted and then once again prohibited mining in this region near the Boundary Waters Canoe Area Wilderness.

The budget bill also minimizes climate change in policymaking. It prohibits federal agencies from putting a price on the social damage from carbon emissions when doing cost-benefit analysis for new regulations.

WRDA 2024
The House Transportation and Infrastructure Committee advanced a key piece of legislation that authorizes Army Corps of Engineers water infrastructure projects.

The Water Resources Development Act of 2024 includes 124 new feasibility studies for local flood-control and ecosystem restoration projects. Fourteen are in California, and 11 in New York. One study will be groundwater recharge in the Ogallala Aquifer.

The bill also sets policy goals such as reusing 70 percent of the weight of “suitable” dredged material from project construction or operation. And adjusting the operating manuals for Corps reservoirs to reflect weather forecasts so that they are more effective at storing and releasing water.

The Corps would also be responsible for a national inventory of low-head dams – those taller than 6 inches but shorter than 25 feet. There are about 45,000 dams taller than 25 feet in the country.

Studies and Reports

Louisiana Flood-Risk Reduction Project Needs to Be Redesigned
Because of bigger seas, stronger storm surges, and sinking lands, the Army Corps of Engineers is redesigning a multibillion-dollar flood-risk reduction project on the Louisiana coast.

The Corps will develop a supplemental environmental impact statement to analyze options for the Morganza to the Gulf project.

The project, located in two parishes 60 miles southwest of New Orleans, consists of 98 miles of levees, along with canal locks and flood gates. The goal is to protect against the flood level from a storm surge that has a one-percent chance of happening each year.

Submit comments on the scope of the assessment by July 22 to mvnenvironmental@usace.army.mil.

USAID Progress on Local Empowerment
The U.S. Agency for International Development is changing the way it carries out foreign aid. The new mandate is for more money and decision-making to be held by local authorities.

The agency outlined the status of these changes through 2023 in a progress report.

The big goal is to direct a quarter of funding to local partners by 2025. The trend line is gradually improving, but far from the finish line. The figure was just under 10 percent last year.

The health sector is farther along than others, with 20 percent of funding going to local partners.

On the Radar

Clean Water During Emergencies Webinar
The EPA will host a webinar on July 10 to discuss a water treatment system it helped foster for use in emergency response.

The tech is called “water on wheels,” or WOW Cart, and is described as a “modular, mobile water treatment system.”

Two people will present: an EPA researcher and a representative from a Kentucky medical services organization that is incorporating the WOW Cart into its emergency response plans.

Register here.

Quantifying ‘Climate-Smart’
The federal government is dangling billions of dollars in financial incentives for farmers who adopt practices that emit fewer greenhouse gases. But how to tell if they work?

The U.S. Department of Agriculture is seeking public input for ways it can verify the “climate-smart” bona fides of agricultural products that go into biofuels.

The department could use the information to develop a voluntary standard for greenhouse gas emissions of various crop-growing practices.

The department is also curious about water use, since irrigation requires energy to lift and move water. Should it consider practices that conserve water in such a standard, since they would also reduce energy use?

Submit comments by July 25 via www.regulations.gov using docket number USDA-2024-0003.

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