Clean Water Act & WOTUS

 

WOTUS Repeal

 

Administration Finalizes Repeal Of 2015 Water Rule Trump Called ‘Destructive And Horrible’. According to The Washington Post, “For years, the fight over how much power the federal government should have to regulate the wetlands and tributaries that feed into the nation’s largest rivers has played out across the country. In the halls of Washington and on sprawling farms and ranches, in courtrooms and corporate boardrooms, a legal tug of war has unfolded over a 2015 rule that gave the Environmental Protection Agency much broader authority over the nation’s waterways. Critics say the Obama rule gave the federal government far too much power; supporters countered it would prevent the loss of vast swaths of wetlands. Court rulings have temporarily blocked the regulation in 28 states, while keeping it in effect in 22 others. On Thursday, the Trump administration plans to scrap the Obama-era definition of what qualifies as ‘waters of the United States’ under the Clean Water Act, returning the country to standards put in place in 1986. ‘What we have today is a patchwork across the country,’ EPA Administrator Andrew Wheeler said in an interview. ‘We need to have a uniform regulatory approach.’ Wheeler, who said the administration will finalize a new definition for which water bodies deserve federal protection within a matter of months, said the agency is seeking to end any lingering uncertainty and return more oversight to individual states. ‘We want to make sure that we have a definition that once and for all will be the law of the land in all 50 states,’ Wheeler said.” [The Washington Post, 9/11/19 (=)]

 

Trump Administration Poised To Repeal 2015 CWA Jurisdiction Rule. According to Inside EPA, “The Trump administration is preparing to announce Sept. 12 that it has finalized a rule to replace the Obama-era Clean Water Act (CWA) jurisdiction rule, a move that is already drawing opposition from environmentalists who are vowing to challenge the repeal in court. The new rule reverses the Obama administration’s 2015 rulemaking that Republicans and industry say overstepped both the letter of the water law and Congress’ intent in crafting it, and it re-codifies the regulatory text that existed prior to the 2015 rule’s definition of ‘waters of the United States’ or WOTUS. Repealing the Obama-era rule is the first step in the Trump administration’s planned ‘repeal-and-replace’ process that also includes a new, narrower CWA jurisdiction standard set for final action by the end of 2019. The repeal could have an immediate effect on the current patchwork of definitions that exists due to different district court rulings on whether the 2015 rule should be stayed pending legal challenges on the rule’s merits. The 2015 rule is in effect in 22 states, the District of Columbia and U.S. territories, but has been fully or partially stayed in the remaining states. But a coalition of Great Lakes advocacy groups is strongly opposing the repeal. ‘With many of our cities and towns living with unsafe drinking water, now is not the time to cut back on clean water enforcement. We need more -- not less -- protection for clean water. The federal government needs to step up its efforts to protect our drinking water, not scale back the rules for polluters. This move undermines efforts to restore the Great Lakes, threatens our drinking water, jeopardizes our public health, harms our outdoor recreation economy, and diminishes our quality of life,’ Laura Rubin, director for the Healing Our Waters-Great Lakes Coalition, said in a statement.” [Inside EPA, 9/11/19 (=)]

 

The 1-2 Step. According to Politico, “The Trump administration is expected to announce today its final repeal of the Obama administration’s Waters of the United States rule, which cemented pollution protections for small streams and wetlands after two muddled Supreme Court decisions. The rollback is just the first step in a two-step process ordered by President Donald Trump barely a month after coming into office that aims to restrict the reach of the Clean Water Act. Today’s step overturns the Obama-era regulation, putting back in place the rules that were on the books prior to 2015. A replacement rule is expected by the end of the year. The proposed version of that replacement rule would significantly restrict the number of waterways that fall under federal jurisdiction, cutting out the vast majority of stream miles in arid Western states and as much as half of the nation’s wetlands. The WOTUS repeal and replacement has been a top priority for several groups, including the American Farm Bureau Federation, the National Association of Homebuilders and the National Association of Manufacturers — which is hosting today’s ‘water policy announcement’ with Wheeler and Assistant Secretary of the Army for Civil Works R.D. James. Straight to court: That’s where green groups intend to take today’s repeal, where it will join a tangled web of ongoing district court litigation over the Obama-era rule. In the meantime, don’t expect major changes on the ground, since courts have put the 2015 on hold in more than half of the states.” [Politico, 9/12/19 (=)]

 

Trump Administration Moving To Repeal Obama-Era Clean Water Act. According to Las Vegas Review-Journal, “President Donald Trump’s administration is moving forward on his commitment to roll back Clean Water Act regulations implemented by the Obama administration in 2015 over the objections of American farmers. Environmental Protection Agency Administrator Andrew Wheeler on Thursday will sign a ‘final rule’ to repeal the Obama ‘waters of the United States’ regulation that expanded waterways and wetlands subject to federal regulations. ‘Our ultimate goal is that the definition should be so easy to understand that a property owner can stand on his or her property and be able to tell for themselves whether or not they have a federal waterway without having to hire an outside consultant or attorney,’ Wheeler told reporters during a conference call. Wheeler also argued that the move would end the ‘patchwork approach on the regulations’ — with 22 states operating under the 2015 rule and the 28 other states subject to separate regulations. Nevada is one of the states operating outside the Obama-era rules after then-Nevada Attorney General Adam Laxalt joined 12 states in a successful legal challenge to the rule.” [Las Vegas Review-Journal, 9/12/19 (=)]

 

Trump Admin To Undo ‘Oppressive’ Obama-Era Water Regulation. According to Daily Caller, “The Trump administration is officially rolling back an Obama-era environmental rule that threatened farmers and other landowners with significant fines or jail time if they failed to comply with onerous regulations on waterways. The Clean Water Rule, more commonly referred to as the ‘Waters of the US’ rule or WOTUS, was finalized by the Obama administration in 2015. The rule attempted to clarify which waters were subject to the regulations of the Clean Water Act, but in many cases ended up confusing land owners even further. For example, WOTUS is supposed to contain agricultural exemptions for farmers. But the federal government sued John Duarte for $2.8 million for plowing his field without a permit because he resided on seasonal wetlands. A senior administration official described the Trump administration’s move to undo WOTUS as a win for land owners and a pushback on government overreach. The official told the Daily Caller, ‘Today, the Trump Administration announced its repeal of President Obama’s oppressive WOTUS regulation. For years, this rule has been used by government agencies to punish farmers and private land owners with out-of-control fines and imprisonment for simply working to protect or better their property. This is another promise kept for our farmers and ranchers as President Trump continues to remove crushing regulations from the American people.’” [Daily Caller, 9/12/19 (-)]

 

Keep An Eye Out For 7 Highly Anticipated Rules. According to E&E News, “At the top of the agenda is the agency’s pending release of its repeal of the Obama-era Clean Water Rule, which sought to clarify which wetlands and waterways are protected as ‘waters of the U.S.,’ or WOTUS, under the Clean Water Act. Legal action has blocked the 2015 rule in 27 states while leaving it in effect in 22 others. The status in New Mexico is unclear. The coming EPA rule, expected at any time, would bring all 50 states back under regulations that have been in place since the 1980s, as interpreted by guidance written by the Bush administration in 2008. The Trump team is simultaneously working to finalize a new definition of WOTUS, which would further roll back Clean Water Act protections under those 1986 regulations. As proposed, the regulation would no longer protect ephemeral streams that flow only after rainfall or snowmelt. Wetlands without surface water connections to larger waterways would also be exempt (Greenwire, Dec. 11, 2018). EPA leaders have said they expect to finalize the new definition by the end of this year.” [E&E News, 9/11/19 (=)]

 

Other Clean Water Act

 

Despite EPA Statement, CWA Waiver For Groundwater Remain Uncertain. According to Inside EPA, “EPA’s attempt earlier this year to provide a bright-line exclusion from Clean Water Act (CWA) regulation for pollution releases to groundwater has done little to provide clarity to states, which continue to take various approaches to the issue, and legal observers say it is uncertain whether the Supreme Court will resolve the issue with a pending case. The agency in April issued an interpretive statement that said such pollution releases should never be subject to CWA permit limits, even if they contaminate protected surface waters. The agency then referenced the new policy in a May amicus brief to the high court in the pending groundwater case, County of Maui v. Hawai’i Wildlife Fund, et al. But the new policy ‘didn’t really provide any clarity,’ Julia Anastasio, executive director and general counsel of the Association of Clean Water Administrators (ACWA), which represents state water quality regulators, said Sept. 10 during an Environmental Law Institute event on groundwater regulation. Instead, EPA’s policy has created at least three different reactions from states, depending on where they are located and how they are currently regulating groundwater, she said. ACWA has taken an ‘all tools in the toolbox approach’ to groundwater, Anastasio said, noting that its members have used a variety of approaches to protect groundwater in their states.” [Inside EPA, 9/11/19 (=)]

 

Citing Climate Risks, EPA Unveils Plan For Recycling, Reuse. According to E&E News, “EPA released a plan yesterday aimed at spurring wastewater recycling and reuse. The National Water Reuse Action Plan examines reuse programs across the nation and identifies ways to bring more projects online. At the WateReuse Symposium in San Diego yesterday, EPA water chief David Ross said the plan is critical to responding to future freshwater shortages. ‘Diversifying our nation’s water portfolio must be a nationwide priority, and water reuse has the potential to ensure the viability of our water economy for generations to come,’ he said. Indeed, 40 states expect to face freshwater shortages over the next decade, the plan says. ‘Climate change will greatly increase the risk that water supplies will not be able to keep pace with demand, necessitating the need to develop new drought-proof supplies,’ it says. The potential for wastewater recycling programs nationwide is large. Municipal wastewater facilities collectively treat an estimated 33 billion gallons per day, but only 2.2 billion gallons is recovered for reuse, with the rest being discharged. At the same time, in 2012, nearly 1 million producing oil and gas wells nationwide produced about 2.4 billion gallons of wastewater a day. Roughly 45% of that was reused by oil and gas production operations, but the rest was disposed of in underground injection wells.” [E&E News, 9/11/19 (=)]

 

Coal Ash

 

As Duke Energy Updates Belews Plant, Concerns Remain Over Coal Ash. According to The Stokes News, “It’s been five months since state regulators ordered Duke Energy to excavate coal ash at six remaining sites across North Carolina, including Belews Creek in Stokes County. The power company is appealing that decision, but in the meantime, it’s taking steps to modernize its equipment and find ways to limit the impact of coal ash. Company spokesman Bill Norton points to a buoy floating on a waste pond where 12 million tons of coal ash sits underneath. ‘If you take a look at the ash basin, you see how far down that water level is,’ says Norton. ‘We’ve been removing the water from the ash basin since March. And regardless of how the basin is ultimately closed, the single biggest step is de-watering the basin, removing the ponded water.’ State law requires Duke Energy to close all of its basins by 2030, but where the coal ash stored in this pond will end up isn’t clear. Once the water is out, the country’s largest electric company plans to partially excavate the basin and cover it with a waterproof top, a method known as cap-in-place. It’s one of two primary methods the Environmental Protection Agency says can be used to safely close these landfills. ‘It makes a lot more sense to close it where it is rather than dig it all up, have emissions from trucks, have a lot of noise and have that go on for more than a decade just to move it to the other side of the road,’ says Norton.” [The Stokes News, 9/11/19 (=)]

 

Climate Change Isn't Just A Global Threat—It's A Public Health Emergency. According to TIME, “There can be no discussion about climate change without a meaningful conversation about public health. As leading health experts have affirmed, the climate crisis is a threat multiplier, particularly for communities suffering from environmental injustice. For example, the Fourth National Climate Assessment, published in 2018 by a collaboration among 13 U.S. scientific agencies, highlights how higher temperatures, severe weather events and rising seas can contribute to heat-related cardiopulmonary illness, infectious disease and mental-health issues. Societal factors such as poverty, discrimination, access to health care and pre-existing health conditions make some populations even more vulnerable. Thousands of communities nationwide—often low-income or with many residents of color—that already face environmental risks constantly grapple with issues that others seldom encounter with the same intensity. These include exposure to air pollutants (like particulate matter and soot produced from burning fossil fuels) or soil and water contamination (caused by dumping coal ash or lead in the water supply). These same communities tend to be systematically targeted when corporations and regulators decide where to build hazardous-waste sites, power plants and waste incinerators. It doesn’t help that these populations often lack access to fresh produce, health insurance, affordable homes, public transportation and economic opportunities.” [TIME, 9/12/19 (+)]

 

Toxic Algae

 

Gov. DeSantis Has Sights Set On Tougher Fines For Environmental Violators. According to WINK-TV, “Governor Ron DeSantis has pushed for environmental protection from the get-go with the blue green algae and red tide task forces and the appointment of the state’s first chief science officer. Wednesday afternoon, he said he has sights set on money and tougher fines for environmental violators. DeSantis said his office wants to make hundreds of millions of dollars in environmental funding a recurring part of the state’s budget. In terms of environmental law enforcement, he says the Florida Department of Environmental Protection will oversee an increase in fines that people and municipalities will face and issue daily fines until the problem is fixed. ‘Cost of doing business,’ said DeSantis. ‘[What] we end up see happening is you have some of these municipalities, it’s cheaper for them to pay a fine and spew all of this sewage into the waterways because its’ the cost of doing business.’ DeSantis said usually what a local municipality does is not his business, but when it harms state waters, it becomes a state issue.” [WINK-TV, 9/11/19 (=)]

 

Op-Ed: Florida Leaders Turning Our Waters Into Algae Factories. According to The Daytona Beach News-Journal, “Listen, if you think waiting for Dorian to make up its mind was a tedious exercise in quiet desperation, try waiting for our politicians to do something about Florida’s other warm water crisis. The same climate change-driven conditions that are conspiring to make hurricanes slower, more destructive and less predictable are also fueling the explosive growth of toxic algae in our lakes and rivers and red tides in our coastal waters. ‘Florida waters are in trouble,’ warns the Florida Conservation Coalition. ‘Across the state, point and non-point source pollution plague the quality of our rivers, springs, lakes, estuaries and coastal waters, and have created ecological, economic and health crises.’ And here’s the thing. Hurricanes may be here today and gone tomorrow. But our blue-green algae and red tide problems won’t blow away. They will only to get worse thanks to our failure to exercise stewardship over our most precious natural resource, the life-giving waters around us. We know why this is happening. It’s neither an act of God nor the fickle finger of nature. Let us count just some of the ways we have been turning our waters into algae factories. • More than a billion gallons of wastewater discharged into Tampa Bay in just four years. • South Florida, unable to handle its own sewage sludge, has been trucking it north, ostensibly to ‘fertilize’ farmlands, but ultimately to turn the St. Johns River green. • The Big Ag retention basin formerly known as Lake Okeechobee continues to spew its filth west into the Caloosahatchee River and east into the St. Lucie.” [The Daytona Beach News-Journal, 9/12/19 (+)]

 

PFAS

 

Report Shows Wider PFAS Exposure At Army Bases. According to E&E News, “Toxic chemicals known as PFAS were found at an additional 90 current and former Army installations, according to the Environmental Working Group. The claim is based on data the group obtained from the Department of Defense through the Freedom of Information Act. The data shows that between 2016 and 2019, toxic chemicals known as per- and polyfluoroalkyl substances, or PFAS, were detected in the groundwater at 108 Army and Army National Guard bases, up from 18. PFAS are man-made chemicals, known for their nonstick and water-resistant properties, and were components in firefighting foam used by the military for decades. Now the chemicals are linked to health issues, like thyroid disease, birth defects and some cancers. ‘These results are alarming, because they show that PFAS contamination of the water provided to our soldiers is nationwide and exposes them to a number of types of PFAS,’ EWG Senior Scientist David Andrews said in a statement. ‘Because many PFAS chemicals build up in the body, even very low concentrations in drinking water can increase the risks of serious health problems.’ Yesterday, the Senate Defense Appropriations Subcommittee advanced a $695 billion defense spending bill that would allocate $251 million for the military to combat PFAS contamination on bases (Greenwire, Sept. 10).” [E&E News, 9/11/19 (=)]

 

Plastic Pollution

 

California Considering Toughest Plastic Pollution Laws In United States. According to The Mercury News, “With enormous and ever-growing amounts of plastic washing into oceans, rivers and lakes around the world, California lawmakers this week are considering passing the nation’s most far-reaching laws to reduce plastic pollution over the next decade. Three bills before the state Legislature would require companies that sell products widely found in grocery stores and fast-food restaurants to shoulder much of the burden for cutting the amount of plastic waste. The proposed legislation is drawing praise from environmental groups, who say it is long overdue and will set an example for other states to follow. But it is opposed by industry groups, who argue the measures are costly and unfairly broad. … First, starting on Jan. 1, 2030, all single-use packaging and food products — including plates, straws, forks, spoons, knives, cups and bowls that are offered for sale, sold, or imported into California — would have to be recyclable or made of materials that decompose when composted. … Second, the bills also would require a 75% reduction of the waste generated from single-use packaging in California by 2030. That could come through recycling, composting or reduction in the amount of packaging. A state agency, CalRecycle, would have until 2024 to draft the specific rules. Supporters of the bills include most of California’s major environmental groups, including the Sierra Club, Audubon California, Natural Resources Defense Council and Oceana. The proposals also have been endorsed by the California Coastal Commission, the Monterey Bay Aquarium and numerous cities, including Los Angeles, San Diego, Half Moon Bay, Alameda and others. Opponents include the California Chamber of Commerce, the Chemical Industry Council of California, the Grocery Manufacturers Association, the Plastic Shipping Container Institute and other industry groups.” [The Mercury News, 9/11/19 (=)]