Author Archives: Dennis McCarthy

Waters of the US Definition Battle

Where, and possibly whether, the US Court system will deal with the EPA’s definition of “Waters of the US” was argued before the US Supreme Court this month.

The definition of Waters of the US is a contentious issue as the definition determines over which US waterways the EPA has jurisdiction. 

Several states’ Attorneys General have filed suit to block the Obama administration EPA’s definition which they contend had unlawfully expanded the scope of the waterways over which the EPA has jurisdiction.

The procedural question of which court and whether one court should have jurisdiction over this definition issue was argued before the US Supreme Court this month.

While this issue is winding its way through the court, the Trump administration acting through the EPA and Army Corp of Engineers has all but muted the issue.

We’ll monitor how this issue is resolved.

For background on the issue, please click on this link to read an article by Joel Beauvais of Latham & Watkins.

A Drop in the Bucket

The proposed Federal Budget issued recently includes a provision for roughly $300 million for desalination technology and better water use monitoring.

While these efforts are important and their inclusion in the budget admirable, this is too little to have a practical impact on the US’s water infrastructure need.

Anyone involved in the clean and waste water business recognizes this as window dressing.

Perhaps it will take more than just poisoning the people of Flint Michigan to focus attention on the US’s glaring need for water infrastructure.

Click here for a good summary from the magazine “Fast Company” of the goals of the budget section on water.

EPA’s Position on WOTUS On Hold Nationwide

In the ongoing battle over the scope of the EPA’s jurisdiction of waters of the US (WOTUS), the EPA’s enforcement of its current definition which includes small streams and wetlands has been stopped nationwide by a ruling of the Sixth US Circuit Court of Appeals .

In a prior ruling, the EPA’s definition was stopped in 12 states in which the states’ attorneys general had sued to stop enforcement (Click here). Additional states have joined the battle to block enforcement so that, in all, roughly half the states have blocked enforcement.

The recent ruling stopped enforcement nationwide as the court determines whether it has jurisdiction to consider lawsuits against the EPA’s definition. Click here for more from “The Guardian”.

Stay tuned.

Battle over “Waters of the US”

The Environmental Protection Agency (EPA) proposed a definition of waterways of the US which includes many smaller US waterways under its jurisdiction.

Not surprisingly, the EPA’s move has triggered resistance by groups opposed to the broad definition, with farmers leading the charge.

This website’s first article on this topic was dated April 16, 2014, click here.

Now, the latest development involves a case brought before a North Dakota Federal Judge by 12 states’ attorneys general who claimed that the EPA overstepped its powers by including the smaller US waterways in its jurisdiction.

On August 27th, the North Dakota Federal Judge ordered a delay in the EPA’s enforcement of the definition. This ruling was hailed as a major victory stopping the EPA in its tracks. Click here for a Press Release and an article by High Country News.

However, a week later, the same North Dakota Federal Judge revised the order to stop the EPA from enforcing its preferred definition of water of the US only in those 12 states whose states’ attorneys general had participated in the suit. Click here to read that press release.

The battle continues. We’ll keep you informed.

Physical and Cyber Attacks?

The frequency of cyber and physical attacks on our electrical infrastructure described in the linked USA Today article amazed me.

Who were the culprits, terrorists or disgruntled citizens?

The seeming nonchalance of the regulatory authorities, utilities and law enforcement disappoints me.

Does the water industry experience similar attacks? What is the response?

Congress Weighs In On EPA’s Jurisdiction Debate

Members of Senate and House committees met in an unusual joint session recently to address the topic of the EPA’s proposed definition of “waters of the United States” which dictates which waters are subject to EPA rules.

Those against the definition, including many farming interests, claim the definition amounts to an unwarranted expansion of EPA turf (click here).

In response, the EPA claims its proposed definition is no such expansion but only a clarification (click here).

The newly Republican-controlled Congress appears to be trying to influence the resolution while the regulations are in their comment period.

Based on the reported testimony from the EPA, however, there seems little willingness at the EPA to bow to Congress.

For background on the hearing, McClatchy Newspapers provides a helpful article (click here).

In an unrelated development, however, agricultural interests won their effort to get the EPA to withdraw a widely disliked interpretive rule that required farmers to comply with the USDA’s Natural Resource Conservation Service standards which had been voluntary guidelines until March of 2014.

Whether the USDA’s guidelines are voluntary or mandatory remains an issue under consideration in the EPA’s proposed definition discussed above.

Capital Press, the online magazine, provides useful background on this development (click here).



EPA Fires Back about Expansion Talk

The US Environmental Protection Agency (EPA) and US Army Corp of Engineers responded to criticism of its proposed definition of “waters of the United States” which determines whether a body of water or waterway is subject to Federal jurisdiction.

Articles and posts from law firms and mainstream media described the proposed definition as an expansion (click here for my prior post).

In an online response (click link here), the EPA sets out its position that its proposed definition is not an expansion of coverage but simply clarifies the existing definitions.

The interpretation of the definition will likely be battled in the courts where each of the EPA and its opponents have won and lost important cases (click here and here).

40% of US in Drought

These maps and the following article from the Washington Post drive home the point that large portions of the US are in drought conditions.

The following is a Washington Post Article – Click here.

“With a hot summer and wildfire season right around the corner, huge chunks of the western United States are experiencing record droughts. Parts of California, Nevada and Arizona are drier than they have been in 1,200 years, putting at risk millions of acres of farm and forest lands.

Every inch of five states — California, Nevada, Arizona, New Mexico and Nebraska — are experiencing some level of drought. Much of the northern Texas Panhandle is under extreme or exceptional drought warning, as is most of California and parts of northern Nevada. A weekly snapshot of drought conditions shows 21 percent of the country is experiencing severe drought or worse; all told, 40.9 percent of the country is under some kind of drought watch or warning.

Here’s the national map, produced weekly by a partnership between the National Drought Mitigation Center at the University of Nebraska-Lincoln, the Agriculture Department and the National Oceanic and Atmospheric Administration:

droughtHere’s the Western United States, where things are particularly bad:


Nebraska and Kansas are experiencing serious drought conditions:


And Texas and Oklahoma are dry as a bone:


California’s plight is particularly bad. Two-thirds of the state are experiencing extreme or exceptional drought. Not a single acre of the state’s land has a normal amount of precipitation.”



EPA Proposes Broad Definition of “Waters of the US”

Responding to court rulings, the US Environmental Protection Agency and the US Army Corps of Engineers has proposed a clarifying definition of “waters of the United States” which determines whether a body of water or waterway is subject to Federal jurisdiction.

Jeffer, Mangels, Butler & Mitchell, the law firm, provided a helpful article on this development which concludes, “One key element of the proposed rule would automatically subject nearly every natural and artificial stream and wetland that is adjacent to or near a traditional navigable water, interstate water, or territorial sea to federal jurisdiction.”

Click here to read the Jeffer Mangels’ article on JDSupra, the online legal magazine.

Click here to read a background article in the LA Times.

US Groundwater Levels Declining

MapGrndwtrDeplIt comes as no surprise that a Columbia University study reveals that US groundwater levels are declining.  This trend, which shows no evidence of slowing, presents a substantial opportunity for those who respond with water treatment solutions.


“Groundwater is increasingly relied on as a critical resource for meeting everyday water demands and buffering variability in surface water supply.  Overall, the US is extracting groundwater at unsustainable rates, causing long-term groundwater level declines and loss of groundwater storage.”