Clean Water Act

 

NWPR & WOTUS

 

White House Clears Rule Reining In States' Water Veto Authority. According to Politico, “The White House has wrapped up review of a final rule aimed at limiting states’ power to veto infrastructure projects like pipelines and coal export terminals. The final rule could be made public as soon as today. It updates regulations governing the implementation of a Clean Water Act provision that requires states to certify whether a project will interfere with its ability to meet water standards when project sponsors seek federal permits like those allowing pipelines to cross streams. If a state decertifies a project, it cannot receive a federal permit. President Donald Trump called for the new rule limiting that authority after states lead by Democratic governors like New York and Washington used it to block the construction of energy infrastructure projects within their borders.” [Politico, 5/29/20 (=)]

 

Permits & Certifications

 

9th Circuit Denies Stay Of NWP Ruling Barring New Pipeline Construction. According to Inside EPA, “In a major setback for the energy sector and Trump administration, an appellate court has denied an emergency request from the Justice Department (DOJ) and industry to stay a landmark district court ruling that vacated the federal Clean Water Act (CWA) general permit for constructing new oil and gas pipelines. DOJ and the industry parties ‘have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal,’ the U.S. Court of Appeals for the 9th Circuit says in a brief May 28 order. The case, Northern Plains Resource Council, et al. v. Army Corps of Engineers, has drawn national attention due to the broad impacts of the lower court’s vacatur of CWA nationwide permit 12 (NWP 12) and the potential for Supreme Court review of whether district courts can issue national injunctions. The permit’s vacatur means pipeline developers will no longer have the option of using the streamlined general permit and will instead have to seek CWA coverage under more-cumbersome individual permits. DOJ, a coalition of natural gas associations, and TC Energy, the company building the Keystone XL pipeline, all sought a stay of rulings from the U.S. District Court for the District of Montana that found the Army Corps of Engineers violated the Endangered Species Act (ESA) when it promulgated NWP 12. The district court initially vacated the use of NWP 12 for all pipeline and other utility line construction projects but later narrowed the vacatur to only prohibit the construction of new oil and gas pipelines, allowing maintenance of existing pipelines and construction of other utility lines to continue.” [Inside EPA, 5/29/20 (=)]

 

EPA To Change Some Clean Water Act Rules. According to The Wall Street Journal, “The Environmental Protection Agency is setting new rules aimed at speeding up Clean Water Act permit approvals that are often a sticking point for pipelines and other major infrastructure projects. The changes implement a proposal the agency made in August. It sets a one-year deadline for states that have permitting authority under the Clean Water Act to take final action on a permit request. It also narrows the scope states have for rejecting permits, limiting it to only water-quality issues, EPA officials said.” [The Wall Street Journal, 6/1/20 (=)]

 

New Mexico Ranchers Seek Partial Injunction To Block Trump WOTUS Rule. According to Inside EPA, “New Mexico ranchers are seeking to block implementation of portions of the Trump administration’s waters of the United States (WOTUS) rule, arguing the rule’s application of the Clean Water Act (CWA) to intermittent tributaries and wetlands that do not directly abut other regulated waterbodies is contrary to Supreme Court precedent. ‘Ranchers will suffer irreparable harm if EPA and the Army are allowed to regulate their private property under the Intermittent Tributary and Non-abutting Wetland Provisions,’ the New Mexico Cattle Growers Association (NMCGA) says in a May 26 motion for preliminary injunction filed with the U.S. District Court for the District of New Mexico, one of several legal challenges over the final rule that narrows the definition of CWA jurisdiction. These provisions will require ranchers to spend months to years, and tens to hundreds of thousands of dollars, to obtain CWA dredge-and-fill permits from the Army Corps of Engineers in order to farm and otherwise use their own land, and the time required to obtain the permits would prevent the ranchers from working their own land, says the motion filed by the free-market Pacific Legal Foundation (PLF) on behalf of the ranchers in NMCGA v. EPA. PLF has long held that the plurality opinion written by the late Justice Antonin Scalia is the prevailing holding of the Supreme Court’s fractured decision in Rapanos v. United States, which set up two competing definitions of WOTUS. Scalia said the CWA extends only to waters that are ‘relatively permanent, standing or continuously flowing’ that share a surface connection with navigable waterways, or to wetlands that are immediately adjacent to such waters.” [Inside EPA, 5/29/20 (=)]

 

Lawsuit: Keystone XL Poses 'Existential Threat' To Tribes. According to E&E News, “Tribes on the Fort Peck Indian Reservation last week launched the latest in a string of legal challenges over federal approvals for the controversial Keystone XL pipeline. The Assiniboine and Sioux tribes on Friday sued in the U.S. District Court for the District of Montana over a pair of permits for the oil pipeline granted by the Bureau of Land Management and the Army Corps of Engineers. The tribes warned that the federal approvals will allow project developer TC Energy Corp., formerly TransCanada Corp., to construct the pipeline beneath the Milk and Missouri rivers in northeastern Montana, in an area just upstream of where the rivers meet to form the southwestern boundary of the Fort Peck reservation. Keystone XL — at its closest point — will pass within about a quarter-mile of the reservation boundary. If an oil spill from the pipeline occurred in the Missouri River, the tribes argued, it could have ‘catastrophic impacts’ for the reservation. They said the two federal agencies ‘refused to acknowledge’ concerns raised by the tribes over the past six years of the environmental review and regulatory process for the pipeline. ‘The authorizations challenged in this action are the newest links in a chain of federal agency decisions that have favored TransCanada’s desire to construct the Pipeline while ignoring, downplaying, or attempting to paper over the Tribes’ longstanding concerns that the Pipeline poses an existential threat to its Reservation, trust resources, and people,’ the tribes wrote in their complaint.” [E&E News, 6/1/20 (=)]

 

Water Pollution

 

Drinking Water

 

EPA IG To Look At Tribal Drinking Water Oversight. According to Politico, “EPA’s Office of Inspector General said it plans to evaluate the agency’s oversight of tribal drinking water systems, including its response to Covid-19. The OIG said it is looking to determine the ‘effects of the EPA’s oversight, including compliance assistance and enforcement activities, on the ability of public water systems in Indian Country to provide safe drinking water to customers,’ and how the agency modified its oversight during the coronavirus pandemic.” [Politico, 6/1/20 (=)]

 

Editorial: Water Is Life. According to Times West Virginian, “If the coronavirus pandemic has taught us one thing, it should be that we have a renewed appreciation for water. Early on when Gov. Jim Justice enacted social distancing, which then led to the stay-home order, water would become a key aspect to slowing community spread of COVID-19. Everyone in the world was told to keep your hands clean, sanitize all frequently used surfaces and take other measures, such as hand sanitizer, to stay clean. Yet, water is something that people in the developed world take for granted. We seem to think it will always be there for us and will always be safe and clean and affordable. However, that’s not always the case in America and, in particular, West Virginia. Last September, the ‘Watered Down Justice’ report compiled by three environmental groups found that 36 of West Virginia’s 55 counties are among the top third worst counties for following guidelines of the Safe Water Drinking Act. The report published by the Natural Resources Defense Council, Coming Clean, and the Environmental Justice Health Alliance analyzed health-based violations of the SDWA that took place between June 1, 2016, and May 31, 2019. They found that 912,650 West Virginia residents consumed water from drinking systems that were out of compliance with the U.S. Safe Drinking Water Act at various points between June 1, 2016, and May 31, 2019.” [Times West Virginian, 5/31/20 (+)]

 

PFAS

 

PFAS-Making Plant Wasn’t Inspected For Years, US EPA Watchdog Says. According to Chemical & Engineering News, “For 8 years, the US Environmental Protection Agency relied solely on company reports to verify that a North Carolina factory controlled releases of the flurochemical GenX, the agency’s internal watchdog says in a report released May 28. The EPA and DuPont agreed in 2009 to the conditions for the company to make GenX, which the company used as a processing aid to produce fluoropolymers. EPA inspectors subsequently did not visit the plant until after local news outlets reported in 2017 on the presence of a GenX-related substance in drinking water supplies for hundreds of thousands of people. The part of the EPA that inspects facilities in North Carolina—the agency’s Atlanta–based southeast regional office—for years was unaware of the 2009 consent order governing GenX production, the EPA Office of Inspector General says in its report. The agency’s chemical safety division, based in Washington, DC, had struck the deal with DuPont. The consent order specifies that the plant ‘shall recover and capture (destroy) or recycle’ GenX and its parent acid—hexafluoropropylene oxide dimer acid (HFPO-DA) fluoride—’at an overall efficiency of 99% from all the effluent process streams and the air emissions.’ Corporate responsibility for complying with the consent order passed to Chemours when DuPont spun off that company in 2015.” [Chemical & Engineering News, 5/29/20 (=)]

 

Water Infrastructure

 

On The Schedule. According to Politico, “House Majority Leader Steny Hoyer laid out the lower chamber’s schedule and procedures for the next two months in a Dear Colleague letter Friday, which detailed action on three ‘must-pass’ bills. ‘Throughout the month of June, legislative work in House committees will be our focus, with committees meeting to hold hearings and to mark up and report legislation,’ Hoyer wrote. ‘Their goal will be to prepare must-pass legislation for consideration on the Floor in late June and going through July,’ including a 2021 National Defense Authorization Act, an infrastructure package that includes reauthorization of expiring surface transportation provisions and a reauthorization of the Water Resources Development Act.” [Politico, 6/1/20 (=)]

 

Editorial: Gov. Whitmer Must Empanel Independent Task Force To Probe Midland-Area Dam Disaster. According to Crain’s Detroit Business, “Gov. Gretchen Whitmer says she needs the ‘experts’ at the Michigan Department of Environment, Great Lakes and Energy to investigate how the breach of a privately owned dam in mid-Michigan caused widespread property damage downstream in Midland. That would normally make sense — except the government agency charged with regulatory oversight of Boyce Hydro Power’s Edenville dam is the same agency the governor has tasked with investigating the Tittabawassee River disaster. This is problematic on so many levels in an era when trust in government couldn’t possibly be any lower. The first glaring problem is EGLE itself — along with the Department of Natural Resources and Attorney General Dana Nessel — had taken the dam’s owner to court three weeks prior the flood. The Whitmer administration didn’t sue Boyce Hydro over the safety of the dam. They sued over unauthorized releases of water that they contend caused ‘the death of thousands if not millions of freshwater mussels,’ according to court records. The governor should reconsider and empanel an independent task force to examine the decision-making inside EGLE as well as the federal agency that struggled for years to get Boyce Hydro to improve the Edenville dam’s spillway in order to handle the kind of big flood that broke the earthen dam on May 19. On Thursday, Whitmer dismissed a reporter’s question about why she hasn’t formed an independent task force similar to former Gov. Rick Snyder’s Flint Water Advisory Task Force. She suggested the origins of the two disasters couldn’t be compared.” [Crain’s Detroit Business, 5/31/20 (+)]

 

Op-Ed: Michigan EGLE Can’t Be Trusted To Probe Its Role On Dam Failures. According to Bridge Michigan, “Gov. Gretchen Whitmer, in directing the Michigan Department of Environment, Great Lakes and Energy to ‘lead an investigation into the causes’ of the Midland dam failures, is inappropriately asking EGLE to investigate itself. For almost five years, I have served as court-appointed co-lead counsel for the proposed Flint water class-action lawsuits pending in state and federal court. The Michigan Department of Environmental Quality (MDEQ), the predecessor agency to EGLE, and its employees are alleged to have contributed to the Flint water crisis by conduct that several state and federal courts have described as conduct that ‘shocks the conscience.’ Attorneys for the residents of Flint are in the process of conducting multiple depositions of current and former MDEQ employees. The depositions establish conclusively that the actions and/or inactions of the MDEQ bureaucrats in 2014 and 2015, through their incompetence, dishonesty and indifference greatly contributed to the chain of events leading to the Flint water disaster. When this case goes to trial, the public will be outraged to learn the Flint catastrophe was entirely preventable and caused by a highly dysfunctional MDEQ.” [Bridge Michigan, 5/30/20 (=)]

 

Flooding

 

IMF Calls For Climate Disclosure, Stress Testing. According to Politico, “The IMF Friday recommended greater disclosure by companies of their potential climate change risks, after finding that equity market valuations were not taking into account rising dangers from natural disasters. The IMF issued the recommendations in a new report focused on equity prices and the ‘physical risks’ of climate change, including storms, floods and droughts. IMF researchers found that ‘investors may be paying insufficient attention to climate variables.’ In the study, the IMF argues that ‘granular, firm-specific information’ on climate change exposure would help lenders, insurers and investors better understand the risks. In addition, the IMF recommended climate change stress testing for financial firms. ‘Because the nature of the risk is long term, and depends on complex interactions between climate variables and socioeconomic developments that are difficult to model, markets may not price future physical risk correctly, potentially leading to capital misallocation and economic inefficiency,’ IMF officials said. ‘Perhaps more important from a financial stability perspective, a sudden shift in investors’ perception of this future risk could lead to a drop in asset values, generating a ripple effect on investor portfolios and financial institutions’ balance sheets.’ The study is likely to fuel emerging efforts to develop new regulations to shield the financial system from looming climate risks.” [Politico, 5/29/20 (=)]

 

Misc. Waterways

 

States Warn That Virus May Doom Climate Projects. According to The New York Times, “Connecticut is preparing to build a first-of-its-kind underground flood wall. Virginia has planned an intricate system of berms, pump stations and raised roads to keep the flood-prone city of Norfolk dry. Louisiana has broken ground on a new community for people forced to flee a village on its sinking coast, the country’s first government-resettled climate migrants. Projects in 13 cities and states, which were part of the Obama administration’s push to protect Americans from climate change after the devastation from Hurricane Sandy, are now in jeopardy because of the coronavirus pandemic, state and local officials warn. And they need Republicans in Congress to save those projects. On Monday, officials are expected to tell lawmakers that the coronavirus will prevent them from meeting the conditions of a $1 billion Obama-era program for large-scale construction projects that defend cities and states against climate-related disasters. That money must be spent by the fall of 2022. Missing that deadline, which officials say is likely because of delays caused by the coronavirus, would mean forfeiting the remaining money, scuttling the projects. States and cities have been moving swiftly in the design phases and to secure permits since the Obama administration awarded the funds in 2016. Officials will ask Congress to extend the deadline for construction by three years, according to a copy of the letter obtained by The New York Times.” [The New York Times, 6/1/20 (+)]

 

 

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