Clean Water Act

 

NWPR & WOTUS

 

Judge Tosses Ranchers’ Challenge To Weakened Clean Water Rules. According to Courthouse News Service, “Confusion on the Trump administration’s new rule reducing protections for streams has squashed a rancher’s claim that the Clean Water Act unfairly prohibits him from plowing his Baker County, Oregon, farm. U.S. District Judge Michael Mosman dismissed the rancher’s lawsuit Thursday but left room for him to amend and refile his case. Curtis Martin, a member of Oregon Cattlemen’s Association, claimed the Clean Water Act unfairly prohibited him from plowing in riparian zones on his farm. … ‘What I have here is a case that has evolved from one set of regulations to another, but the case itself hasn’t sufficiently evolved to meet standing requirements,’ Mosman said. ‘Some of those same problems have at least a shot at being curable, so I am dismissing the case for lack of standing but without any prejudice to try again.’ Francois argued that part of the problem with the new rule is that it forces farmers and ranchers to hire experts and pay fees to determine if they are prohibited from using their land the way they’d like to. Under the Obama-era rule it replaced, landowners could petition to recoup their costs if they were eventually found to be legally polluting streams or other bodies of water. Under the Trump administration rule, that’s no longer the case. But Mosman on Thursday discarded that argument too. ‘Isn’t that true of millions of people with the tax code?’ Mosman asked. ‘They don’t know if they have to pay a certain tax or if they might qualify for an exemption and so they have to pay a fee to find out? I don’t want to open the door to people having standing if they have to pay to get help to find out whether a complex law applies to them.’” [Courthouse News Service, 8/6/20 (=)]

 

6th Circuit Scraps State Challenge To Obama WOTUS Rule. According to E&E News, “A federal appeals court said yesterday that red states’ lawsuit over the Obama administration’s definition of which streams and wetlands are subject to Clean Water Act protections should be dismissed as moot. Continuing to litigate the 2015 Clean Water Rule — which the Trump administration has since rewritten — would be overkill, the 6th U.S. Circuit Court of Appeals said in an opinion led by Judge Raymond Kethledge. ‘During the 1930s, Winston Churchill was asked what Britain should do if Stanley Baldwin — then Lord President of the Privy Council, and a notorious advocate of appeasement — were to die in office,’ wrote Kethledge, a George W. Bush appointee. ‘Embalm, bury, and cremate,’ Churchill answered. ‘Take no chances!’ ‘The plaintiff States advocate a similar tack for the ‘Clean Water Rule’ here,’ Kethledge wrote. Ohio and Tennessee, the challengers in the case, had asked the 6th Circuit to keep their lawsuit alive in case another court decides to strike down the Trump administration’s Navigable Waters Protection Rule, which replaces the 2015 regulation. At least one other court has agreed to keep litigation over the Obama-era rule on ice pending the outcome of lawsuits over the Trump regulation. The 6th Circuit found that the only way the 2015 rule would come back into play for Ohio and Tennessee is if both the Trump administration’s repeal and replacement rules are dismantled nationwide.” [E&E News, 8/6/20 (=)]

 

6th Circuit Finds Two States’ Appeal Over Obama-Era WOTUS Rule Moot. According to Inside EPA, “The U.S. Court of Appeals for the 6th Circuit has denied Ohio and Tennessee’s request to preliminarily enjoin the since-repealed Obama-era waters of the United States (WOTUS) rule, finding the states’ interlocutory appeal of the issue is now moot but remanding the case back to the district court for further proceedings. The unanimous Aug. 5 opinion written by Judge Raymond M. Kethledge on behalf of himself, Chief Judge R. Guy Cole Jr. and Senior Judge David W. McKeague compares the states’ efforts to a take-no-chances tactic once advocated by Winston Churchill in the 1930s but rejects that approach. ‘During the 1930s, Winston Churchill was asked what Britain should do if Stanley Baldwin -- then Lord President of the Privy Council, and a notorious advocate of appeasement -- were to die in office. ‘Embalm, bury, and cremate,’ Churchill answered. ‘Take no chances!’ The plaintiff States advocate a similar tack for the [2015 rule] here,’ the ruling says while noting that the Trump administration has since repealed the 2015 rule and replaced it a narrower WOTUS definition in 2020. ‘Yet the States now appeal the district court’s refusal to enjoin it as well. We dismiss the appeal as moot,’ Kethledge says.” [Inside EPA, 8/6/20 (=)]

 

Permits & Certifications

 

Industries Urge EPA To Maintain ‘Non-Discretionary’ Position On 404 Permits. According to Inside EPA, “Industry and free-market groups are urging EPA to maintain its current policy position that Endangered Species Act (ESA) consultations are not required before allowing states to assume Clean Water Act (CWA) wetlands permitting, and are calling on the agency to reject an alternative interpretation advanced by Florida officials. The debate over whether the agency should reconsider its position that state assumption of CWA section 404 dredge-and-fill permitting is a non-discretionary action -- and thus no ESA section 7 consultation is required before assumption -- comes as the Florida Department of Environmental Protection (FDEP) is hoping to soon finalize the assumption process. EPA Region 4 announced Aug. 5 that it has signed a memoranda of agreement with Florida that will be one part of a larger package of documentation the state plans to send to EPA as part of a formal assumption request. EPA’s current position, outlined in a 2010 letter to the Environmental Council of the States and the Association of State Wetland Managers, relies heavily on the Supreme Court’s 2007 ruling in National Association of Home Builders v. Defenders of Wildlife. In that case, the high court said the delegation to states of CWA section 402 permitting is mandated and non-discretionary once a state has met the criteria set forth in section 402(b). Therefore, the court said, the transfer of 402 permitting authority does not trigger ESA section 7(a)(2)’s consultation and no-jeopardy requirements.” [Inside EPA, 8/6/20 (=)]

 

States Split Over ESA Consultation Mandate Before Assuming 404 Permits. According to Inside EPA, “States are split over whether EPA should reconsider its position that Endangered Species Act (ESA) consultations are not required before allowing states to assume Clean Water Act (CWA) wetlands permitting, with the divide appearing to relate to whether states are exploring assumption or are already issuing dredge-and-fill permits. The debate over a potential policy change, outlined in recent comments to EPA, is also reflected in positions taken by environmental and industry groups, where environmentalists believe ESA consultation should occur but oppose limiting that consultation to a one-time effort and where industry groups support the status quo. The Michigan Department of Environment, Great Lakes and Energy -- the only state agency other than the New Jersey Department of Environmental Protection to have assumed CWA section 404 permitting -- opposes EPA changing its position that approval of such state permitting programs is non-discretionary. ‘EPA’s current position allows the EPA, [the Fish and Wildlife Service (FWS),] and states flexibility on how to best address ESA concerns in state Section 404 programs while requiring states to be as stringent in its operation,’ Michigan says in July 6 comments. ‘In other words, the resulting protection is the same or better as what [ESA] Section 7 consultation would provide while providing flexibility to the states. This is consistent with the other requirements for state Section 404 programs as outlined in federal regulations.’” [Inside EPA, 8/6/20 (=)]

 

Nev. Firm Pauses Gold Mine Expansion. According to E&E News, “Nevada’s largest gold miner has asked to halt the permitting process for a mine expansion project plagued by water use and endangered species concerns. Nevada Gold Mines asked the Bureau of Land Management to postpone permitting for its Long Canyon mine expansion while the firm studies how to reduce effects on hydrology in northeast Nevada. Environmental groups and the Confederated Tribes of the Goshute Reservation have long warned that expanding the open-pit mine threatens to dry up springs and groundwater in the arid region. Nevada Gold Mines ‘intends to complete additional studies and planning to reduce the impacts of the project specifically by improving the dewatering and water infiltration plans,’ Long Canyon general manager Julius Stieger wrote in a letter last week. It will then seek to restart the environmental review process with BLM, he added. Extending the mine depth to below the water table requires extensive dewatering, the Center for Biological Diversity claimed in a June lawsuit (Greenwire, June 2). The group sued the Fish and Wildlife Service for delaying a decision on whether to list the relict dace — a minnowlike fish — under the Endangered Species Act. A unique population of the relict dace lives in Johnson Springs, next to the Long Canyon mine. ‘The imperiled fish, mule deer and greater sage grouse that rely on these springs can breathe a sigh of relief,’ the Center for Biological Diversity’s Scott Lake said in a news release.” [E&E News, 8/6/20 (=)]

 

Feds' Approval Of AK Mine Raises Concerns For Salmon, Environment. According to Public News Service, “Conservation, tribal and fishing groups are condemning the Army Corps of Engineers’ recommendation to permit the Pebble Mine in Bristol Bay, Alaska. The groups said the open-pit mine operation would have dire consequences for some the world’s most productive salmon streams. Steve Cohn, director of The Nature Conservancy in Alaska, said the Army Corps’ final Environmental Impact Statement did not adequately evaluate the project. ‘There are a number of factors at play that just make this the wrong mine in the wrong place,’ said Cohn. ‘It’s an extremely wet environment, seismically active. It’s a proposed mine that straddles three watersheds and it’s a globally significant ecosystem.’ The Army Corps’ final analysis said the mine would not cause significant harm to the watershed. More than half of the world’s sockeye salmon come from Bristol Bay. The mine has implications for the entire Northwest. The salmon industry generates $493 million a year in the region. Norman Van Vactor, CEO of the Bristol Bay Economic Development Corporation, said all the major salmon processors are headquartered in the Pacific Northwest, specifically Seattle, and Bristol Bay draws workers. ‘Probably close to two-thirds of the participants that are fisherman harvesters call the Pacific Northwest, Seattle and Oregon, their home,’ said Van Vactor.” [Public News Service, 8/6/20 (=)]

 

Editorial: Sidestepping Environmental Reviews Is Bad Policy. According to Muskogee Phoenix, “Oklahoma Sens. James Lankford and Jim Inhofe joined their Texas colleagues and others this week to introduce a bill that would short-circuit environmental laws already undermined by short-sighted policies that place short-term profits above long-term security. The bill purportedly would clarify the nationwide permit process and procedures used by the U.S. Army Corps of Engineers to ensure compliance with key environmental laws. Oklahoma’s senators say the bill is necessary to ensure infrastructure projects are not delayed by regulatory reviews required by the Endangered Species Act and Clean Water Act. Lankford said Americans ‘are the ones who suffer when responsible infrastructure projects are delayed or denied.’ Inhofe, seeking re-election this year — said the measure would prevent ‘liberal activists’ from hijacking ‘the federal permitting process’ and help ‘energy producers here at home ... meet the increased demand.’ While those arguments might sound appealing, the logic is flawed. Regulatory reviews are required to protect natural resources like water, which are necessary to support life and commerce. Spoiling these natural resources by making hasty decisions that jeopardize the long-term health of Americans, their quality of life and ability to sustain their livelihoods is not worth the short-term profits of one or two corporations and the comparatively few corporate shareholders.” [Muskogee Phoenix, 8/6/20 (+)]

 

Op-Ed: The Fight For Lake Michigan. According to Holland Sentinel, “Recently, these successful regulations have been weakened because they are ‘too complicated’ for those in various industries to manage. To be sure, bureaucracies can make compliance challenging. But surely we can support steel production and protect steel workers’ jobs without giving up the precious source of all life that is clean water. The Burns Harbor, Ind., steel plant, for example — the one that caused a discharge of cyanide and ammonia above the legal limit — has done so 100 times since 2015. Meanwhile, according to an independent risk assessment led by Michigan Technological University, the oil pipeline embedded underneath Lake Huron and Lake Michigan regularly spills oil and is in danger of a major rupture. Enbridge, the company that owns the pipeline, has provided no assurance that it has the financial resources for a billion dollar cleanup. Without the support of the EPA, states will be responsible for monitoring pollution of the Great Lakes, and cities will be left to maintain the infrastructure that safeguards their waterways. In fact, the federal share of spending for safe water has been dropping since the ‘80s, while the share of funding coming from state and city budgets has grown significantly. For water infrastructure alone, this represents a drop from 63 percent of total spending in 1977 to 9 percent in 2014. Rather than further tax residents, cities have been asking the EPA for permission to discharge greater amounts of raw sewage into public waterways, including the Great Lakes. This is where the Supreme Court comes in. In the County of Maui v. Hawaii Wildlife Fund, the county was sued for polluting the ocean with the discharge of its wastewater into groundwater that flows into the Pacific. The County argued that groundwater was not protected by the Clean Water Act, but the Court disagreed.” [Holland Sentinel, 8/6/20 (=)]

 

Water Pollution

 

Drinking Water

 

Judge Rejects Calls To Rule In Fluoride Suit, Renewing Push For New Petition. According to Inside EPA, “The federal judge presiding over the novel challenge to EPA’s denial of a TSCA petition seeking to ban drinking water fluoridation is rejecting the parties’ calls to rule on the merits and renewing his plan for them to redo the petition process to consider new science on fluoride’s adverse effects since the plaintiffs’ first petitioned EPA in 2016. During an Aug. 6 status conference in the case Food & Water Watch, Inc., et al. v. EPA, Judge Edward Chen of the U.S. District Court for the Northern District of California cited a series of benefits from his plan requiring the plaintiffs to file a new petition and EPA to consider it, including giving the plaintiffs a new opportunity to bolster their standing in the case and allowing the National Toxicology Program (NTP) to advance a long-awaited monograph on fluoride’s neurodevelopmental risks. ‘I’m just saying [the upcoming NTP study is] another reason why it makes sense, frankly, to spend this time allowing the agency to take a second look [at a new petition and] allowing plaintiffs to straighten out the standing issue [in a new petition], which I also think is very serious,’ Chen said. ‘And then, if we have to come back here, if the agency does not take any action and the plaintiffs decide they want to take it up there’ll be a mechanism [for that].’” [Inside EPA, 8/6/20 (=)]

 

Toxic Algae

 

Environmentalists Worry Green Algae Clogging Local Rivers Is Being Made Worse By Climate Change. According to WCVB-TV, “It looks like gunk or slime. It’s thick, green and it is blocking vast swaths of waterway outside of Boston. This scum, filamentous green algae, is nontoxic but takes oxygen away from fish and other wildlife. Experts say it is a situation driven by climate change. ‘Hotter summers, droughts, and when you have very little flow in the river, that makes the problem worse,’ said Alison Field-Juma, executive director at OARS, a nonprofit organization dedicated to the Assabet, Sudbury and Concord rivers. ‘It’s wreaking havoc with nature’s HVAC system. It’s turning up the thermostat, it’s turning off the sprinklers,’ said Lisa Vernegaard, executive director of Sudbury Valley Trustees. Strong winds from Tropical Storm Isaias pushed the blooms a bit to the side the earlier this week, but environmentalists want to push them out of the way for good. They say that making the change will take a concerted effort from people who live in the towns around the Assabet, Sudbury and Concord rivers. ‘If collectively we reduce or even stop fertilizing our lawns, that’s not a hard thing to do,’ Vernegaard said. ‘Every water body needs to have some nutrients because you want it to be able to feed the aquatic life, right? But this has just got way too much,’ Field-Juma said. ‘And we will get fish kills if the water temperature is high and the oxygen is depleted by all of this vegetation.’ Vernegaard and Field-Juma point out that the Clean Water Act has helped to make significant progress in recent years, but they say there’s still a long way to go.” [WCVB-TV, 8/6/20 (=)]

 

Wastewater

 

AP | Calif. Bottled Water Company To Pay $5M For Violations. According to E&E News, “A California company that produces Crystal Geyser bottled water was sentenced yesterday to three years of probation and ordered to pay $5 million in fines for illegally storing and transporting hazardous waste, federal prosecutors said. The waste was produced by filtering arsenic out of Sierra Nevada spring water at CG Roxane LLC’s facility in the Owens Valley, authorities said. Prosecutors noted that the investigation focused on handling, storage and transportation of CG Roxane’s wastewater, ‘not the safety or quality of CG Roxane’s bottled water.’ The company pleaded guilty in January to one count of unlawful storage of hazardous waste and one count of unlawful transportation of hazardous material, the U.S. Attorney’s Office said. The company used sand filters to reduce the concentration of naturally occurring arsenic in the spring water to meet federal standards. CG Roxane was accused of discharging the wastewater into a manmade pond for about 15 years. Pond sampling by local water quality officials in 2013 found arsenic concentrations above the hazardous waste limit, as did subsequent sampling by state authorities and the company, prosecutors said.” [E&E News, 8/6/20 (=)]

 

Water Infrastructure

 

Op-Ed: A Neglected Environmental Justice Issue: Indoor Plumbing. According to The Hill, “It’s 2020 in one of the world’s wealthiest nations, yet some 2 million rural Americans lack access to adequate plumbing or sanitation — the running water and flushing toilets that most of us take for granted as essential to a decent life. Millions more are unable to obtain, or afford, clean drinking water. Amid a national reckoning on race, we’ve seen new attention paid to environmental justice issues. Low-income communities and people of color are more likely to live in the shadow of power plants and other polluting facilities; they are also hit first and worst by the floods and heat waves of a changing climate. Access to clean water and sanitation is also a crucial environmental justice issue, but it is neglected in current policy and funding. This year’s House EPA appropriation, which the Senate will surely reject as too ‘generous,’ does little more than nod in the right direction. It includes a provision authorizing $13 billion in ‘emergency’ funding for EPA without even mentioning environmental justice. It adds nothing to two paltry environmental justice grant programs that currently limit funding for our nation’s thousands of overburdened communities to $2.1 million. The House bill continues funding for a pair of existing federal programs that provide grants for basic drinking water and sanitation infrastructure — but those programs are far too limited to address the problem.” [The Hill, 8/6/20 (=)]

 

Western Water

 

Oregon: The Snowpack Story. According to National Geographic, “Climate change is certainly affecting snowpack, but a recent study suggests that natural weather variations may have shielded the Cascade Mountains from the full impacts of global warming. While snow stations have recorded a snowpack decline, the warming of the U.S. by more than 32 degrees Fahrenheit should have caused a more significant drop in snowpack, perhaps by as much as 54 percent over the last 35 years. If the weather changes and the shielding effect ends, the consequences could be serious for the snowpack: Oregon’s snow starts to form when it is close to freezing, so even a little warming could change snowfall into rainfall. Winter rain is better than no rain, but it can cause flooding and would need new infrastructure to be built to channel, capture, and store the excess water for the summer—something snowpack has done naturally for millennia.” [National Geographic, 8/6/20 (+)]

 

Misc. Waterways

 

Science, Water, Air Rules Top EPA 2020 Priorities. According to Inside EPA, “EPA Administrator Andrew Wheeler is highlighting several key rules that he hopes to finalize by the end of 2020 as priority items for the agency’s agenda, while adding that he is also developing an agenda for the agency for a potential second term under President Donald Trump. In Aug. 6 remarks to reporters, Wheeler said that EPA plans to complete several major rules: its science ‘transparency’ rule, updates to cost-benefit procedures for air policies, the lead and copper drinking water rule, and reviews of ambient air quality standards for ozone and particulate matter. The agenda for the rest of the year ‘is the same as it has been,’ he said. Wheeler made the comments after announcing the agency is providing a $235 million Water Infrastructure Finance and Innovation Act (WIFIA) loan to Miami-Dade County, FL, to help finance improvements and expansion of wastewater treatment facilities, making the county the only entity to have received three WIFIA loans. The loan is the ninth WIFIA loan EPA has finalized since the COVID-19 pandemic began limiting some agency operations in March, a point Wheeler emphasized as evidence EPA has not been ‘closed’ over the past several months. While Wheeler did not detail the agency’s priorities in a potential second term for the Trump administration, he has previously outlined some of them, including the revision of each program office’s approach to cost-benefit analysis by 2022 and to science transparency by 2023.” [Inside EPA, 8/6/20 (=)]

 

 

Please do not respond to this email.

If you have questions or comments please contact mitch@beehivedc.com