Clean Water Act & WOTUS

 

N.M. Leaving Suit Against Obama WOTUS Rule. According to E&E News, “New Mexico is withdrawing from a lawsuit against a 2015 Obama-era regulation clarifying which wetlands and waterways are protected by the Clean Water Act. The state was among the first to sue the Obama administration over its Clean Water Rule in August 2015. Now, the New Mexico Environment Department says that stance is ‘inconsistent’ with its position on the Trump administration’s Waters of the U.S., or WOTUS, rule that seeks to limit which wetlands and streams are protected by the Clean Water Act. The department has filed a motion to withdraw from the lawsuit in the District of North Dakota, which it filed with 12 other states. The Trump rule would erase protections for ephemeral streams that only flow after rainfall, and wetlands without direct surface water connections to waterways. The rule is expected to particularly affect states like New Mexico in the arid West. While at least 18 percent of streams nationwide are considered ephemeral by the U.S. Geological Survey, the percentage of ephemeral streams in the arid West is estimated to be at least 35 percent (Greenwire, Dec. 11, 2018).” [E&E News, 3/22/19 (=)]

 

New Mexico Environment Department Seeks To Withdraw From 2015 Waters Of The U.S. Rule Lawsuit. According to Los Alamos Daily Post, “The New Mexico Environment Department (NMED) filed a motion Thursday in Federal Court in North Dakota to withdraw from litigation challenging the 2015 Waters of the U.S. (WOTUS) Rule. NMED believes the positions taken in the 2015 lawsuit are inconsistent with its current position on the proposed rule issued by the U.S. Environment Protection Agency (EPA) in February, in which the EPA seeks to revise the definition of a ‘Water of the United States.’ ‘New Mexicans understand the value of water as a natural and cultural resource,’ said Environment Department Secretary James Kenney. ‘Ephemeral streams, wetlands and groundwater are equally as important as the Rio Grande River. All of our state’s precious water resources must be afforded robust legal protections.’” [Los Alamos Daily Post, 3/25/19 (=)]

 

Green Groups Sue EPA Over Lack Of Spill Regs. According to E&E News, “The Natural Resources Defense Council and other environmental groups sued EPA yesterday over its failure to issue regulations on chemical facilities’ plans for spills of hazardous substances. In 1990, the amended Clean Water Act required EPA to issue regulations by August 1992 that would force the most dangerous chemical facilities to plan for worst-case scenario spills of hazardous substances and work to prevent those spills from happening, the complaint states, and EPA hasn’t yet issued those regulations. Chemical facility workers and the people who live closest to these facilities face the highest risk, with communities that are mostly low-income and made up of people of color bearing a disproportionate burden, the suit states. ‘For over 25 years, EPA has abdicated its responsibility under the law to protect communities that live near aboveground storage tanks brimming with harmful chemicals. These communities live with the constant risk of experiencing catastrophic, toxic chemical spills in their own backyards. This lawsuit seeks to put critical protections in place once and for all,’ NRDC attorney Kaitlin Morrison said in a statement. The complaint cites spills of chemicals such as benzene and butadiene during Hurricane Harvey that led to hospitalization of emergency responders as examples of the need to prevent and address these types of incidents.” [E&E News, 3/22/19 (=)]

 

As Trump Tries To Roll Back Clean Water Rules, California Seeks Stronger Protections. According to San Francisco Chronicle, “While California regulators have long deferred to the Clean Water Act to decide what water bodies to protect, the constant rejiggering of the federal law prompted them to begin drafting their own watershed policy. The State Water Board started the effort more than 10 years ago with the hope of ensuring adequate oversight as well as being more consistent in its enforcement. Now, supporters of the state plan see the policy as a way to insulate California from the Trump administration’s rollbacks. The State Water Board is scheduled to take up the matter April 2. ‘Once the state gets its act together on this, the policy will be less capricious and more predictable than the Clean Water Act,’ said Carol Witham, a botanist who runs an environmental consulting firm in Sacramento. ‘And yes, it will be more restrictive.’ The state plan reaches farther across the watershed than the federal statute. By broadening the legal definition of a wetland, for example, it would protect areas that don’t necessarily have vegetation, such as playas. The plan also sets up a new system for reviewing and permitting development along smaller waterways, ensuring oversight of seasonal and rain-dependent streams and ponds.” [San Francisco Chronicle, 3/25/19 (=)]

 

California Wastewater Utilities Appeal Suit Over CWA Permit Test Method. According to Inside EPA, “California wastewater groups will ask the U.S. Court of Appeals for the 9th Circuit to block the state from using a contentious Clean Water Act (CWA) test method to measure compliance with facilities’ discharge permits, potentially teeing up a precedential decision on utilities’ claim that the method falls short of regulatory standards. The plaintiffs in Southern California Alliance Of Publicly Owned Treatment Works (SCAP), et al., v. EPA filed a notice of appeal on March 21, signaling that they will seek to overturn a decision by a federal district judge that rejected their challenge to use of the test of significant toxicity (TST) as untimely. If the 9th Circuit lets SCAP’s case go forward it would lead to a hearing on the merits for utilities opposed to the TST, which they say is unreliable, prone to false positives, and has not gone through the procedures needed to certify a test for assessing compliance of National Pollutant Discharge Elimination System (NPDES) permits under EPA’s rules.” [Inside EPA, 3/22/19 (=)]

 

PFAS

 

Bipartisan Letter Probes Interagency PFAS Fight. According to Politico, “Bipartisan leaders of the Senate’s top oversight committee are probing the White House about the fight between the Defense Department, EPA and the CDC that has stalled the release of cleanup guidelines for a pair of toxic chemicals in drinking water sources. In a letter to White House Office of Management and Budget Director Mick Mulvaney sent today, Senate Senate Homeland Security and Governmental Affairs Chairman Ron Johnson (R-Wisc.) and Ranking Member Gary Peters (D-Mich.) are seeking information about the interagency review of EPA groundwater cleanup guidance for the chemicals PFOA and PFOS. The guidance, which has been stalled at the White House since August, would provide a starting point for developing cleanup plans for contaminated sites, including 126 military sites where the Pentagon has said groundwater or drinking water has been contaminated with PFOA or PFOS from firefighting foam. ‘Given the significance of this issue, it is essential that OIRA resolve any remaining interagency conflicts and concludes its review as soon as possible,’ the senators wrote. POLITICO reported in January that EPA proposed a cleanup standard of 70 parts per trillion, combined, for PFOA and PFOS — the same level EPA has advised is a safe limit in drinking water. But Sen. Tom Carper (D-Del.) said last week that the Defense Department is pushing for that to be raised to 400 parts per trillion.” [Politico, 3/22/19 (=)]

 

Could PFAS Concerns Sway The Democratic Presidential Contest?. According to E&E News, “PFAS is providing a platform for hopefuls to slam President Trump’s environmental agenda as they make their case to voters about who is the best person to take on Trump next year. And while New Hampshire, whose primary comes just after the Iowa caucuses, isn’t the only state to suffer from PFAS issues, it’s helping candidates connect more closely with voters in the Granite State. Sen. Kirsten Gillibrand (D-N.Y.) has taken the mantle on PFAS, going so far as to call for a complete ban on the family of thousands of man-made chemicals that are used in applications like firefighting foams and nonstick cookware. Environmental advocates call them ‘forever chemicals’ because they can last years before breaking down. ‘I think we have to ban the entire class of chemicals because they will be determined ... as carcinogens,’ Gillibrand said at a March 15 campaign event in Portsmouth, N.H., that was structured as a forum on water contamination problems, according to Foster’s Daily Democrat, a Dover, N.H., newspaper.” [E&E News, 3/22/19 (=)]

 

Air Force Seeks To Preserve Federal Test Case On State's PFAS Enforcement. According to Inside EPA, “The Air Force is urging a federal judge to reject calls from New Mexico officials to remove its challenge to a waste permit governing per- and polyfluoroalkyl substances (PFAS) to a state court, an effort aimed at preserving a suit that could become a test case on federal agencies’ attempts to limit state regulation of PFAS in the absence of EPA standards. In a March 14 brief filed in the U.S. District Court for the District of New Mexico, the federal government in United States v. New Mexico Environment Department (NMED) says the federal district court has jurisdiction to oversee the litigation and should not refrain from exercising that jurisdiction. It charges that legal doctrines the state had cited to justify its removal motion governing deferrals to state court do not apply in this case. In the litigation, the Air Force is challenging the renewal of a hazardous waste disposal permit that NMED issued to Cannon Air Force Base, located in Curry County, NM, in December. While the Air Force is challenging the definition of hazardous waste in that permit, it does not specify how the definition exceeds the Resource Conservation & Recovery Act’s (RCRA) sovereign immunity waiver.” [Inside EPA, 3/22/19 (=)]

 

Toxic Algae

 

Op-Ed: Brent Batten: Fertilizer Ban Sounds Good But Does It Improve Water Quality? According to Naples Daily News, “When fertilizer carried by rain runoff into canals and streams seems to be feeding red tide and toxic algae, the solution seems simple. Ban the fertilizers carried by the rain. In other words, don’t put fertilizers containing nitrogen and phosphorous on the ground during Florida’s highly predictable rainy season. But simple doesn’t always equate to correct, and there’s serious debate about whether such a ban is effective. At the very least, a ban would keep the nutrients out of the waterways for part of the year. That must be a good thing, right? The word counterintuitive keeps popping up. Last week, a majority of Naples City Council members agreed to reinstate a rainy season ban on lawn fertilization. They did so even though their natural resources manager, Stephanie Molloy, told them science doesn’t support it.” [Naples Daily News, 3/25/19 (-)]

 

Misc. Waterways

 

Greens Challenge Reclamation Deal With Utah. According to E&E News, “Environmentalists yesterday sued the Trump administration over a deal with Utah to take more water from the Flaming Gorge Dam out of the Colorado River’s main tributary, contending the environmental review failed to take climate change and droughts into account. The Bureau of Reclamation and Utah announced an agreement this week that would allow Utah to take up to 72,600 acre-feet of water released from the dam near the Utah-Wyoming border. In exchange, Utah gave up water rights on the Green River and its tributaries farther downstream from the dam. In their lawsuit, the environmental groups challenged Reclamation’s finding that the agreement would produce ‘no significant impact’ in its National Environmental Policy Act review. In particular, they charge that the NEPA review did not do a full accounting of the amount of water in the river system. ‘This review was appalling,’ said Robin Silver, a co-founder of the Center for Biological Diversity. ‘Drought, climate change and overallocation are sucking the Colorado River Basin dry right in front of our eyes. But officials ignored declining river flows, pretended this new Green River contract stands alone and ignored multiple proposed water projects.’” [E&E News, 3/22/19 (=)]

 

Committees To Tackle Controversial Drought Pact. According to E&E News, “House and Senate panels will meet this week to examine the recently signed drought contingency plan for the Colorado River. The Bureau of Reclamation announced last week that the river’s seven basin states had reached agreement on the DCP, which aims to make the river, which provides water for 40 million people, more resilient in the face of climate change and droughts. But for the DCP to be finalized, Congress must pass legislation authorizing its implementation. Arizona — one of the last states to sign on — made its participation contingent on the legislation. The agreement and proposed legislation have been sharply criticized by the river’s largest single user, Southern California’s Imperial Irrigation District. The Imperial Irrigation District refused to sign on to the DCP, seeking $200 million in federal funding for environmental mitigation at the Salton Sea, an ongoing environmental and public health disaster (Greenwire, March 20).” [E&E News, 3/25/19 (=)]

 

Op-Ed: Congress: Approve The Colorado River Plan As A Model For Climate Resilience. According to The Hill, “After years of hard work and difficult negotiations, a historic seven-state agreement to conserve Colorado River water is facing its last hurdle: Congress. In the coming days, Congress will begin committee hearings on unusually concise, 139-word legislation that would allow the secretary of the interior to implement the Colorado River Drought Contingency Plan, or DCP. The DCP may sound like three unimportant letters to members of Congress outside the seven states that rely on the Colorado River for their water supplies: California, Arizona, New Mexico, Nevada, Colorado, Wyoming and Utah. But this agreement marks a watershed moment in building our country’s resilience to climate change. The DCP embodies two key principles of building resilience — collaboration and tradeoffs — that apply not only in the West but across our country. Speedy congressional approval is essential to ensuring this model is implemented.” [The Hill, 3/23/19 (+)]

 

Op-Ed: Americans Left Behind In The Global Fight For Clean Water. According to The Hill, “March 22 marks another World Water Day, and it seems like every country has something to celebrate, except the U.S. Indeed, the global community has made great strides toward universalizing access to safe, clean water as a basic human right. In the quarter-century before 2015, some 2.6 billion people gained access to improved drinking water. From Suriname to Swaziland, even the least developed countries are advancing toward the UN Sustainable Development Goal of providing access to clean water for everyone on the planet by 2030. But as other countries celebrate, few of us are paying attention to the worsening water situation here at home. While the theme of World Water Day 2019 is ‘Leave No One Behind,’ sadly, too many Americans have been just that — left behind — when it comes to accessing safe water.” [The Hill, 3/22/19 (=)]

 

Op-Ed: How Small Steps Make A Difference In Accessing Safe Water. According to The Hill, “World Water Day is intended to be a day of action. When we’re reminded that more than 2 billion people don’t have access to safe water, we should be compelled to act. It’s a massive — and deadly — problem, so it can be hard to figure out where to begin. Sometimes, the answer is to start small. The theme of World Water Day 2019 is ‘Leaving no one behind.’ It’s a crystallization of the UN Sustainable Development Goal 6 — universal and equitable access to safe and affordable drinking water for all by 2030 — reminding us that means all of us, especially the most marginalized, overlooked and hardest to reach. For most of us, water for washing and drinking is taken for granted. We don’t tend to give it a second thought — it’s just there. But that’s not always the case. Just this week, many Venezuelans suddenly found themselves without access to water. Another example is the largely forgotten, mostly invisible, suffering of millions in the Democratic Republic of Congo. The most recent headlines about DRC are focused on the Ebola epidemic in the country’s east, where the death toll is nearing 600 — but few people are aware that less than half of its 77 million people have access to safe, clean drinking water.” [The Hill, 3/22/19 (+)]

 

 

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