U.S. Supreme Court limits Clean Water Act jurisdiction The U.S. Supreme Court issued a 5-4 decision Thursday finding that the definition of “waters” in the Clean Water Act (CWA) refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection.” With this finding, the Supreme Court effectively limited the jurisdiction of the Clean Water Act. In this case, known as Sackett et ux. v. U.S. Environmental Protection Agency (EPA) et al, the scope of “Waters of the United States” (WOTUS) was in dispute. At issue was whether wetlands within the property of Michael and Chantell Sackett of Idaho constituted WOTUS, and thus whether CWA permitting was required. Although this does not address every question regarding identifying WOTUS, it does considerably limit the CWA’s applicability to wetlands, which will instead be protected under state and local regulations. Extensive or narrow jurisdiction for WOTUS has long been considered a tradeoff in the water sector, with more extensive jurisdiction being helpful to protection of sources of drinking water and a narrower jurisdiction being helpful to streamlining permitting, construction and maintenance of necessary water infrastructure. To actuate this ruling, EPA and the U.S. Army Corps of Engineers will need to yet again rewrite their regulations for the definition of Waters of the United States , which was most recently updated in early 2023 (and has recently undergone major changes several times). The exact implications of this ruling will not be known for some time, as challenges to the current rule continue and as EPA and the Corps work on revising the rules and implementing revised jurisdictional determinations. AWWA, NRWA file to intervene on cyber rule AWWA and the National Rural Water Association (NRWA) requested intervenor status on May 17 in a case challenging EPA’s new cybersecurity rule. Attorneys general (AGs) for the states of Missouri, Arkansas and Iowa filed a petition for review in the U.S. Court of Appeals for the Eighth Circuit challenging the legality of the EPA’s March 3 cybersecurity rule mandating that cybersecurity assessments be a part of sanitary surveys. The states asked, “the Court to hold unlawful and set-aside EPA’s cybersecurity rule requiring States to impose new and burdensome cybersecurity infrastructure mandates on Public Water Systems.” The motion to intervene filed by AWWA and NRWA supports the petition filed by the states, based on the substantive procedural steps the agency bypassed, and on EPA making the rule immediately effective. Bypassing the federal Administrative Procedure Act and other statutory obligations prevented opportunities for adequate public review and comment on the substance of the rule, the feasibility of implementation, and associated burdens imposed on states and public water systems. There are additional concerns related to recording-keeping requirements that would place sensitive vulnerability information in the public domain. In signaling its intention to intervene, on April 18 AWWA released a statement that said in part: “AWWA strongly supports efforts to strengthen cybersecurity in the water sector. In fact, AWWA is advocating for a regulatory model similar to that of the energy sector, with oversight from EPA. The Sanitary Survey Program, however, is not the right tool for the job. Many state primacy agencies lack both the resources and technical expertise to evaluate and address cybersecurity issues. Further, state laws do not protect sensitive information collected through sanitary surveys, and if publicly shared, that information could expose water system vulnerabilities.” AWWA and the U.S. Conference of Mayors submitted comments to EPA and the Office of Management and Budget (OMB) highlighting the agency’s failure to assess the burden imposed by the cybersecurity rule. OMB has not made a final decision on an EPA request to renew the Information Collection Request (ICR) for the Public Water System Supervisory Program, which includes implementation of the sanitary survey. An ICR renewal does not allow for the addition or inclusion of new information collection and recordkeeping requirements, such as those created by the cybersecurity rule for states and public water systems. In the absence of an OMB-approved ICR, state primacy agencies are not authorized to collect this information and public water systems are not required to respond to requests for information. Committee chair Carper announces he won’t run in 2024 U.S. Sen. Tom Carper, D-Del., chair of the Senate Committee on Environment and Public Works – which has jurisdiction over drinking water and wastewater policy – announced Tuesday that he will not seek re-election in 2024. His committee was a key driver for the $50 billion in water infrastructure funding in the Infrastructure Investment and Jobs Act of 2021 . Carper and his committee staff have been among the most accessible and communicative people on Capitol Hill to the water community since Carper became chair in February 2021. He has worked with Ranking Member Sen. Shelley Moore Capito, R-W. Va., to produce bipartisan legislation addressing water infrastructure and Army Corps of Engineers programs. The panel also led in reauthorizing the Water Infrastructure Finance and Innovation Act (WIFIA) program in 2021. It's probably too early to forecast a successor as committee chair, but some names to remember are Sens. Tammy Duckworth, D-Ill., and Jeff Merkley, D-Ore., if the Democrats keep the Senate. Sens. Sheldon Whitehouse, D-R.I., and Bernie Sanders, I-Vt., have more seniority on the committee, but they are currently chairs of other committees, budget and health. If the Republicans take the Senate in the next election, Sen. Shelley Moore Capito, R-W. Va., would likely become chair, but in the game of musical committee chairs that takes place after an election, you never know who ends up with which gavel. Carper , 76, is a former governor of Delaware and served five terms as the state’s sole member in the U.S. House of Representatives. He has served in the Senate more than 20 years. A former naval flight officer, he is the last Vietnam War veteran in the Senate. His Senate seat is considered a safe seat for the Democratic Party. AWWA, partners stress challenges with CCR rule AWWA and two key partners (the National League of Cities and the U.S. Conference of Mayors) submitted comments Monday on the proposed revised Consumer Confidence Rule addressing a range of topics, particularly EPA’s proposed ban on referring to water as safe. These comments , which included a separate survey analysis , also delve into topics such as challenges with the biannual delivery proposed requirements, flexibilities in electronic delivery, and others. AWWA staff and volunteers plan to continue engagement with EPA as the agency works on finalizing the rule. Contact Adam Carpenter in AWWA’s Washington, D.C., office with any questions. Finance officers offer advice on U.S. debt ceiling issues The Government Finance Officers Association (GFOA) is offering advice to state and local governments in case Congress and President Biden do not come to an agreement on how to address the debt ceiling by June 1. GFOA said such entities should take the following actions: Governments should review their investment portfolio and confirm investment holdings in U.S. Treasuries and the date these investments mature. This includes other products that may be invested in Treasuries, such as Local Government Investment Pools. Governments should also know if those investments are needed for certain obligations (such as a debt service payment). Governments should be positioned to have cash on hand to meet obligations in the event their entity does not receive principal or interest payments from their treasury investments as scheduled. In addition, GFOA said that if government entities have escrows coming due for refunded bonds and those funds are backed by U.S. Treasuries and/or State and Local Government Series securities, they should discuss this situation with their escrow agent, municipal advisor and financing team. More WIFIA loans close It’s been a busy spring for the WIFIA program at EPA, with the agency and partners closing several significant loans: City of Santa Cruz, Calif. - $128 million loan that will convert existing groundwater wells to aquifer storage and recovery wells and improve the city’s raw water conveyance pipeline. Santa Cruz will also upgrade treatment processes to help address current and emerging contaminants, as well as source water quality variability. The project will serve 98,000 customers and create 1,045 jobs. City of Wichita, Kan. - $191 million loan to reduce the city’s nutrient contribution to the Arkansas River and Mississippi River Basin, address local odor concerns, and help meet future regulatory requirements. The project will serve 500,000 customers and create 1,250 jobs. A public-private partnership between Poseidon Resources and San Diego County, Calif. - $170 million loan that will support construction of a new intake facility to support compliance with California’s new oceanwater intake regulations, better protect marine life, and help ensure the Carlsbad Desalination Plant’s continued operation. Additionally, Poseidon Resources will restore approximately 125 acres of coastal wetlands on the San Diego Bay. This loan will help serve 2.4 million people and create 1,800 jobs. City of Ventura, Calif. - $173 million in total loans to establish a new local, drought-resilient water supply, improve water quality and protect local habitats. This project will serve 110,000 people and create 1,100 jobs. EPA is offering online “ office hours ” for those wanting to learn more about WIFIA at 3-4 p.m. EDT June 14. One-on-one meetings with WIFIA staff are also available.