WOTUS & NWPR

 

Climate Change Could Confuse WOTUS’ ‘Typical Year’ Measure, Experts Say. According to Inside EPA, “Despite the Trump administration’s emphasis on the clear categories of regulation in its waters of the United States (WOTUS) rule, legal and regulatory experts say the rule’s reliance on the concept of a ‘typical year’ to determine when several categories of waters are subject to Clean Water Act (CWA) jurisdiction will create implementation challenges. ‘The term ‘typical year’ is a difficult term to define. We all recognize that in this world of changing climates, we can’t even say what a typical year is,’ Ellen Gilinsky, who was an EPA water office official in the Obama administration, told an American Bar Association webinar Feb. 26. And while the final WOTUS rule signed Jan. 23 calls for looking at a rolling 30-year average of data to define a ‘typical year,’ significant changes in climate have occurred in only the last 10 years, she said. Even most skeptics of human-caused climate change acknowledge data from 30 years ago is significantly different than recent data, so using a time frame of 30 years ‘almost goes back too far,’ she said. David Chung, a partner at Crowell & Moring who has represented industry trade associations in CWA litigation, agreed with Gilinsky that implementing the ‘typical year’ concept is ‘going to be challenging.’ EPA and the Army Corps of Engineers tweaked the definition of a ‘typical year’ in the final rule, compared to the proposed version, to expressly include other climatic variables in addition to precipitation and additional description of the normal periodic range, signaling that such range need not be based on a calendar year. ‘The agencies believe the revised definition more appropriately reflects what the agencies intended to measure, which is, simply put, the characteristics of a waterbody at times that are not too wet and not too dry,’ the rule preamble says.” [Inside EPA, 2/27/20 (=)]

 

Western Water

 

Farm Coalition Says Upcoming California Water Cuts Will Fallow 1M Acres. According to Politico, “A coalition of farmers pushing for major water infrastructure improvements released a study today estimating that upcoming water cuts will result in 1 million acres being fallowed in the southern Central Valley. The analysis by University of California, Berkeley economists David Sunding and David Roland-Holst estimates that the Sustainable Groundwater Management Act and other anticipated supply reductions could force 20 percent of the valley’s 5 million acres of farmland out of production. It also finds that job losses will be more heavily concentrated in poorer and more polluted areas. The ‘Water Blueprint for the San Joaquin Valley’ group hopes to use the analysis to support its policy requests, including repairs to damaged canals and new endangered species rules for pumping water from the Sacramento-San Joaquin Delta. The group is also seeking increased groundwater recharge and retirement of some farmland. ‘We’re trying to find palatable, low-hanging-fruit solutions that collectively we can all get behind,’ said the group’s interim executive director, Austin Ewell. Ewell said the group — 60-odd water districts, agricultural companies and trade groups, including Harris Farms, the Wonderful Company, the Santa Clara Valley Water District and Westlands Water District — briefed Gov. Gavin Newsom’s office on the analysis last month. They’ve found traction with some Valley lawmakers, including state Sen. Melissa Hurtado (D-Sanger), whose CA SB559 (19R) last year sought $400 million to fix the sinking Friant-Kern Canal, another group request.” [Politico, 2/28/20 (=)]

 

Trump’s Clean Water Act Rollback—Implications For California. According to Bloomberg Environment, “As the Trump administration acknowledged, the new rule will leave the states to decide the level of protection these features will be given under their own laws. A number of states have already adopted or are considering their own stop-gap regulations to protect water features no longer regulated by the Clean Water Act as interpreted by the Trump administration. Not surprisingly, California was one of the first to step into the breach. In April 2019, California’s State Water Resources Control Board (State Water Board)—anticipating the Trump administration’s new rule—adopted a far-reaching program to regulate discharges to wetlands and other waters of the state. This new program takes effect in May, and covers all surface waters and ground water in the state of California, thus blunting the deregulatory effect of the federal action. In fact, the State Water Board’s new regulations go further than even the Obama administration’s 2015 regulation to protect wetlands and other waters. As the EPA, the Corps of Engineers, and California’s State Water Board (as well as the board’s nine regional water quality control boards) adjust to their new roles, there is likely to be significant confusion. Where does federal jurisdiction begin and end? Where does state jurisdiction begin and end? In areas of overlap—and there will be many—how will landowners respond to the conflicting regulatory standards and definitions applied by the different levels of government? Although California’s new rules attempt to reduce these areas of conflict to some extent, significant inconsistencies remain.” [Bloomberg Environment, 2/27/20 (=)]

 

Report To Assess Removal Of 4 Snake River Dams For Salmon. According to Associated Press, “A long-awaited federal report due Friday is expected to address the feasibility of removing four hydroelectric dams on a major Pacific Northwest river in a last-ditch effort to save more than a dozen species of threatened or endangered salmon. The four dams on the lower Snake River in eastern Washington are part of a vast and complex hydroelectric power system operated by the federal government in Washington, Oregon, Idaho and Montana. The 14 federal dams on the Columbia and Snake rivers together produce 40% of the region’s power — enough electricity to power nearly 5 million homes, or eight cities roughly the size of Seattle. They also contain a system of locks that allows cities nearly 500 miles (800 kilometers) inland from the Pacific Ocean access to Asian markets via barges that float down the massive rivers to the sea. At the same time, the towering dams have proven disastrous for salmon that struggle to navigate past them on human-made fish ladders as they swim upstream to spawn and die after spending most of their lives in the Pacific Ocean. Salmon are unique in that they hatch in freshwater streams and then make their way hundreds of miles to the ocean, where they spend years before finding their way back to their natal streams to mate, lay eggs and die.” [Associated Press, 2/27/20 (=)]

 

Dam Review Coming. According to Politico, “The Trump administration is expected to release today a new draft environmental impact statement for the system of federal dams along the Columbia River and its tributary, the Snake River. The dams produce nearly half of the nation’s hydropower but also serve as major impediments for fish, including endangered salmon. Environmental groups have targeted four of the dams on the lower Snake River for removal — an option fiercely opposed by Republican lawmakers in eastern Washington, including Reps. Cathy McMorris Rodgers and Dan Newhouse, who have won backing from the Trump administration. Greens, who won the environmental review as part of a 2016 court ruling, are already panning the new environmental review. ‘At this critical point, when what were the world’s most abundant salmon runs are nearing extinction, what we need are new solutions, not a repackaging of previous strategies that clearly haven’t, and won’t, deliver the recovery of salmon,’ said Tom France, the National Wildlife Federation’s regional director for the Pacific Northwest.” [Politico, 2/28/20 (=)]

 

PFAS

 

EPA’s SDWA Proposal For PFAS Could Spur Action On Waste Regulations. According to Inside EPA, “EPA’s proposed decision to develop drinking water limits for two of the most-studied per- and polyfluoroalkyl substances (PFAS) may create momentum to list the chemicals as ‘hazardous substances’ under the Superfund law, even as that effort has lagged in the face of fears from many sectors over potential cleanup liabilities the listing would drive. Sources also say EPA’s drinking water action could drive new soil cleanup standards, regulatory actions and citizen suits under the Resource Conservation & Recovery Act (RCRA) and supplant Defense Department (DOD) efforts to adopt eased screening levels. Brent Fewell, a former senior official in the George W. Bush administration’s EPA water office, now with the Earth and Water Law Group, says the agency’s preliminary determination to develop standards for the two PFAS ‘will no doubt create additional impetus for listing’ them as hazardous substances under Superfund. He said the final drinking water regulatory determination will have to answer whether the substances are hazardous but adds nonetheless he does not see how the agency could not list them as Superfund hazardous substances once it has made such a determination. ‘The real question is how the agency does that and how quickly,’ he adds in an email response. The challenge, he says, is that there are more than 4,700 different PFAS, unlike the more than 800 other hazardous substances currently listed under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), he notes.” [Inside EPA, 2/27/20 (=)]

 

Navy Addresses PFAS Cleanup On Whidbey Island. According to E&E News, “Navy leaders updated lawmakers on their cleanup timeline for PFAS-contaminated installations during a House Armed Services Committee hearing today. Rep. Rick Larsen (D-Wash.) questioned whether the Navy had followed EPA guidelines for cleaning up per- and polyfluoroalkyl substances (PFAS) at Naval Air Station Whidbey Island and Naval Outlying Field Coupeville in Washington state. ‘The Navy’s committment to Whidbey Island has been great and helping the city of Coupeville deal with their well situation, but we still have groundwater issues there,’ Larsen said. The Navy detected PFAS contamination at both installations and the nearby town of Coupeville from the use of aqueous film-forming foam, or AFFF. The foam extinguishes fires on ships and airplanes. In 2016, the Navy started testing drinking water wells for PFAS on Whidbey Island. The results showed PFAS levels in well water were above EPA’s life health advisory standards. Adm. Michael Gilday, the chief of naval operations, pointed to $60 million allocated this fiscal year to address and finish cleanup as scheduled. ‘So in both ‘20 and ‘21, we have money towards cleanup, and the last report that I saw, that we were on track to conduct that cleanup on time,’ Gilday said.” [E&E News, 2/27/20 (=)]

 

AP | Tests Indicate More Water Contamination Near Del. Base. According to E&E News, “Two more wells near a military base in Delaware have elevated levels of chemical contaminants, according to state environmental officials. Delaware’s environmental protection department was recently notified by officials at Dover Air Force Base that the wells near the base may have levels of perfluorooctane sulfonate, or PFOS, and perfluorooctanoic acid, or PFOA, above federal advisory levels of 70 parts per trillion. The notifications come after high levels of PFOS and PFOA were found in four other wells near the base last summer. One of those wells had a PFOS level of 168,000 parts per trillion and a PFOA level of 2,460 parts per trillion, according to a document provided to the Associated Press. The Air Force is continuing to provide alternative water supply to those properties. The owners of the more recently tested wells, which provide water to a single commercial business, also are being provided bottled water. Officials said Tuesday that samples taken at 10 other wells indicated PFOS and PFOA levels below EPA’s health advisory level. PFOA and PFOS are among a class of man-made compounds known as per- and polyfluoroalkyl substances, or PFAS. The compounds have been used in a variety of consumer and industrial products, including nonstick cookware, stain- and water-resistant fabrics, food packaging and, notably, firefighting foam that has been used at military bases across the country.” [E&E News, 2/27/20 (=)]

 

Water Infrastructure

 

4 Lawmaker Priorities In WRDA Legislation. According to E&E News, “A steady stream of lawmakers held court yesterday with long wish lists for water projects in their home states. The Transportation and Infrastructure Subcommittee on Water Resources and Environment held a Members’ Day hearing to vet pitches from non-committee members for possible inclusion in the Water Resources Development Act bill of 2020. Members from New York, California and Florida, as well as interior states such as Ohio and Kentucky, among others, advocated for water projects that help local economies and protect water supplies. WRDA authorizes the Army Corps of Engineers to perform civil works projects that reduce flood risk, improve water navigation or restore aquatic ecosystems. Lawmakers first enacted WRDA in 1976, and it is generally reauthorized every two years. Congress retooled the act after a seven-year hiatus that began in 2007. Here are four areas where members hope to get a piece of the WRDA pie come markup time. 1. Harbor Maintenance Trust Fund … 2. Locks and dams … 3. Invasive species … 4. Restoration and resilience” [E&E News, 2/28/20 (=)]

 

Misc. Waterways

 

EPA Official's Private Response To Trump's Water Pressure Claims: 'Sigh'. According to The Hill, “An Environmental Protection Agency (EPA) official in charge of the agency’s WaterSense program expressed exasperation to her coworkers after President Trump criticized water standards for appliances. Emails obtained by NBC News showed Veronica Blette, head of the WaterSense program, forwarding tweets highlighting remarks that Trump made to reporters at the White House complaining about the number of times toilets at the White House needed to be flushed, adding commentary to her coworkers such as ‘sigh’ and ‘I can’t even.’ Other EPA officials at the WaterSense agency also reacted similarly, including one who wrote to a faucet company executive: ‘We don’t like faucets that only put one drop of water on my hands — LOL — the only ones I think of that might actually just drip are for Barbie doll play houses!’ Trump attacked the EPA and the agency’s water efficiency standards during a diatribe to reporters at the White House in December, when he said that White House staff were looking ‘very strongly’ at the building’s plumbing. ‘We have a situation where we’re looking very strongly at sinks and showers, and other elements of bathrooms,’ he said at the time. ‘You turn the faucet on ... and you don’t get any water. They take a shower and water comes dripping out.’ He has also suggested at campaign rallies that some toilets need to be flushed ‘10 times.’ The EPA declined to comment to NBC on the emails, instead pointing to a December statement from a spokesman for the EPA who at the time said that it was working to ‘ensure American consumers have more choice when purchasing water products.’” [The Hill, 2/27/20 (=)]

 

Republicans Cheer Pollution Crackdown In Blue America. According to E&E News, “EPA Administrator Andrew Wheeler yesterday hinted at a broader crackdown on urban water pollution, an effort that’s already proved controversial and could expose the agency to new claims that it’s politicizing the environmental enforcement process. Republicans appeared to encourage the approach during a House Energy and Commerce subcommittee hearing on the agency’s budget request. Full committee ranking member Greg Walden (R-Ore.) said a rural community in his district was ‘just hammered’ by the Oregon Department of Environmental Quality after a ‘little sewage discharge.’ Meanwhile, the Democratic stronghold of Portland, Ore., is doing the same thing without penalties, Walden said. ‘Do you see that around the country?’ he asked. ‘Tell me what’s going on in these big cities that are dumping sewage and other pollutants into bays and estuaries.’ Sewage spills are common in older cities with sewer systems that combine wastewater and stormwater. When combined-sewage systems fill up during heavy downpours — which climate change is making more common — untreated waste can flow directly into the rivers and other waterways.” [E&E News, 2/28/20 (=)]

 

Trump Admin Rolls Out Final Plan To Boost Recycling, Reuse. According to E&E News, “With 40 states facing freshwater shortages before 2030, the Trump administration today rolled out its plan to increase wastewater recycling and reuse. The National Water Reuse Action Plan features 37 actions and more than 200 implementation milestones tracked on a new online platform for increasing wastewater reclamation nationwide. ‘I have no doubt that this action plan will be looked back on as one of the greatest cross-agency achievements for our nation,’ EPA Administrator Andrew Wheeler said alongside Interior Secretary David Bernhardt and Agriculture Secretary Sonny Perdue today at agency headquarters in Washington. EPA water chief David Ross said he studied the issue not long after joining the agency. ‘I do not think we are where we need to be as a country in water reuse as a viable source of water supply,’ he said. In the U.S., municipal wastewater facilities reuse only about 2.2 billion of 33 billion gallons treated per day. Ross said President Trump’s ‘water sub-Cabinet’ led by Mary Neumayr, chairwoman of the White House Council on Environmental Quality, worked extensively with the wastewater industry and others to produce the draft plan unveiled last year (Greenwire, Sept. 11, 2019). ‘They’ve done an incredible job of eliminating stovepipes within the federal agency,’ Bernhardt said, adding, ‘That is probably a hallmark of this president.’ The final plan sets timelines for compiling national estimates of water as well as the types and extent of reuse. While the Clean Water Act and Safe Drinking Water Act set baseline standards, no regulations govern wastewater recycling.” [E&E News, 2/27/20 (=)]

 

Dems Roll Out Sweeping Environmental Justice Bill. According to E&E News, “House Democrats this morning unveiled a long-awaited environmental justice bill, a novel collaborative effort between lawmakers and local groups that have long been ignored on Capitol Hill. Natural Resources Chairman Raúl Grijalva (D-Ariz.) and Rep. Donald McEachin (D-Va.) later today will lead introduction of the ‘Environmental Justice for All Act,’ which would expand the National Environmental Policy Act and slap new fees on oil, gas and coal to fund communities transitioning away from fossil fuel economies. … Grijalva and McEachin used an online platform called PopVox to allow disparate environmental justice groups around the country to comment on the legislation. During the last 18 months, the lawmakers have also met with hundreds of groups and hosted a daylong environmental justice summit on Capitol Hill. The outreach meant that environmental justice organizations were no longer an afterthought, said Kim Gaddy, an environmental justice organizer with Clean Water Action in New Jersey. ‘They brought us in early,’ she said. … Grijalva said that when he introduced a separate environmental justice bill a few years ago, it garnered virtually no outside support because he hadn’t talked to communities. ‘I wondered, why aren’t people buying into this wonderful idea?’ Grijalva said. ‘Part arrogance and part ignorance.’ This time, he said, ‘the roles were reversed,’ and environmental justice groups led the drafting process. The bill would require federal agencies to offer greater input to environmental justice communities during the NEPA permitting process and mandate consideration of cumulative impacts under the Clean Air Act and Clean Water Act.” [E&E News, 2/27/20 (=)]

 

 

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