Clean Water Act

 

'I'm Not The Bad Guy Here': Eastern Oklahoma Mine Operator Stands Firm Against Clean Water Act Legal Challenges. According to Tulsa World, “Agravel mine operator who faces a contempt hearing over a Clean Water Act case that he lost in federal court, as well as a second lawsuit on the same grounds, is standing resolute. ‘I’m being shown to be the bad guy on this deal, and I’ve done nothing wrong,’ said Brad Eastman, owner of Ozark Materials River Rock. ‘Everything I did followed the permits and was lawful. I’m definitely not the bad guy here.’ Regardless, seven years of battling Saline Creek landowner David Beckham resulted in a court order handed down by U.S. District Judge John Dowdell in June 2018 that levied a $35,000 fine plus $40,000 in attorney fees. The ruling also required establishment of a conservation easement on the property with restoration to be carried out by the miner under the supervision of the Cherokee Nation along the once-pristine Saline Creek, a tributary of Hudson Lake near Salina. Eastman apparently has fallen behind on those measures and faces a contempt hearing Sept. 9 in Dowdell’s Tulsa courtroom. ‘I just don’t have the money to pay all these bills, but that’s what they’ve been trying to do from the start. They want me broke. They want me shut down completely,’ he said.” [Tulsa World, 8/29/20 (=)]

 

Permits & Certifications

 

Environmental Groups Sue EPA For Reducing Local Oversight Of Waterways. According to Santa Fe New Mexican, “Three conservation groups have sued the Environmental Protection Agency over rule changes reducing state and tribal oversight of projects that may harm local waterways. Taos-based Amigos Bravos joined the Natural Resources Defense Council and the Waterkeeper Alliance in filing a lawsuit this week against the EPA for revamping the Clean Water Act’s 401 section, which defines states’ authority in federal pollution permitting. This lawsuit comes after a coalition of 21 state attorneys general, including New Mexico’s, sued the EPA last month over the agency’s rule changes, which went into effect July 13. The changes most under fire limit the conditions that a state can impose on a project’s permit to protect waterways, tightens the time frame that data and public comments can be collected on a project and makes it easier for federal agencies to overrule the state. ‘In the end we’re going to have less authority, less power and less voice for the local community … and less protection for our waterways,’ said Frank Holleman, an attorney for the Southern Environmental Law Center, which is representing the conservation groups. ‘It’s an approach that no administration going back to the Nixon administration has ever attempted before.’” [Santa Fe New Mexican, 8/28/20 (=)]

 

Reuters | Court Rejects Bid To Halt Kinder Morgan Gas Pipeline. According to The New York Times, “A nearly-complete $2.3 billion pipeline to carry natural gas from West Texas shale fields to the U.S. Gulf Coast can move ahead, a U.S. judge in Austin, Texas, ruled on Friday, rejecting an environmental group’s effort to halt the project. Sierra Club in April challenged federal approval of the 428-mile (689 km) Kinder Morgan Inc pipeline, alleging regulators reviews under a streamlined process were faulty. The line’s path crosses areas with two endangered species and some 400 wetlands, lawyers wrote. The U.S. Army Corps of Engineers, which issued permits for the Permian Highway pipeline, said no further reviews are needed. The project is more than 85% mechanically complete, Kinder Morgan has said. A spokesperson did not immediately reply to a request for comment. ‘We are disappointed that the court declined to put an immediate stop to this illegal construction, and we are evaluating our options,’ said Sierra Club attorney Joshua Smith.” [The New York Times, 8/28/20 (=)]

 

Corps Asks 9th Circuit To Undo Ruling On Keystone Pipeline ESA Violation. According to InsideEPA, “The Army Corps of Engineers is asking the U.S. Court of Appeals for the 9th Circuit to reverse a lower court ruling that found the Corps violated the Endangered Species Act (ESA) when it allowed the use of a wetlands general permit for construction of the Keystone XL pipeline, arguing the lower court made several errors. ‘The district court’s broad and highly disruptive order lacks any sound basis in the ESA,’ the Department of Justice (DOJ) says on the Corps’ behalf in its Aug. 26 opening merits brief in Northern Plains Resource Council, et al. v. Army Corps of Engineers, et al. ‘And even if the court had correctly identified an ESA violation, its order was overbroad, procedurally improper, and unsupported by the record -- as the Supreme Court necessarily concluded when it stayed that order in all respects except as applied to Keystone XL. The order should be reversed,’ DOJ adds. The appeal contests an April ruling by Judge Brian Morris of the U.S. District Court for the District of Montana that found the Corps should have initiated an ESA Section 7(a)(2) consultation before it reissued Clean Water Act nationwide permit 12 (NWP 12) in 2017, and that the Corps’ failure to do so violated the ESA. As a remedy, Morris vacated NWP 12, remanded it to the Corps, and enjoined the Corps from authorizing any dredge or fill activities under NWP 12. But he modified the remedy in May, following opposition from the Corps and industry, to prohibit only the construction of new oil and gas pipelines while allowing other projects governed by the permit to proceed.” [InsideEPA, 8/28/20 (=)]

 

California, Blue States Sue Over Trump NEPA Rule. According to Politico, “More than 20 states sued the Trump administration on Friday over its changes to the federal National Environmental Policy Act regulations (Reg. 0331-AA03). The legal challenge is California’s 100th lawsuit against the Trump administration, including the 51 that focus on environmental issues. The Trump administration pared back NEPA permitting requirements in July in a bid to speed up the review of big projects like oil pipelines and highways. The move will shorten the timelines for conducting environmental reviews and could reduce the need to consider the effects of climate change. Details: The states are expected to argue that the rule ‘abandons informed decision making, public participation, and environmental and public health protections,’ according to California Attorney General Xavier Becerra’s office. The suit will be filed in the U.S. District Court for the Northern District of California. ‘With today’s challenge, our goal is simple: preserving the public’s voice in administration decision-making as federal projects threaten to harm the health of our families in our own backyards,’ Becerra said in a statement. The coalition: The suit includes 21 states: California, Washington, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Wisconsin. Also on the suit are the District of Columbia, Guam, the City of New York and Harris County, Texas.” [Politico, 8/28/20 (=)]

 

States Take Aim At Trump's NEPA Overhaul In Court. According to E&E News, “A coalition of 21 states, the District of Columbia and Guam today called on a federal court to strike down the Trump administration’s changes to the implementing rules for a bedrock environmental statute. The lawsuit, filed in the U.S. District Court for the Northern District of California, argues that the Council on Environmental Quality’s revisions to National Environmental Policy Act regulations undermine vulnerable communities’ power to get involved in decisionmaking on pipelines, bridges and other major projects. ‘With today’s challenge, our goal is simple: preserve the public’s voice in government decision-making as federal projects threaten to harm the health of our families in our own backyards,’ California Attorney General Xavier Becerra (D) said in a statement. The legal challenge is Becerra’s 100th against the Trump administration, according to his office. The California attorney general has been a leading opponent of the president’s efforts to unwind environmental protections.” [E&E News, 8/28/20 (=)]

 

TMDL

 

$10 Million In Grants Available For 'Farm Sustainability'. According to Bloomberg Environment, “Pa. Agriculture Secretary Russell Redding on July 31 announced the availability of $10 million in tax credits to Pennsylvania farmers for measures to improve soil and water quality. Tax credits are available through Pennsylvania’s nationally recognized Resource Enhancement and Protection Program (REAP), which was expanded under the 2019 PA Farm Bill. REAP is a Pennsylvania tax credit program for agricultural producers who implement best management practices (BMP) or purchase equipment that reduces nutrient and sediment runoff, enhancing soil and improving the quality of Pennsylvania’s waterways. … Farmers may receive REAP tax credits of 50 to 75 percent of the project’s eligible out-of-pocket cost. Farmers whose operation is in a watershed with an EPA-mandated Total Maximum Daily Load (TMDL) can receive REAP tax credits of 90 percent of out-of-pocket costs for some projects. … Since the program began in 2007, REAP has awarded tax credits to more than 5,500 projects totaling over $100 million. Improvements from these projects have kept more than 5 million pounds of nitrogen, 250,000 pounds of phosphorus, and 250,000 tons of sediment out of streams and rivers in Pennsylvania and the waterways they feed. Private investments in REAP have also contributed to the conservation projects, which in total are worth nearly $250 million.” [Bloomberg Environment, 8/27/20 (=)]

 

Vermont Agricultural Water Quality Partnership (VAWQP) Highlights Clean Water Gains. According to VT Digger, “As National Water Quality Month comes to an end, the Vermont Agricultural Water Quality Partnership (VAWQP) celebrates the progress that has been made in protecting Vermont’s water quality, while looking forward to water quality improvements yet to be accomplished. The leadership of the VAWQP is encouraged by data indicating measurable results in water quality improvement, thanks to farmer efforts and a strong conservation commitment from the partnership. The Vermont Agency of Natural Resources, a VAWQP member organization, released its annual performance report which showed that state and federal funding programs, coupled with water quality regulations, prevented an estimated 16.4 metric tons of phosphorus from entering Lake Champlain last year. Specifically, in the agricultural sector, farmers have already achieved 11% of the agricultural phosphorous reduction requirements in the Lake Champlain phosphorus reduction plan, or TMDL. The stewardship efforts of Vermont’s farming community represented 97% of the overall watershed phosphorous reduction reported in Lake Champlain in the year 2019.” [VT Digger, 8/28/20 (=)]

 

Water Pollution

 

Drinking Water

 

EPA Advisers Warn Of ‘Low Confidence’ In Asbestos Risk Study. According to Politico, “An EPA panel of advisers on Friday dinged the agency’s draft study of the risks posed by asbestos, complaining that the agency has not studied certain types of asbestos or all the ways in which people are exposed, leaving the study ‘deficient.’ Background: EPA’s draft risk evaluation for asbestos released in March flagged risks from the only remaining use of imported asbestos in the U.S. — to make diaphragms used by some chlorine-production facilities. The agency also found risks from some imported asbestos-containing products such as auto parts. The report: In a peer review released on Friday, EPA’s Science Advisory Committee on Chemicals criticized the draft evaluation for being too narrowly crafted and ignoring several types of asbestos, exposure pathways and health risks. ‘EPA’s environmental and human health risk evaluations for asbestos was not considered adequate and resulted in low confidence in the conclusions,’ the report said. The SACC noted that EPA studied only exposures to chrysotile asbestos, the most common of the six asbestos fibers, and it recommended EPA look at other fiber types. It also called on EPA to study additional exposure sources, including via drinking water and in talc, and ‘legacy’ uses such as ‘the huge existing reservoir of asbestos-containing building materials’ around the U.S. Without considering all of those sources, ‘the estimate for total exposure to asbestos is deficient,’ the report said.” [Politico, 8/28/20 (=)]

 

GM Succeeds In Sinking Claims In Drinking Water Pollution Suit. According to Bloomberg Environment, “General Motors Co. scored a legal victory when a Michigan state court dismissed most of a lawsuit alleging the auto giant polluted drinking water wells near the legendary Proving Ground test track. A complaint blaming GM for alleged run-off of chemicals used at the track was filed long after the legal windows for the claims, known as the statutes of limitations, the unanimous three-judge Michigan Court of Appeals panel ruled Thursday. The Milford Proving Ground, opened in 1924, is a sprawling compound where GM tests vehicles for crash safety and pushes horsepower on company-maintained roads. A group of nearby homeowners...” [Bloomberg Environment, 8/28/20 (=)]

 

PFAS

 

California Lawmakers Vote To Phase Out Toxic Firefighting Foam. According to Los Angeles Times, “California lawmakers voted Sunday to phase out the sale and use of firefighting foam containing toxic chemicals that have been linked to cancer and have contaminated drinking water throughout the state. The measure, put forward by state Sen. Ben Allen (D-Santa Monica), requires municipal fire departments, chemical plants and oil refineries to gradually stop using the foam, replacing it with alternatives that don’t contain perfluoroalkyl and polyfluoroalkyl substances, a class of chemicals commonly known as PFAS. Scientists have called PFAS ‘forever chemicals’ because they persist indefinitely and accumulate in the human body. Exposure to them has been linked to kidney and testicular cancer, as well as high levels of cholesterol, thyroid disease and other serious health problems. These chemicals have been used for decades in household products including nonstick pans, stain-resistant furniture and food packaging. But a significant amount of drinking-water contamination comes from their use in firefighting foam, which has been widely employed on military bases, at airports and at industrial sites. Some fire departments keep it on hand to quickly extinguish car or airplane fires.” [Los Angeles Times, 8/30/20 (=)]

 

Plastic Pollution

 

Big Oil Is In Trouble. Its Plan: Flood Africa With Plastic. According to Tampa Bay Times, “Confronting a climate crisis that threatens the fossil fuel industry, oil companies are racing to make more plastic. But they face two problems: Many markets are already awash with plastic, and few countries are willing to be dumping grounds for the world’s plastic waste. The industry thinks it has found a solution to both problems in Africa. According to documents reviewed by The New York Times, an industry group representing the world’s largest chemical makers and fossil fuel companies is lobbying to influence United States trade negotiations with Kenya, one of Africa’s biggest economies, to reverse its strict limits on plastics — including a tough plastic-bag ban. It is also pressing for Kenya to continue importing foreign plastic garbage, a practice it has pledged to limit. Plastics makers are looking well beyond Kenya’s borders. ‘We anticipate that Kenya could serve in the future as a hub for supplying U.S.-made chemicals and plastics to other markets in Africa through this trade agreement,’ Ed Brzytwa, the director of international trade for the American Chemistry Council, wrote in an April 28 letter to the Office of the United States Trade Representative.” [Tampa Bay Times, 8/30/20 (=)]

 

Editorial: Nurdles Are Pollution, And A Bianca Spill Cleanup Should Happen. According to The Advocate, “Most of us might not know what to call the small bits of plastic, but we know what to call it when we see these pieces — pollution. There’s a big, nauseating mess and no one responsible is paying enough attention and taking action. They’re nurdles, pre-production pellets used by companies for packaging as an economical method to move large amounts of plastic to end-use manufacturers across the Gulf of Mexico and oceans away. The Gulf has one of the highest concentrations of plastic pollution in the world, according to Mark Benfield, an oceanographer and plastic pollution expert at LSU’s School for the Coast & Environment. This marine plastic pollution is a big issue in our region, perhaps more than other places where there are nurdles, because there’s so many of them traveling our waterways. Just weeks ago, cargo ship CMA CGM Bianca spilled millions or billions of nurdles in the mighty Mississippi River around New Orleans. They started floating around, and many found their way onto both banks of the river. No shipping company, agency or operation has been held responsible. No fines have been issued. No penalties have been levied. No one has been asked, or told, to clean up the mess. Somehow on Aug. 2, the ship broke from its Napoleon Avenue Wharf moorings during a thunderstorm, causing a big container of nurdles to spill out of sacks into the river waters. For whatever reason, port officials decided, oh well, the nurdles were ‘irretrievable.’ Eventually, Benfield told The Advocate, the nurdles would simply float and flow out to sea where some of them would be eaten by fish and other marine life.” [The Advocate, 8/31/20 (+)]

 

Water Infrastructure

 

Flooding, Pollution, Sprawl And Fragmented Governance — Northeast Ohio’s Water Systems Are Death By A Thousand Drops For Its Poorest Residents. According to Cleveland Scene, “In November 2013, Cleveland Water and the Northeast Ohio Regional Sewer District split up the water and sewer bills being sent to their customers. The effort was framed as an attempt to eliminate confusion. In July 2014, a series of storms overwhelmed the Shaker Heights stormwater sewer system to a point of disrepair. It would eventually cost the city $1 million to fix. In May 2017, Cleveland Heights residents found out that the city’s compliance with an Environmental Protection Agency (EPA) consent decree could quadruple their sewer bills. The cost to avoid ‘Sanitary Sewer Overflows’ would come out of customer’s pay checks. In July 2019, the Sam’s Club and Walmart stores near the border of Parma and Brooklyn flooded. In this case, the flooding was unique: It hadn’t rained there at all. In February 2020, a Cleveland woman named Pat showed me an outstanding sewer bill, desperate for help. The bill was up to $132, and she was starting to consider not paying the water bill so she could pay a bit of the sewer one. Hoping to avoid becoming another one of Cleveland’s 50,000 or so shutoffs, or one of the more than 10,000 homes on which the water department has placed liens in recent years, Pat was looking for assistance. ‘I keep trying to talk to someone,’ she told me. ‘When they were all in one bill, I could manage it. This is too much. I don’t know what to do.’ It’s hard to imagine a connection between those things, separated by years and miles, beyond the fact that they all involve water. But they are connected, largely through Cuyahoga County’s Manifest Destiny charge to develop every square mile of land, which has altered the amount of water that moves across the area, and the impact this water has on larger systems.” [Cleveland Scene, 8/28/20 (+)]

 

Flooding

 

US Adapts To Climate Threats With Drastic Shift In Flood Strategy. According to New York Post, “As hurricane season enters its most dangerous period, the US is shaking up its strategy to tackle severe flooding, using tax dollars to move entire communities out of harm’s way. While the combination of intense storms such as this week’s Category 4 Hurricane Laura and Tropical Storm Marco may be remarkable, Southern states such as Louisiana and Texas have witnessed the destructive forces of the systems firsthand. Although a shift in policy that was once viewed as too extreme to consider, coastal states’ reality has also changed, The New York Times reported Wednesday. Earlier this month, the Federal Emergency Management Agency (FEMA) quietly announced a new $500 million grant program designed to pay for large-scale relocation. The Department of Housing and Urban Development started a similar program for $16 billion in 2019 and the Army Corps of Engineers began to tell local officials that they must agree to force people out of their homes or forfeit federal money for flood-protection projects. Additionally, the state of New Jersey has purchased and torn down some 700 flood-prone homes and, 3,000 miles away, California has instructed its localities to begin planning for relocation of homes — sometimes called managed retreat — away from the coastline.” [New York Post, 8/28/20 (=)]

 

Misc. Waterways

 

A Second Trump Term Would Mean Severe And Irreversible Changes In The Climate. According to Vox, “Earlier this year, the administration gutted Obama’s Waters of the US (WOTUS) rule, removing pollution protections from a wide swathe of wetlands and streams. Over at the Department of Interior, Trump’s first appointee, Ryan Zinke, went on an industry-friendly bender, weakening land and species protections, ramping up oil and gas leasing on public land, and purging senior staff and 4,000 jobs. He eventually resigned amid a hail of ethics investigations — so many the New York Times had to put together a guide — and some are ongoing. Zinke was replaced by oil lobbyist David Bernhardt, who managed to get as far as rolling back a bunch of wildlife protections before also coming under investigation for conflicts of interest. He has held on so far, though, and has a long wish list (there’s a tracker here), with almost every proposed change devoted in one way or another to weakening wildlife protections and expanding oil and gas drilling on public land. A second Trump term will almost certainly see a renewed push for more offshore oil and gas drilling, expanding on the recent opening of the Arctic National Wildlife Refuge. A plan to open virtually all the nation’s coastal waters to drilling was put ‘on hold’ after pushback from courts and coastal communities last year, but it will return, as will further delays for offshore wind projects.” [Vox, 8/27/20 (+)]

 

 

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