Clean Water Act

 

EPA Drops Sackett Case. According to Politico, “Nearly 12 years after EPA told an Idaho couple that they had to halt their work filling in streams and wetlands — a move that made it all the way to Supreme Court review and won individuals the right to challenge Clean Water Act compliance orders in court — the agency has dropped its action against Chantell and Michael Sackett. In a March 13 letter to the couple’s attorney, EPA enforcement chief Susan Bodine said the agency was withdrawing its administrative compliance order, which it has not enforced in several years. ‘Given the passage of time and the fact that the EPA’s enforcement case is not active, the EPA is withdrawing the ACO,’ Bodine wrote. The move comes after an Idaho district court last year ruled that the wetlands at issue in the Sackett case were indeed protected under the Clean Water Act. The Pacific Legal Foundation, which is representing the couple, has appealed that decision to the 9th Circuit Court of Appeals. EPA did not respond by press time as to whether the agency has deemed the Sacketts’ wetlands outside the scope of the Clean Water Act — a question that PLF attorney Tony Francois said he has also asked EPA. ‘Without clarification from EPA on whether they concede that the property is not subject to the Clean Water Act, the Sacketts would be stuck either guessing (possibly incorrectly) or going through the time and expense of getting an approved jurisdictional determination,’ Francois said.” [Politico, 3/31/20 (=)]

 

9th Circuit Rejects EPA Bid To Rehear Landmark TMDL Decision. According to Inside EPA, “The U.S. Court of Appeals for the 9th Circuit has denied EPA’s request to reconsider a three-judge panel’s landmark ruling that expands a controversial ‘constructive submission’ judicial doctrine forcing the agency to develop waterbody cleanup plans when states have failed to act, opening the door to a possible Supreme Court appeal. ‘The panel votes to deny the petition for rehearing. The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. The petition for panel rehearing and the petition for rehearing en banc are denied,’ the 9th Circuit says in a March 30 order. In most circuits, an en banc rehearing would involve all of the active judges on the court, but due to the large size of the 9th Circuit, en banc rehearings there are conducted before the chief judge and a randomly selected group of 10 other active judges. The decision leaves the high court as EPA’s only remaining option for judicial review. Constructive submission is a rarely applied judicial doctrine which holds that even though the Clean Water Act (CWA) only requires EPA to review and approve state-crafted total maximum daily load (TMDL) waterbody cleanup plans, rather than to act on a state’s failure to submit a plan for review, a sustained, deliberate failure to craft TMDLs is, in effect, a submission of ‘no TMDLs’ that the agency can review and disapprove.” [Inside EPA, 3/30/20 (=)]

 

WOTUS & NWPR

 

NRDC Gears Up To Sue Over Trump Rollback Of Obama Water Law. According to The Hill, “The Natural Resources Defense Council (NRDC) plans to sue the Trump administration over a rollback to a controversial Obama-era water law, arguing leaders failed to consider how it would impact endangered species. The January policy from the Environmental Protection Agency (EPA) replaces the already-repealed Waters of the United States rule (WOTUS), crafted under President Obama, which expanded the types of waterways protected by federal law. President Trump’s Navigable Waters Protection Rule limits that scope, removing protections for smaller bodies of water, even some seasonal ones caused by snowmelt, that environmentalists say must be protected in order to stop pollution from reaching larger sources, including those used for drinking water. Wetlands, important habitat for a number of species, face reduced protections under the Trump-era rule, as do the intermittent streams that serve as important water sources for protected desert species. NRDC argues the EPA violated the Endangered Species Act by failing to review how those protected animals might fare under the new rule. ‘Because the Rule removes Clean Water Act protections for wetlands and streams that endangered and threatened species depend on for habitat and food, there is no question that the rule ‘may affect’ ESA-listed species,’ the NRDC writes in its letter. That impact requires the EPA to consult with the Fish and Wildlife Service before rolling out nay new regulations, they argue. The letter gives the agency a 60-day timeline to do so before they file suit. The EPA did not immediately respond to a request for comment.” [The Hill, 3/31/20 (=)]

 

Western Water

 

Environmental Groups Complain About Dam Hearings Format. According to E&E News, “Some environmental groups are complaining about the teleconference format for gathering public comments on a federal government proposal to save salmon runs on the Columbia River System. Because of the coronavirus pandemic, the government decided to hold teleconferences, rather than in-person public hearings, on its new proposal that downplays removing four dams on the Snake River to save the fish. The teleconferences are cumbersome and allow for far fewer comments than the traditional public hearings, environmental groups contend. ‘Twenty years ago, 800 people turned out for Spokane’s public hearing on whether the dams should be removed, with the vast majority testifying in support of restoring a free-flowing lower Snake River,’ said Sam Mace, a spokeswoman for the group Save Our Wild Salmon. ‘The teleconference calls clearly are not working for the public, with only 20 to 30 people speaking,’ Mace said. She and other environmentalists are calling on the federal government to double the comment period to 90 days and hold more hearings. ‘This doesn’t feel like a meaningful way to engage the public,’ said Robb Krehbiel of Defenders of Wildlife. ‘Lots of people have other things on their plates.’ ‘Public hearings give people an opportunity to look agency decisionmakers in the eye and share their views, which gives them a sense they are being seen and heard,’ said Rob Masonis of Trout Unlimited.” [E&E News, 3/30/20 (=)]

 

Drinking Water

 

SAB To Review EPA's Lead And Copper Rule Update. According to Politico, “EPA’s Science Advisory Board today voted to review the agency’s proposal for updating the decades’ old Lead and Copper Rule (Reg. 2040-AF15) aimed at protecting drinking water from the potent neurotoxin. The Trump administration’s proposal would change several key aspects of the regulation, including requiring that utilities with elevated lead levels in their water replace lead service lines at a rate of 3 percent a year — as opposed to the current rate of 7 percent — while closing key loopholes. EPA staffer Eric Burneson told the board that many of the key decisions in the rule, including the rate of replacement, were decisions based on feasibility rather than science. Nevertheless, the majority of the board and its drinking water committee concluded that there would be value in conducting a review. ‘EPA staff have clearly done a great job of organizing the information and reviewing things. Given that there’s 80,000 public comments, it seems to me that there could be something that gets raised that would warrant this group to be able to do a review,’ said June Weintraub, an official with the San Francisco Department of Public Health and member of the drinking water committee. SAB Chairman Michael Honeycutt said it will have to be a ‘really fast review’ to be ready in advance of the agency’s plans to finalize it in the coming months.” [Politico, 3/30/20 (=)]

 

SAB Votes To Review EPA’s Draft Lead And Copper Drinking Water Rule. According to Inside EPA, “EPA’s Science Advisory Board (SAB) has voted to review the agency’s proposed changes to its lead and copper drinking water rule (LCR) after a majority of members agreed March 30 there was value in examining several aspects of the rule, including its cost-benefit analysis, exposure modeling, and the effectiveness of risk communication efforts. The review will be the first since EPA Administrator Andrew Wheeler adopted controversial new rules governing when SAB could review pending agency actions; the board later voted to decline review of the agency’s pending methane rule for new oil and gas facilities. SAB Chair Michael Honeycutt, director of the Texas Commission on Environmental Quality’s toxicology division, told the panel the LCR review ‘would have to be a really fast review’ in order to provide feedback to EPA in time for the agency to meet its goal of finalizing the rule by the end of the summer. But Otto Doering, emeritus professor of agricultural economics at Purdue University in Indiana, said there is still value in SAB review even if the board produces a ‘historical document’ that is finalized too late for EPA to consider. Approximately 10 members of the chartered SAB and its separate drinking water committee voted against review, including Mark LeChevallier, a retired drinking water utility official who is now a part-time consultant. LeChevallier, who serves on the drinking water panel said that many of the issues raised during a discussion of the LCR are policy issues and that it would be hard to find scientific questions to consider. But Mark Wiesner of Duke University, a member of the chartered SAB who also chairs the drinking water committee, countered, ‘I think there are a lot of scientific issues.’” [Inside EPA, 3/30/20 (=)]

 

Plastic Pollution

 

How Big Plastic Is Using Coronavirus To Bring Back Wasteful Bags. According to Mother Jones, “The plastic industry is not going to waste a crisis. In January, when the world was still awakening to the novel coronavirus, the plastic bag manufacturer Novolex warned that the outbreak in China would lead to paper-bag shortages, and that cities’ plastic bag bans could cause supply-chain disruptions. By late February, that narrative had taken a turn. When community spread of COVID-19 cases in the United States looked to be inevitable, companies found a new culprit for the spread of the coronavirus: reusable bags. On February 28, the libertarian think tank Competitive Enterprise Institute posted on its website, ‘Whether reusable bags could become a significant carrier of the coronavirus remains to be seen, but there are good reasons to fear they will harbor other equally dangerous bacteria and viruses transmitted from carrying meat and produce.’ Later in March, John Tierney, a former New York Times columnist and climate change skeptic, wrote in an op-ed at City Journal, a publication of the conservative think tank Manhattan Institute, ‘Reusable tote bags can sustain the Covid-19 and flu viruses—and spread the viruses throughout the store.’ By March 18, the campaign against reusable bags kicked into high gear. The trade group the Plastics Industry Association requested that the US Department of Health endorse the idea that ‘single-use plastic products are the most sanitary choice when it comes to many applications,’ amid the COVID-19 pandemic, according to Politico. That same day, Mother Jones found, a conservative nonprofit called the Independent Women’s Forum started running ads pressuring Washington state, New York, and California to reverse their bag bans. IWF’s ad’s claim: ‘Researchers say COVID-19 can survive on reusable tote bags for nine days. However, some state legislators are enforcing draconian bans on plastic bags, which might contribute to the spread of the virus and other harmful microorganisms.’” [Mother Jones, 3/27/20 (+)]

 

We Made So Much Progress On Plastic Bags. Coronavirus Could Undo It Al.  According to HuffPost, “As we scramble to understand more about COVID-19 and how it spreads, the plastics industry appears to be taking advantage of this confusion by pushing back against remaining state and municipal bans with a public relations campaign that highlights the supposed dangers of reusable bags. A proliferation of op-eds and news releases suggests that the industry seeks to rescue its reputation after successful environmental campaigns against plastic pollution have led to a swath of bans on single-use plastic. The pressure is organized and intense. On March 18, the Plastics Industry Association sent a letter to Secretary of Health and Human Services Alex Azar, which was later published by Politico. The letter made the case that ‘single-use plastics are the safest choice’ and asked the department to ‘speak out against bans on these products as a public safety risk.’ Meanwhile, the American Legislative Exchange Council, which promotes a conservative agenda in statehouses and is partially funded by plastics manufacturers, is touting model legislation that would let states overrule local bag bans (it had already inspired bills in six states before COVID-19). And as officials roll back bag bans nationwide, including in Maine and New Hampshire, the rightwing media and conservative think tanks (many with ties to or funding from the plastics industry) are pushing for more single-use plastics and joining the offensive against reusable bags. Other single-use plastics In addition to plastic bags are also seeing a boost during the pandemic, with companies like Starbucks and Dunkin’ Donuts banning reusable cups.” [HuffPost, 3/31/20 (=)]

 

Water Infrastructure

 

Wheeler To States: Name Water Sector Workers As 'Essential'. According to E&E News, “EPA Administrator Andrew Wheeler pressed state governors to designate drinking water and wastewater employees as ‘essential workers’ during the novel coronavirus pandemic. ‘Ensuring that drinking water and wastewater services are fully operational is critical to containing COVID-19 and protecting Americans from other public health risks,’ Wheeler wrote in a Friday letter. Wheeler added, ‘I am writing to you to request that water and wastewater workers, as well as the manufacturers and suppliers who provide vital services and materials to the water sector, are considered essential workers and businesses by state authorities. ... Our critical infrastructure and the operators who ensure the safe supply of water to our homes and hospitals depend on treatment chemicals, laboratory supplies and related goods and materials.’ In the letter, he cited March 16 federal guidance that states, ‘If you work in a critical infrastructure industry, as defined by the Department of Homeland Security ... you have a special responsibility to maintain your normal work schedule.’ Wheeler also directly referenced DHS guidance that identifies water sector workers and suppliers as essential critical infrastructure workers. Prior to the letter’s release, Wheeler held teleconferences with the water sector to acknowledge the importance of their work during the pandemic and to identify ways EPA could support the sector, according to an agency press release. ‘Continuing the ongoing partnership between EPA, states, water systems and the public is as important as ever during these challenging times,’ Alan Roberson, executive director for the Association of State Drinking Water Administrators, said in the release.” [E&E News, 3/30/20 (=)]

 

Democrats Eye Infrastructure, Water Provisions In Next Relief Bill. According to Politico, “Rep. Frank Pallone (D-N.J.), chairman of the Energy and Commerce Committee, said the ongoing pandemic had exposed the fragility of the nation’s infrastructure, and that recovering from the virus offered an opportunity to fix those problems. ‘I think the coronavirus pandemic has really kind of bared a lot of inadequacies with the nation’s infrastructure,’ Pallone said. ‘We’ve got to address the infrastructure so this doesn’t happen again if there’s another pandemic or disaster of a similar nature.’ In particular, Pallone cited ‘inadequate drinking water supplies’ and problems accessing the electric grid in portions of the country ‘to bring more power online’ as particular vulnerabilities. Democrats cited problems throughout much of the country in accessing the Internet as another crucial area to address. Pallone also said he wanted to include protections that those struggling don’t have their water or electricity cut off during the pandemic. Some of those protections were included in the House Democratic bill, H.R. 6201 (116), but were dropped in the ultimate package that became law, H.R. 748 (116). The New Jersey Democrat also said he’s in regular contact with Rep. Greg Walden (R-Ore.), his ranking member on the Energy and Commerce Committee, as work begins on drafting the next legislative package.” [Politico, 3/30/20 (=)]

 

Misc. Waterways

 

Supreme Court Pins Spill Cleanup Costs On Citgo. According to Politico, “The Supreme Court today ruled that Citgo must pay $133 million for a 2004 spill that fouled the Delaware River with 264,000 gallons of crude oil. Citgo subsidiaries had sub-chartered a tanker to move oil from Venezuela to a port in New Jersey. Shortly before docking, an abandoned anchor in the river tore into its hull, causing the spill. The tanker’s owner, Frescati Shipping, argued that Citgo was on the hook for the $133 million cleanup effort because of a contractual obligation for Citgo to choose a ‘safe berth’ for the vessel. In a 7-2 opinion, the Supreme Court agreed, ruling that the safe-berth clause surpassed mere due diligence and instead establishes a guarantee that the port would be safe. ‘We conclude that the language of the safe-berth clause here unambiguously establishes a warranty of safety, and that CARCO has identified ‘no reason to contravene the clause’s obvious meaning,’ Justice Sonia Sotomayor wrote for the majority. She noted that the ruling does not necessarily constrain future contracts, which could avoid this type of risk by ‘expressly limiting the extent of their obligations or liability.’ In a dissent, Justices Clarence Thomas and Samuel Alito argued that the contract did not necessarily create a warranty and said they would have sent the case back to lower courts ‘for factfinding on whether industry custom and usage establish such a warranty in this case.’ The case was CITGO Asphalt Refining Co. v. Frescati Shipping Co., 18–565.” [Politico, 3/30/20 (=)]

 

Court Won't Revisit Ruling On River Temperature Limits. According to E&E News, “A federal appeals court today rejected the Trump administration’s request to reconsider a ruling forcing EPA to set temperature standards for the Columbia River in the Pacific Northwest. The San Francisco-based 9th U.S. Circuit Court of Appeals last year sided with conservationists who said temperature limits would help the river’s struggling salmon runs. It gave EPA 30 days to move ahead with the standards (Greenwire, Dec. 20, 2019). EPA asked the court to reconsider, requesting a rehearing before a larger panel than the three judges who initially decided the case. The agency sharply criticized the decision, claiming it would set a dangerous Clean Water Act precedent because it would require EPA to set standards when a state fails to act. ‘The plain text of the Act,’ the administration wrote in a court filing, ‘imposes no mandatory duty for EPA to respond to a State’s failure to submit to EPA water quality standards known as ‘total maximum daily loads’ (Greenwire, March 5). Salmon runs in the Columbia River and, in particular, its largest tributary, the Snake River, have continued to decline. Experts say some are on the verge of extinction (Greenwire, Sept. 25, 2019). Multiple factors have contributed to that decline, including climate change and agricultural pollution. But a major influence is the series of dams in the basin, which bring flowing water to a standstill and allow temperatures in the impounded reservoirs to rise.” [E&E News, 3/30/20 (=)]

 

 

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