Clean Water Act & WOTUS

 

5th Circuit Raises Standing Bar For Groups' Suit On EPA Drilling Permit. According to Inside EPA, “A three-judge panel of the U.S. Court of Appeals for the 5th Circuit grilled environmentalists at recent oral argument on whether they have standing to sue EPA over a Clean Water Act (CWA) general permit for offshore oil and gas activities in the western Gulf of Mexico, raising concerns about how the groups could trace harms to specific discharges. Judges Edith H. Jones, a Reagan appointee, and James C. Ho and Andrew S. Oldham, both Trump appointees, were all critical of environmentalist attorney Kristen Monsell’s position on standing in Center for Biological Diversity (CBD), et al. v. EPA during April 3 oral argument. Jones, for example, questioned whether there is no geographical limit on standing and the other judges questioned whether plaintiffs’ declarations were specific enough to meet the traceability prong of the standing test. Just prior to oral argument, the judges asked the attorneys in the case to be prepared to discuss standing. The case is just the latest high-profile environmental law suit where environmentalists and other Trump administration critics are facing challenges to their standing. In State of California, et al. v. EPA, the federal government is arguing that the ‘special’ standing the Supreme Court granted states to address climate change does not allow plaintiffs to challenge EPA’s efforts to delay landfill methane standards.” [Inside EPA, 4/5/19 (=)]

 

If Sacketts Appeal, DOJ Could Back Regs Trump Wants To Scrap. According to E&E News, “A district court’s ruling in a Clean Water Act enforcement case could leave the Trump administration in an awkward position. U.S. District Court for the District of Idaho Judge Edward Lodge found last week that EPA correctly interpreted 1987 regulations when it issued an enforcement order against Michael and Chantell Sackett for illegally filling wetlands in 2007 (Greenwire, April 3). President Trump has moved to roll back those regulations. So if the Sacketts make good on their promise to appeal the ruling, the Trump administration could be forced to defend in court regulations they say misinterpret the Clean Water Act’s intent. The Trump administration’s Waters of the U.S., or WOTUS, rule proposed in December would change how the Clean Water Act applies to wetlands separated from larger waterways by man-made barriers. It clearly states that ‘when wetlands are physically separated from jurisdictional waters by upland or by dikes, barriers, or similar structures and also lack a direct hydrologic surface connection to jurisdictional waters, those wetlands are not adjacent,’ and would not be protected by the Clean Water Act. The proposal, generally, would not protect any wetlands that do not have a relatively permanent’ surface water connection to larger waterways.” [E&E News, 4/5/19 (=)]

 

Op-Ed: Attacks On Clean Water Jeopardize The Health Of Our Communities. According to Morning Consult, “Still, the Trump administration is making it easier for polluters to contaminate our water. Trump’s budget proposal also cuts funding for categorical grants to assist state clean water programs by 62 percent. States rely on these funds to provide us with safe water, and a massive cut like this one puts all of us, especially our children, in jeopardy. It is undisputed that clean drinking water is a crucial element of public health, and vital to the healthy growth and development of our children. Despite knowing this, the Environmental Protection Agency is set on repealing existing clean water protections, and replacing them with a Dirty Water Rule that would leave more water sources vulnerable to toxic pollutants. When these crucial protections are ripped away, it is often low-income communities with poorer infrastructure and communities of color that suffer the most. We expect our elected leaders to prioritize families and children with policies that keep our water and environments safe. Responsible environmental health policies happen when public health experts and health professionals are brought to the table to weigh in on decisions. To remove science and health knowledge from that conversation, in favor of constituencies who benefit from weaker clean water standards, is a disservice to our kids and families, threatening the health and safety of future generations.” [Morning Consult, 4/5/19 (+)]

 

Op-Ed: Love The Rogue? Support The Clean Water Act. According to Mail Tribune, “The Rogue River is why many of us love where we live. It is known throughout the country for its recreational opportunities and draws thousands to southern Oregon every year. The river connects us and our communities, providing a source of cold, clean water that supports our drinking water, a thriving tourism economy, and healthy salmon and steelhead fisheries. Right now, the health of the Rogue and our communities that rely upon it are at risk from a proposal by the Trump administration to strip protections for categories of waters under the Clean Water Act. This proposal would leave many of the clean, cold local waterways that are crucial to the overall health of the Rogue River vulnerable to increased pressures and pollutions. Streams that flow seasonally with snowmelt and rainfall, irrigation ditches, many wetlands, and ‘isolated’ lakes including Crater Lake would all lose protections under this devastating proposal. In 1972, Congress passed the Clean Water Act to protect the waters of the United States by setting limits on pollution. It is the cornerstone of our nation’s environmental laws and puts in place protections for rivers like the Rogue across the country. When the Clean Water Act became law, it was interpreted to apply broadly to nearly all waters. This latest effort to undermine the Clean Water Act would allow untreated pollution into many waters without meeting the permitting and treatment standards currently required under the law.” [Mail Tribune, 4/7/19 (+)]

 

Coal Ash

 

Workers Say They're Exposed To Toxins At TVA Plants. According to E&E News, “Workers at two power plants in Tennessee say they’re being exposed to toxic coal ash and flue gas. The USA Today Network-Tennessee has obtained videos and photographs that show what workers say is fly ash — coal ash in its dry form — on machinery at the Tennessee Valley Authority’s Bull Run Fossil Plant in Anderson County and on floors and walls in TVA’s Kingston Fossil Plant in Roane County. At Kingston, video and photographs show what workers say is flue gas escaping into the air. Flue gas is toxic, and TVA needs to scrub it before allowing it to enter the air. Contractor Jacobs Engineering Group Inc. has been ordered to mediate with workers over a lawsuit alleging the employees were exposed to coal ash without sufficient protection while cleaning up a massive 2008 spill at the Kingston plant. TVA has defended its relationship with Jacobs (Energywire, March 11). Jacobs plans to appeal, attorney Theodore Boutrous Jr. said in a statement last month. ‘The trial in the first phase of this case was fundamentally flawed and unfair, and it should not stand,’ Boutrous said. ‘There has been no finding of liability in these cases, and Jacobs stands by the quality of its work in assisting TVA with the management of the Kingston cleanup. Jacobs takes pride in working on some of the world’s toughest challenges and in protecting the safety of all those who work on its projects.’” [E&E News, 4/5/19 (=)]

 

NC House Democrats File Bills To Block Duke From Passing Coal Ash Costs To Consumers. According to The Fayetteville Observer, “N.C. House Democrats have moved to block Duke Energy from billing customers for billions of dollars to clean up its coal ash ponds -- a task that grew dramatically more expensive this week. The state environment agency ordered Duke on Monday to dig up and remove ash at six power plants, including two on lakes Norman and Wylie. Excavation is much more expensive than Duke’s preferred option of leaving the ash in place and covering it. Duke estimates that the order would add $4 billion to $5 billion to the $5.6 billion it had expected to spend to close its ash ponds in the Carolinas. Who should pay those costs -- Duke or its customers -- has hung over ash disposal since it burst into public consciousness with a 2014 spill into North Carolina and Virginia’s Dan River. Critics say the company should absorb cleanup costs because it has negligently handled the waste material, which contains heavy metals that can contaminate water. Duke paid $102 million to settle a federal criminal case following the Dan River spill.” [The Fayetteville Observer, 4/6/19 (=)]

 

Environmental Groups File New Lawsuit Against Dynegy Over Coal Ash. According to The News-Gazette, “Dynegy’s legal battles over coal ash at its former power station along the Middle Fork River continue piling up, as two environmental groups have joined hands to file another lawsuit, at the state level this time, alleging the company is polluting Illinois’ only Wild and Scenic River. Earthjustice, on behalf of Prairie Rivers Network, filed the latest complaint March 30 with the Illinois Pollution Control Board, alleging Dynegy has violated Illinois law by allowing toxic pollution from its Vermilion coal-ash pits to leach into ground water and into the Middle Fork of the Vermilion River. The two nonprofit environmental organizations filed a similar complaint last spring in federal court, alleging violations of the Clean Water Act, although a judge later ruled that act doesn’t apply in this situation. However, another case before the U.S. Supreme Court could change that. In that case, County of Maui v. Hawaii Wildlife Fund, an appeals court ruled the Clean Water Act does apply to pollution — in this case, from municipal wastewater wells — that’s discharged into ground water and ends up in a navigable waterway — in this case, the Pacific Ocean.” [The News-Gazette, 4/5/19 (=)]

 

'Excavation Celebration' | NC Community Throws Party After Duke Energy Ordered To Excavate Coal Ash Sites. According to WFMY-TV, “On April 1, the North Carolina Department of Environmental Quality (NCDEQ) announced a ruling that coal ash communities have been waiting for for years. The state agency told Duke Energy the company would have to excavate all of their remaining coal ash in North Carolina. People living in the Belews Creek community, one of those coal ash communities, are now rejoicing. In fact, they threw a ‘Excavation Celebration.’ For years now they have fought to have the coal ash removed. The fear is the toxins from the coal ash have been seeping into ground water. Today the Belews Creek community held an ‘Excavation Celebration’ for their big win.” [WFMY-TV, 4/7/19 (=)]

 

Toxic Algae

 

Wheeler Pledges Help For Miami’s Water Woes But Ignores Climate Change. According to Think Progress, “Environmental Protection Agency Administrator Andrew Wheeler pledged his support for tackling water issues in Miami-Dade County, Florida, during a Friday appearance with local officials. But Wheeler’s remarks omitted the key driving force behind the area’s water problems — climate change. … The most visible challenge is sea level rise, which is swallowing the state’s coast and sinking property values. That is in turn driving climate gentrification in neighborhoods like Miami’s higher-elevation Little Haiti, where lower-income communities of color are being pushed out as wealthier residents seek more secure space. Hurricanes are also a climate impact felt acutely in Florida, especially as storms grow more frequent and severe as waters warm in the Atlantic Ocean and Gulf of Mexico. Florida was also plagued by toxic algae in recent months — blue-green algae and another algae type referred to as ‘red tide’ dominated the state’s elections last year. Algae is a natural phenomenon, but it thrives on warm waters and nutrients. Some scientists have speculated that runoff carried by Hurricane Irma in 2017 may have exacerbated the algae crisis last year. Florida officials have taken some initial steps to address climate impacts. The city of Miami, for instance, is working to address climate gentrification as part of a wider effort to study ‘the impacts of climate change.’ Gov. Ron DeSantis (R), a staunch conservative, has also touted environmental projects as a key component of his first year in office, with an emphasis on water issues.” [Think Progress, 4/5/19 (=)]

 

Red Drift Algae Found On Southwest Florida Beaches. According to WFTX-TV, “Red drift algae is washing up on Southwest Florida beaches. However, it’s not red tide. It’s a different kind of algae. The difference between red drift algae and red tide is you can actually see it with the naked eye. When there’s a large red tide algae bloom, It discolors the water but otherwise, you would need a microscope to see red tide. Also, red tide is toxic and can kill marine life. When its airborne, it can cause respiratory affects on people. However, red drift algae does not have the same affect. According to Mote Marine Laboratory , it’s not harmful or toxic but it can smell bad. It smells when it decomposes, especially when marine animals like fish are caught in it. It’s a macroalgae that can be seen on the beach after it detaches from the bottom. It’s natural just like red tide and can be found any month of the year. It varies in color between red, brown, green or white. Red drift algae is also present on beaches in Sanibel Island, Bonita Springs, North Naples and Marco Island. Scientists say red drift algae may be formed by seasonal nutrients runoff.” [WFTX-TV, 4/8/19 (=)]

 

Colorado River

 

Leaders Fast-Track Drought Deal Legislation. According to E&E News, “The House is fast-tracking consideration of legislation to implement the multistate Colorado River water management accord. H.R. 2030, from House Natural Resources Chairman Raúl Grijalva (D-Ariz.), would give approval to the Drought Contingency Plan, or DCP. The Imperial Irrigation District in California, the biggest single user of Colorado River water, has backed the legislative language but not the actual deal because of concerns related to the shrinking Salton Sea (Greenwire, April 3). Arizona Republican Rep. Martha McSally is championing companion legislation to Grijalva’s in the Senate. The House this week will also take under suspension of the rules H.R. 1331, the ‘Local Water Protection Act,’ from Reps. Angie Craig (D-Minn.) and Brian Mast (R-Fla.), to reauthorize funding for grants administered by EPA to manage water pollution from nonpoint sources.” [E&E News, 4/8/19 (=)]

 

House Tees Up Colorado River Drought Bill. According to Politico, “The House of Representatives has teed up a measure to authorize a Colorado River water-sharing deal for floor consideration next week. The Colorado River Drought Contingency Plan Authorization Act, introduced last week by House Natural Resources Committee Chairman Raúl Grijalva (D-Ariz.) and 22 bipartisan co-sponsors, is listed on next week’s House calendar for potential consideration under a suspension of the rules. The measure would authorize the Secretary of the Interior to implement a deal negotiated by the seven states along the Colorado River that’s aimed at avoiding a catastrophic drop in water levels at the two main reservoirs, Lake Mead and Lake Powell. The single largest user of Colorado River water, California’s Imperial Irrigation District, has not signed on to the deal but said last week that the legislation offered sufficient environmental protections that it would not oppose it. The states and the Bureau of Reclamation have urged quick passage of the measure with the goal of having the deal in place ahead of August, when decisions about water deliveries in 2020 will be made.” [Politico, 4/5/19 (=)]

 

Misc. Waterways

 

Former Children's Health Chief Now Works In Water Office. According to E&E News, “The former director of EPA’s Office of Children’s Health Protection has returned to the agency after being placed on administrative leave last fall. Dr. Ruth Etzel, a pediatrician and public health specialist, was placed on administrative leave by EPA last September (Greenwire, Sept. 26, 2018). EPA spokesman James Hewitt confirmed Etzel’s move to the Office of Water. ‘After undergoing a performance review by career EPA staff, and pending further actions, it was determined that Dr. Etzel be moved to a non-supervisory role in another department following her reinstatement last month,’ he said. Inside EPA was first to report Etzel’s return to the agency. The Office of Water has a broad portfolio, including issuing standards for toxins in drinking water, wastewater management and watershed protection. Etzel’s role in the office is unclear. Etzel has said in multiple television interviews that she believes the agency removed her from the children’s health office because of disagreements over a lead-abatement strategy EPA was working on with other federal agencies. She told CBS News that an EPA political appointee told her that proposed regulations to combat lead poisoning in the strategy ‘wouldn’t fly.’” [E&E News, 4/5/19 (=)]

 

Problems Linger Long After Missouri River Flooding. According to E&E News, “Several communities along the Missouri River continue to struggle to restore drinking water service weeks after massive flooding swept through the area. People who live in the affected Nebraska and Iowa towns have had to adjust to boiling water before drinking it or relying on bottled water while officials work to repair the damage. The challenges each town faces after last month’s flooding differs, but they share the goal of restoring safe drinking water service quickly. Last month’s flooding caused more than $3 billion damage in Nebraska, Iowa, Kansas and Missouri when spring rain and melting snow combined to overwhelm area rivers and inundate towns and land. But the damage is still being tallied. In Glenwood, Iowa, officials used a boat this week to reach one of their three wells inside the water treatment plant and make repairs, while the other two wells remain underwater. But getting a well up and running is only part of the process. Glenwood City Administrator Angie Winquist said the city’s water pipes and towers need to be flushed and refilled before the water can be tested. ‘It will be at least a couple more weeks, but that’s better than a couple months,’ Winquist said.” [E&E News, 4/5/19 (=)]

 

Lawmakers Renew Push For Harbor Funding. According to E&E News, “A House Transportation and Infrastructure subcommittee will review the importance of funding the nation’s harbors at a hearing Wednesday. Fully using the Harbor Maintenance Trust Fund has been a pet issue for full committee Chairman Peter DeFazio (D-Ore.). … The Subcommittee on Water Resources and Environment hearing, led by Rep. Grace Napolitano (D-Calif.), will not be limited to port funding but will also touch on money for inland waterways. In a statement, DeFazio said he hoped the hearing would ‘make the case for additional investment in our ports and inland waterways.’ ‘Full utilization of the Harbor Maintenance Trust Fund for operation and maintenance of all our ports is crucial to both international trade as well as local economies,’ he said. ‘The Inland Waterways bring goods from the heartland to international markets, but face an aging infrastructure problem that must be addressed.’” [E&E News, 4/8/19 (=)]

 

 

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