Clean Water Act & WOTUS

 

Supreme Court To Settle Major Groundwater Pollution Dispute. According to Politico, “The Supreme Court today agreed to review whether pollution that travels via groundwater is subject to the Clean Water Act. At least two appellate courts have concluded that the federal law applies to pollution from point sources that first goes through groundwater and ultimately ends up in lakes or streams. But the 6th Circuit has ruled differently, concluding in a coal ash lawsuit against the Tennessee Valley Authority that such pollution is not subject to CWA liability. That circuit split helped entice the justices to wade into the matter. The case accepted today is County of Maui, Hawaii v. Hawaii Wildlife Fund, 18-260, in which the 9th Circuit Court of Appeals found that wastewater injected underground carried pollution into the Pacific Ocean and was covered by the law. A parallel appeal before the Supreme Court — Kinder Morgan Energy Partners L.P. v. Upstate Forever, 18-268, in which the 4th Circuit said the pipeline company broke the law because a leak traveled through groundwater to a protected stream — is likely to remain pending until the Supreme Court rules in this case and settles the water law question. EPA last month said it plans to take administrative action to settle the question of the CWA’s authority over groundwater-carried pollution. WHAT’S NEXT: The Supreme Court is likely to hear the case this fall, with a ruling coming sometime next winter.” [Politico, 2/17/19 (=)]

 

Supreme Court To Rule On Contaminated Groundwater Under Clean Water Act. According to USA Today, “The Supreme Court agreed Tuesday to decide if contamination of groundwater that seeps into rivers, lakes and oceans violates the Clean Water Act. Dumping pollutants directly into navigable bodies of water is prohibited by the 47-year-old law, but it is less clear about indirect sources. Last year, the U.S. Court of Appeals for the Ninth Circuit ruled that Hawaii’s Maui County violated the law by injecting treated sewage from a wastewater treatment plant into the groundwater, some of which enters the Pacific Ocean. The U.S. Court of Appeals for the Fourth Circuit came to a similar conclusion last year in a South Carolina case involving an underground pipeline that burst in 2014, spilling hundreds of thousands of gallons of gasoline. Some of the fuel seeped into nearby rivers, lakes, and wetlands, including the Savannah River. However, the U.S. Court of Appeals for the Sixth Circuit did not take the same view in a Kentucky case, in which pollutants from coal ash retention ponds seeped into groundwater that fed local waterways. The court said pollutants only added directly to navigable bodies of water were regulated under the law. The Supreme Court’s decision to hear the case comes about two months after the Trump administration announced it was rolling back an Obama-era regulation that has become a rallying cry for farmers and property-rights activists opposed to federal overreach.” [USA Today, 2/18/19 (=)]

 

Supreme Court Will Hear Clean Water Case Next Term. According to KYMA, “The Supreme Court on Tuesday agreed to take up a case next term that relates to the Clean Water Act and the Environmental Protection Authority’s authority to regulate pollutants that find their way into navigable water. The EPA and courts have not issued clear guidance on this. Depending upon how the court rules, it could have big implications that could expand the government’s ability to regulate. The law protects navigable waters -- rivers, oceans and lakes -- from pollution. The question presented is whether it also covers pollution that has traveled some distance from a pipe or well through groundwater and made its way into navigable water. ‘Although this case raises a technical question about the Clean Water Act, it has much broader implications for the scope of the Environmental Protection Agency’s power to regulate pollutants that cannot be traced to a specific source,’ said Steve Vladeck, a CNN contributor and professor at the University of Texas School of Law.” [KYMA, 2/19/19 (=)]

 

Clean Water Act Case Could Have Sweeping Impacts. According to E&E News, “The Supreme Court is taking up another far-reaching debate over the scope of the Clean Water Act. The justices this morning agreed to hear County of Maui, Hawaii v. Hawai’i Wildlife Fund, a case involving whether the law covers pollution that moves through groundwater before reaching a federal waterway. Environmental groups, states, industry and conservatives are watching the case closely, as its outcome could clarify or narrow EPA’s historical interpretation of the types of pollution discharges covered by the Clean Water Act. ‘This is the most significant environmental law case in the last few years,’ said Beveridge & Diamond PC attorney John Cruden, former head of the Justice Department’s environment division. The Maui litigation involves a municipal wastewater treatment facility on the Hawaiian island. Environmentalists sued the county after alleging a link between the wastewater injection wells and pollution that seeped through groundwater and ended up in the Pacific Ocean. The 9th U.S. Circuit Court of Appeals sided with them, endorsing the so-called conduit theory, and found that the county should have had a Clean Water Act permit. The landmark environmental statute governs the discharge of a pollutant to ‘waters of the United States,’ or WOTUS. While the Supreme Court and EPA have spent years wrestling with the definition of WOTUS, the new case focuses on a different element of the law’s reach: What counts as an addition of a pollutant to those waters? Does the discharge have to be directly into a federally regulated waterway, or does it just have to end up there?” [E&E News, 2/19/19 (=)]

 

Broad EPA Water Trading Guide Seen Boosting New Programs’ Prospects. According to Inside EPA, “EPA’s reworked guidance for Clean Water Act (CWA) water quality trading programs is drawing enthusiastic support from the wastewater industry and others that have long pushed for broader adoption of such programs, while environmentalists are reacting more cautiously but still welcoming certain elements of the update. ‘They took pains to say, ‘we meant this to be easier, and we meant this to be done more often.’ They covered some really important issues, and in general touched on most of the things that have bedeviled or slowed these projects across the country,’ says a source with the Environmental Policy Innovation Center (EPIC), a private group that aims to bolster ‘creative policies’ that support infrastructure development and water quality, among other outcomes. Similarly, an official at the National Association of Clean Water Agencies (NACWA), which represents both wastewater utilities and many municipal stormwater authorities, said the agency’s new policy is a sign that officials at the water office ‘are clearly committed to see market-based programs advance.’ But a source with the environmentalist group Chesapeake Bay Foundation (CBF) says some of the principles EPA is outlining in its Feb. 6 guidance ‘would not fly in the world we work with,’ such as one that encourages local authorities to let facilities ‘bank’ compliance credits over multiple years.” [Inside EPA, 2/19/19 (=)]

 

FOIA Suit Targets Claim Of EPA Region 5 ‘Squelching’ CWA Permit Critics. According to Inside EPA, “Public Employees for Environmental Responsibility (PEER), representing many federal employees, is pursuing a Freedom of Information Act (FOIA) suit seeking documents on whether EPA Region 5 ‘squelched’ staff criticism of a mine’s Clean Water Act (CWA) permit, fearing other regions might also be suppressing adverse staff comments. ‘EPA employees from other regions report similar constraints to PEER,’ the group says in the statement announcing the lawsuit filed Feb. 19. ‘Many cite an October 30, 2018 memo issued by Acting Administrator Andrew Wheeler directing EPA regional offices to exhibit ‘general deference to the states.’ The FOIA suit filed by PEER and the Minnesota environment group WaterLegacy urges the U.S. District Court for the District of Columbia to order EPA to release Region 5 staff’s written comments on the Minnesota Pollution Control Agency’s (MPCA) CWA National Permit Discharge Elimination (NPDES) permit for the PolyMet copper-nickel mine north of Lake Superior. The lawsuit suggests that Region 5 staff withheld critical written comments on the mine permit due to political pressure from the Trump administration, and instead read their criticism to state regulators over the phone, preventing their written remarks from appearing in the public record of the mine permitting process.” [Inside EPA, 2/19/19 (=)]

 

Op-Ed: Clean Water Rule Protects One Of Montana's Best Gifts - Its Streams. According to Missoulian, “The Smith River permit lottery opened Jan. 2! The day the permit results are posted is a grown-up’s version of Christmas morning. Last year, over 10,000 people cast their lot to float Montana’s Smith River. I’m lucky to say I’ve been on the Nice list more than I deserve. And having floated it late last summer, I am as motivated as ever to get back to the Smith. Unfortunately, I’ll be thinking about the Smith River and most of Montana’s other amazing waters in more dire terms as we exchange our annual calendars and greet 2019. The Environmental Protection Agency and Army Corps of Engineers just released a plan to roll back clean water protections across the country, including the lifting of Clean Water Act protection for approximately half of Montana’s stream miles and many of our wetlands. The rollback goes way beyond rolling back Obama-era rules. It limits the Clean Water Act’s application to only the biggest of waterways. We all know big navigable rivers are not the only ones that matter. Montanans live and recreate in the small headwaters where this rollback will hit the hardest. The little creeks flow into the big rivers. This deregulation is an unprecedented attack not only on clean water but our recreation economy. This rule will affect our streams, rivers, fisheries and fishing. The revisions will allow pollution and development to damage many of our headwater streams by eliminating all federal permitting.” [Missoulian, 2/20/19 (+)]

 

Op-Ed: WOTUS Rollback: ‘No Wetlands, No Seafood’. According to Coastal Review, “We repeat past mistakes when we ignore history. That is exactly what the U.S. Environmental Protection Agency is doing as it proposes to dramatically roll back safeguards for wetlands all over eastern North Carolina. Long before we were born, unregulated wetland destruction did staggering damage to our coast. In the 1970s, large corporations ditched and drained more than 200,000 acres of wetlands near estuaries. Fish and shellfish suffered from the resulting runoff and pollution. In 1976, 3,000 commercial fishermen and residents signed a petition that pleaded with state officials to do something about the runoff that plagued our estuaries and threatened their ability to make a living fishing. Many of these folks were from Hyde County, and they saw firsthand vast areas of wetlands converted to ‘superfarms’ and other land uses. Trillions of gallons of drainage flowed directly into salty estuaries. This runoff made these essential fish nurseries much less productive for shrimp, oysters, flounder, trout and other commercially and recreationally important marine life. In response to this growing controversy, federal and state lawmakers and agencies finally stopped many of these wetland conversions. They recognized that it was necessary to protect wetlands to maintain water quality and fisheries—common sense that was also a legal obligation under the federal Clean Water Act and state environmental laws.” [Coastal Review, 2/20/19 (+)]

 

PFAS

 

Carper Drops Objection On Wheeler's Nomination After EPA's Pledge On PFAS MCL. According to Inside EPA, “A top Senate Democrat is dropping one of several objections he had threatened to raise when the upper chamber considers Andrew Wheeler’s nomination to be EPA chief later this month after the agency renewed its pledge that it ‘intends’ to develop an enforceable drinking water standard for two of the most common perfluorinated substances. ‘I ask my Republican colleagues to believe me when I say that I’m not interested in slowing down Mr. Wheeler’s nomination process for the sake of making a political statement or sticking it to the Administration,’ Sen. Tom Carper (D-DE), the top Democrat on the Senate environment committee, said in a Feb. 19 statement. ‘I’m not interested in a delay for delay’s sake. With Mr. Wheeler’s nomination, we have a rare opportunity to extract meaningful policy concessions from EPA. This new commitment is proof of that winning strategy,’ Carper said. While Carper’s statement suggests he will not raise objections on per- and polyfluoroalkyl substances (PFAS) issues when Wheeler’s nomination comes to the floor later this month for a procedural vote, he continues to raise concerns on several other issues that he had previously urged EPA to address.” [Inside EPA, 2/19/19 (=)]

 

Carper Cheers 'Firm Commitment' To Set PFAS Standard. According to E&E News, “EPA plans to set a legal limit for two toxic chemicals found in drinking water, Assistant Administrator David Ross recently assured a bipartisan group of senators. Sen. Tom Carper (D-Del.) cheered Ross’ words as a clear commitment from EPA to set a maximum contaminant level for PFOA and PFOS, which are two types of per- and polyfluoroalkyl substances, or PFAS. ‘Again and again, I’ve asked acting Administrator [Andrew] Wheeler to make a clear and firm commitment that EPA will set a drinking water standard, and it’s about time he showed some urgency on this important issue,’ Carper said. Last week, EPA released its action plan for PFAS, which promised a regulatory proposal on the two chemicals by the end of the year (Greenwire, Feb. 14). Wheeler said he has ‘every intention’ of proposing a maximum contaminant level for the chemicals, but critics argued that the agency was delaying what would already be a lengthy regulatory process. Ross reiterated Wheeler’s aim in a letter dated Friday that describes the action plan. The letter was in response to one from 20 senators led by Sens. Jeanne Shaheen (D-N.H.) and Shelley Moore Capito (R-W.Va.) that demanded the agency set federal standards for the chemicals.” [E&E News, 2/19/19 (=)]

 

Coal Ash

 

Santee Cooper Accidentally Pumped Mud From Coal Ash Pit Into Waccamaw River. According to The Post and Courier, “Santee Cooper officials found the line of sludge in the morning. It was at the site of the former coal-fired Grainger Generating Station in Conway, which still has tens of thousands of tons of toxic ash in ponds on site. Maintaining the ponds involves a pump system that empties water into the adjacent Waccamaw River, in part because drier ash is easier to excavate and haul away. But when employees checked one pump the morning of Jan. 30, spokeswoman Mollie Gore said, they found that it had sucked out all the water in a section of pond No. 2 and started dredging up the sediment underneath. That sediment, Gore said, was likely a mix of ash and soil, and about a dumpster’s worth ended up in the river. Typically, employees check the pumps in a rotation at night, but for some reason, that piece of machinery was missed, she said. In the morning, what the utility found was a line of sludge on the wall of the dike separating the pond from the Waccamaw. ‘Sometime overnight, it was during the night, the pump was not monitored and the area that it was pumping was being dewatered,’ Gore said. The state-owned utility has since increased the frequency of its nighttime monitoring, and subsequent tests of the river did not show significant presences of toxic materials in coal ash, such as arsenic, lead and mercury. It also installed stone under the pump so it wouldn’t be able to reach the mud underneath if the water levels again get too low.” [The Post and Courier, 2/19/19 (=)]

 

Mud From Coal Ash Pit Accidentally Dumped Into South Carolina River. According to The Hill, “South Carolina’s state-run utility company said Tuesday that mud from a coal ash pit was accidentally dumped into a local river, the Post and Courier reported. Santee Cooper officials reportedly found a malfunctioning pump at a former coal-fired power plant, the Grainger Generating Station, in Conway, S.C. Company spokesperson Mollie Gore told the Post and Courier that employees found a pump had sucked all the water out of a pond and was dredging up sediment on Jan. 30. That sediment, a mix of coal ash and soil, ended up in the nearby Waccamaw River. ‘Sometime overnight, it was during the night, the pump was not monitored and the area that it was pumping was being dewatered,’ Gore said. Coal ash is a waste product from burning coal that contains harmful heavy metals. The river did not show significant levels of the toxic materials found in coal ash, such as arsenic, lead and mercury, according to Gore. Gore said that since the incident Santee Cooper has increased its nighttime monitoring and installed stone under the water its pumps draw from.” [The Hill, 2/19/19 (=)]

 

Misc. Waterways

 

Concerned Citizens Question Water Quality In Adrian. According to WSYM, “An odor and odd taste in the water began to ruffle feathers in Adrian late last year. The public began asking questions, and now the city is teaming up with an engineering firm to figure out what’s leading to the taste/odor issues. While the city believes the water is safe, at least one group of concerned citizens is raising red flags — asking for more testing. ‘I don’t allow them to drink it,’ said Brittany Dulbs, when asked how she deals with the tap water in her home and her children. ‘I won’t cook with it either. The only thing we do is wash dishes, bathe and wash clothes.’ Dulbs said the taste was her first concern, noting that city water tasted like dirt the last time she drank it several months ago. Since then she teamed up with others and started collecting informal surveys online through social media and compiling a list of people who’ve had concerns with the water. She believes that there’s a bigger concern than just taste and odor. Two rounds of testing by Dulbs’ group turned up multiple samples where DNA markers for cyanobacteria was present. ‘It’s scary,’ said Dulbs. ‘It’s scary when you start to look at the science of it.’ Cyanobacteria has been in the news more and more lately. It’s also known as blue green algae, the same green sludge that covers Lake Erie during the summer in recent years. Back in 2014 a threat of cyanobacteria led to the city of Toledo to declare an emergency causing them to shut off water intakes due to toxicity.” [WSYM, 2/20/19 (=)]

 

 

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