Clean Water Act

 

NWPR & WOTUS

 

States Challenge Trump Navigable Waters Protection Rule. According to Politico, “A coalition of Democratic state attorneys general sued the Trump administration today over its rule shrinking the number of streams and wetlands protected under the Clean Water Act. The challenge, filed in U.S. District Court for the Northern District of California, contends that EPA’s Navigable Waters Protection rule violates the Administrative Procedures Act, contradicts the Clean Water Act’s objectives and fails to comply with Supreme Court precedent. On a call with reporters, New Mexico Attorney General Hector Balderas said the Trump administration rule is particularly dangerous for desert states like his since it would drop federal protection for ephemeral waterways that flow only after rainfall events. ‘Nearly 90 percent of our waterways come from precipitation, so when we do receive an abundant rainfall we deserve the highest protection,’ he said. New York Attorney General Letitia James argued the Trump rule will create a race to the bottom since it ‘incentivizes all these companies to relocate to upstream states with less stringent protections.’ Joining Balderas and James in the suit are attorneys general from California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, Washington, Wisconsin and the District of Columbia. The state litigation joins the growing pile of lawsuits challenging the regulation in district courts across the country, including complaints filed by environmental groups and a challenge from a conservative property rights group that contends the Trump administration rule is still too broad.” [Politico, 5/1/20 (=)]

 

States Sue Trump Administration Over Rollback Of Obama-Era Water Protections. According to The Hill, “A coalition of 17 Democratic-leaning states sued the Trump administration on Friday for rolling back Obama-era protections for waterways, arguing the move ignores science on the interconnectivity of water. President Trump’s Navigable Waters Protection Rule limits federal protections for a number of smaller waterways, which many scientists say risks pesticides and pollution reaching larger ones. ‘This rule opens the door to new, and worse industry pollution that endangers our wildlife, it dirties our drinking water and increases the risk of harmful contamination of our nation’s waterways. In short, it risks the health and safety of Americans around the nation,’ California Attorney General Xavier Becerra (D) said in a call with reporters announcing the suit, which was filed in the U.S. District Court for the Northern District of California and asks to vacate the rule entirely. The new rule from the Environmental Protection Agency (EPA) limits protections for headwaters like creeks, wetlands and seasonal water bodies caused by snowmelt. It is the final replacement of the Obama-era Waters of the United States (WOTUS) rule, which Trump vowed to dismantle during the 2016 campaign. Many farm groups opposed WOTUS, arguing it subjected huge swaths of farmland to federal oversight.” [The Hill, 5/1/20 (=)]

 

Permits & Certifications

 

Op-Ed: U.S. Supreme Court Decision On Groundwater Discharges Is A Huge Win For The Environment. According to Virginia Mercury, “Trump’s solicitor general argued that ‘all releases of pollutants to groundwater’ are excluded from the scope of the permitting program, ‘even where pollutants are conveyed to jurisdictional surface waters via groundwater.’ Justice Breyer countered in his opinion, ‘That reading, which would open a loophole … is neither persuasive nor reasonable.’ This ruling is huge. It’s a Roe v. Wade moment for the environment. It means polluters can’t use groundwater or other nonpoint methods to get rid of their pollution without a permit. And the ruling has widespread implications. For example, in Sierra Club v. Virginia Electric and Power (Dominion Energy), the U.S. Fourth Circuit Court of Appeals reached a different conclusion in a case about Dominion’s unlined coal ash pond in Chesapeake that leached arsenic from the unlined pond through the groundwater to the Elizabeth River and Deep Creek. The court found Dominion not in violation of the Clean Water Act, partly because the arsenic went through groundwater — and groundwater was not covered under the Clean Water Act. SCOTUS now says it is. The first sentence of the Clean Water Act: The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” [Virginia Mercury, 5/1/20 (=)]

 

Editorial: A Victory For Clean Water (And Beer). According to York Dispatch, “Beer breweries, sea turtles and coral reef lovers can relax a little: The Supreme Court isn’t letting the Trump administration open a new loophole in the Clean Water Act. The court last week ruled 6-3 in County of Maui vs. Hawaii Wildlife Fund that the 1972 law won’t allow industries to forego getting a permit for discharging waste simply by stopping pipes short of releasing pollution directly into a navigable waterway. … What does all of this have to do with beer? The case was closely watched by craft breweries, who realized that if polluters are allowed to indirectly dump whatever they want into groundwater that will make its way to waters used by the brewers, that will change the flavors of their beers, according to CNBC. Some of them filed an amicus brief on the case last summer stating their interest in making sure the long-standing interpretation of the Clean Water Act stayed in place. The court’s decision delivers a rebuke to the administration along with a needed win for those who want to make sure the sea turtles, beachgoers and craft brewers of the country remain safe.” [York Dispatch, 5/1/20 (+)]

 

Water Pollution

 

Stormwater

 

AP | Project To Purify Water Reaches 'Critical Milestone'. According to E&E News, “Site work has started on a project meant to purify water in the Florida Everglades, state officials announced yesterday. The Everglades Agricultural Area Reservoir Project recently received the required federal permit, according to a news release from Gov. Ron DeSantis (R). The South Florida Water Management District is now working on the project site for a 6,500-acre stormwater treatment wetland south of Lake Okeechobee. DeSantis announced that he was making the environment one of his top priorities after taking office in January 2019. He signed an executive order on his second day in office to expedite the EAA Reservoir Project. ‘Today marks a critical milestone for Everglades restoration and achieving our state’s long-term environmental goals,’ DeSantis said in a statement. ‘When I took office, I made expediting the EAA Reservoir Project a top priority. Beginning construction means we are a big step closer to moving more clean water south to the Everglades and lessening harmful discharges from Lake Okeechobee into the Caloosahatchee and St. Lucie estuaries.’ The South Florida Water Management District has executed a $1.3 million contract for this first phase of the project’s stormwater treatment area. The entire project is expected to cost more than $1.8 billion. After the initial site preparation, the district will begin construction of canals and berms.” [E&E News, 5/1/20 (=)]

 

Wastewater

 

Alabama Sues Tyson Farms Over 2019 Wastewater Spill, Resulting Fish Kill. According to AL.com, “The state of Alabama is suing agricultural giant Tyson Farms over one of the largest recorded fish kills in Alabama. The state seeks compensation for damages caused by a June 2019 wastewater spill that killed an estimated 175,000 fish and in the Mulberry Fork of the Black Warrior River. The spill angered local residents as waves of dead and decomposing fish washed down the river for days. Months later, the river was still largely devoid of fish. The lawsuit, filed by the Alabama Attorney General’s office, alleges that Tyson ‘engaged in negligent and wanton conduct by causing a public nuisance, committing a trespass to State land, and by committing a trespass to chattel, resulting in the death of various species of fish and other wildlife.’ The state is seeking unspecified penalties and compensation from Tyson for the damages caused by the spill. ‘On June 6, a pipe failure at the Tyson Plant in Hanceville, Ala., caused the release of over 200,000 gallons of insufficiently-treated wastewater into the Mulberry Fork of the Black Warrior River,’ the AG’s office said in a statement. ‘Since that time, the Attorney General’s Office has undertaken extensive preparation for litigation, and today, the Attorney General filed suit against Tyson. ‘The Attorney General’s mission in this matter is simple—to see the State made whole for the damage done to our environment and to see the affected communities adequately compensated for their unique and devastating losses.’” [AL.com, 4/30/20 (=)]

 

AP | Ala. Sues Tyson Foods Over Wastewater Spill, Fish Kill. According to E&E News, “The state of Alabama sued Tyson Foods Inc. yesterday over a 2019 wastewater spill that caused the largest recorded fish kill in the state. The Alabama attorney general’s office filed the suit, saying Tyson was negligent ‘by causing a public nuisance,’ AL.com reported. A pipe failure at the Tyson plant caused over 200,000 gallons of ‘insufficiently-treated wastewater’ to flow into the Mulberry Fork of the Black Warrior River, leading to the deaths of around 175,000 fish, the attorney general’s office said. A statement from Attorney General Steve Marshall (R) said the office wants the state and the community to be compensated for damage done to the environment. Tyson Foods spokesman Worth Sparkman said the company was disappointed with the state’s decision to file the lawsuit. Sparkman said the company has tried for months to work with the state, offering to ‘initiate conservation and community projects including river access in the area of the accidental release.’” [E&E News, 5/1/20 (=)]

 

Water Infrastructure

 

Developer: Keystone XL Ruling Could Delay Project A Year. According to E&E News, “The Keystone XL pipeline project could be delayed by up to a year due to a federal judge vacating a key water-crossing permit, developer TC Energy Corp. warned Friday. The crude oil project lost its approval to cross protected federal waters under the Army Corps of Engineers’ Nationwide Permit 12 program, after a Montana district judge put a hold on any authorizations under the program last month (Energywire, April 16). The broad decision — which requires the Army Corps to undertake interagency consultation under the Endangered Species Act — could mean a year of delay in the ‘ultimate project,’ according to TC Energy, formerly TransCanada Corp. The pipeline is scheduled to go into service in 2023, ferrying up to 830,000 barrels of crude from Canada’s oil sands to the U.S. Gulf Coast. ‘Obviously, our preferred path is to march forward with the [construction] spreads that we have identified for the U.S. But we do maintain that we will be able to complete a significant amount of work in the United States in 2020, even if it isn’t the same scope under which we began the year,’ Bevin Wirzba, TC Energy’s senior vice president of liquids pipelines, said in a quarterly earnings call with investors Friday.” [E&E News, 5/4/20 (=)]

 

Rocky Road For Infrastructure Legislation This Year. According to E&E News, “Infrastructure isn’t likely to be part of the next coronavirus relief package, but top lawmakers are eyeing action this fall on the Senate’s $287 billion highway bill — and floating the possibility of combining it with water infrastructure legislation. … In an interview with The Washington Post last month, EPW Chairman John Barrasso floated the possibility of combining the highway bill with two pieces of draft water infrastructure legislation. The Wyoming Republican was referring to ‘America’s Water Infrastructure Act of 2020’ and the ‘Drinking Water Infrastructure Act of 2020,’ which the panel unveiled last month (E&E News PM, April 21). A spokeswoman for EPW Republicans confirmed that Barrasso remains keen on this plan, despite the fact that the individual pieces of legislation are heavy lifts on their own. ‘Chairman Barrasso believes investing in America’s infrastructure is one of the best ways to support our nation’s economic recovery once we are past the immediate health crisis,’ Sarah Durdaller, the committee’s press secretary, said in an email to E&E News. ‘That includes the bipartisan highway infrastructure legislation, America’s Transportation Infrastructure Act, and the two draft bills that were released last week to improve the country’s water infrastructure,’ she said. The Senate is set to return to Washington today, despite mounting anxiety from lawmakers about contracting and spreading the virus in the close quarters of the Capitol. With the chamber back in session, Durdaller said the EPW Committee will mark up the two pieces of draft water infrastructure legislation at a future business meeting, at which point ‘Chairman Barrasso will work to have the Senate add the two water bills to the highway infrastructure bill when the Senate takes up the highway bill.’” [E&E News, 5/4/20 (=)]

 

EPW Committee Sets Vote On Water Projects Legislation. According to E&E News, “State and local groups said the draft water resources bill — ‘AWIA’ — would ease the financial burden on jurisdictions seeking federal assistance and offer more support for infrastructure projects that make communities more resilient to extreme weather. The National Governors Association, National Conference of State Legislatures, National Association of Counties, National League of Cities and U.S. Conference of Mayors also presented concerns. The groups said members depend on low-cost financing that the Drinking Water and Clean Water state revolving funds provide for critical water infrastructure projects but that they need additional relief. ‘Given the current fiscal realities in communities across the nation due to the impacts of COVID-19, we encourage Congress to expand flexibilities and partnerships surrounding the use of these funds in addition to reducing or temporarily eliminating their associated matching components,’ read a joint letter released last month. It also called for more mitigation and resilience efforts to better prepare for catastrophic storms and floods. ‘As these severe weather events become more commonplace, our members and their constituents ask for a strong federal partner and funding in making our communities more resilient,’ read the letter. The organizations also expressed concern about Harbor Maintenance Trust Fund dollars not going to their intended purpose, a perennial issue on the Hill (Greenwire, March 31).” [E&E News, 5/4/20 (=)]

 

How Do You Fight The Coronavirus Without Running Water? According to The New York Times, “Several weeks ago, Larry Welch and his mother, Mary Ann, contracted Covid-19 and died. In the midst of a pandemic in which one of the first lines of defense is vigorous hand washing, they were among more than two million Americans who lack running water. Mr. Welch was a disabled Army veteran who served in Operation Desert Storm. His mother lived in Arizona in a remote corner of the Navajo reservation, and her son often visited her to help out by cutting firewood, caring for her sheep and hauling her drinking water. Hauling water required Mr. Welch to leave the safety of his home, another line of defense against the coronavirus, to fill a 200-gallon tank in his truck from a public tap and drive 90 minutes to his mother’s house. In mid-March, he probably also brought the virus to his mother without knowing it. Weeks later, their family and community are mourning their loss. They are two of the more than 60,000 Americans who have succumbed to Covid-19 so far. I can’t help feeling that their deaths were especially senseless. DigDeep, the organization I lead, was working to install indoor plumbing for Mary Ann Welch through our Navajo Water Project. Just days after surveying her home, we were forced to suspend operations because of the pandemic. If we had completed that work, perhaps they’d be alive. More than 2.2 million Americans, through no fault of their own, lack access to the clean running water and basic indoor plumbing the rest of us take for granted. Every state is home to entire communities facing this virus without being even able to wash their hands, but the federal government has yet to form an emergency response that addresses their safety.” [The New York Times, 5/2/20 (=)]

 

 

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