Clean Water Act

 

Carper Seeks IG Inquiry Into EPA Legal Defense Of Water, Climate Rules. According to InsideEPA, “Sen. Tom Carper (D-DE), the top Democrat on the Senate Environment and Public Works Committee, is asking EPA Inspector General Sean O’Donnell to investigate ‘potential irregularities’ with the agency’s legal filings in cases involving controversial greenhouse gas and Clean Water Act (CWA) rules. Carper in a Sept. 15 letter to O’Donnell says the agency’s Office of General Counsel filed six legal briefs in federal appeals courts and three motions in district courts that fail to list an EPA career attorney as the agency attorney of record on the case, something he says that is highly unusual if not unprecedented. ‘The absence of career officials listed on these filings could be regarded as a conspicuous signal that the normal process of obtaining dispassionate legal analysis on these cases, conducted by experienced career EPA attorneys, has been discarded,’ Carper writes. ‘My office has been told by one individual familiar with one of these cases that career attorneys refused to sign the filings because they presented arguments that have no legal merit at all and perhaps represent a violation of Rule 11 of the Federal Rules of Civil Procedure,’ he continued. ‘Given that the three cases in question also relate to some of the most contentious rulemakings in recent years, it is also reasonable to inquire whether the irregularities in filing these briefs are associated with errors or misdeeds in handling these cases or known misstatements of law or fact.’” [InsideEPA, 9/15/20 (=)]

 

Permits & Certifications

 

EPA To Use Streamlined ESA Review In Florida’s Bid To Assume Key Permitting Program. According to Politico, “The Trump administration is opting to do a one-time review of the impact that dredging and filling Florida’s wetlands will have on the state’s 133 endangered species as it considers whether to allow the state to take over the Clean Water Act permitting program. The move, which involves reversing an Obama-era policy position, would allow Florida to bypass laborious Endangered Species Act consultations for highway, housing, mining, utility and other projects if it successfully wins approval from EPA to take over the Clean Water Act 404 program. Environmental groups, alarmed by not only the impact the move would have on Florida, but the precedent it would set for elsewhere, are already preparing to sue. The backstory: Florida is seeking to become only the third state to take over the key wetlands permitting program, behind New Jersey and Michigan, which received approval more than a quarter century ago. The Trump administration under Office of Water Chief David Ross has sought to make it easier for states to assume the program, and Florida’s bid serves as a test case. Many states have expressed interest in taking over the program, but have been deterred in large part since doing so brings an enormous amount of extra work for state agencies without any extra federal dollars to help fund it.” [Politico, 9/15/20 (=)]

 

Whitmer Says Line 5 Easement Decision Coming In ‘Very Near Future’. According to MLive, “An extensive state review of Canadian energy giant Enbridge’s compliance with easement requirements for its Line 5 pipeline under the Straits of Mackinac is wrapping up soon, according to Michigan Gov. Gretchen Whitmer. Whitmer said the Department of Natural Resources (DNR), which holds the easement title, is finishing its review during remarks to the Chicago-based Environmental Law & Policy Center, which held virtual gala on Thursday, Sept. 10. The DNR review has been pending since last summer. ‘We know a break in that pipeline would be an utter disaster,’ Whitmer said. ‘As the DNR is wrapping up its easement review, I think it’s really very likely there will be a determination on that particular front in the very near future.’ Whitmer added that she remains ‘aligned with the attorney general and the work that she’s doing because I want to get this pipeline out of the water at the earliest possible moment.’ Whitmer has been criticized by environmental groups in Michigan for moving slowly to shut down Line 5. Pipeline opponents want her to revoke the 1953 easement that gives Enbridge authority to use the state-owned lake bottom to transport oil and gas. Mike Shriberg, regional director for the National Wildlife Federation, criticized Whitmer in a Bridge Magazine column this month for failing thus far to decommission the pipeline.” [MLive, 9/11/20 (=)]

 

Army Corps Of Engineers Proposes Revising Broad Range Of Clean Water Act Nationwide Permits. According to The National Law Review, “As issued in 2017, NWP 12 authorizes activities required for construction, maintenance repair, and removal of utility lines and associated facilities in waters of the United States (WOTUS), provided the activity does not result in loss of more than ½ acre of WOTUS. This NWP is commonly utilized by wind and solar projects to authorize impacts associated with construction of foundations for transmission lines, access roads, and utility substations. The Corps proposes restricting this NWP to oil and natural gas pipeline activities and issuing two new NWPs. A new NWP C would authorize electric utility line and telecommunications activities, provided the activity does not result in loss of greater than ½ acre of WOTUS for each single and complete project. The new NWP C would cover any cable, line, or wire for the transmission of electrical energy, telephone, and telegraph messages, and internet, radio, and television communication. It also authorizes construction, maintenance, or expansion of substation facilities, foundations for overhead electric utility lines, and access roads commonly associated with energy projects.” [The National Law Review, 9/15/20 (=)]

 

Rerouting Order Not A Fatal Blow For Mariner East 2 Pipeline, Analysts Say. According to S&P Global, “A regulatory order requiring Energy Transfer LP to reroute part of the Mariner East 2 pipeline is likely to delay but not derail the NGL line, analysts agreed. ‘I don’t think it’s going to be so prohibitive where they’re going to take the project down and not move forward with it, especially because it’s well over 90% done,’ Tortoise Capital Advisors LLC’s managing director and senior portfolio manager Brian Kessons said Sept. 15. ‘What, frankly, is most disappointing to the company is the opportunity cost of another month of delays before they can bring it online.’ The Pennsylvania Department of Environmental Protection, or DEP, ordered Energy Transfer subsidiary Sunoco Pipeline LP to suspend work on the pipeline Sept. 11, a month after 8,000 gallons of drilling mud was inadvertently released into a stream and flowed into Marsh Creek Lake, a popular state park. The state’s action requires Sunoco to reroute the 350-mile, 20-inch pipeline around wetlands near the lake in Chester County, Pa., by moving the line about half of a mile north of its current route to an alternate path.” [S&P Global, 9/15/20 (=)]

 

Water Pollution

 

Drinking Water

 

EPA Floats Updates To Pollution Control Payment Guidance. According to E&E News, “EPA for the first time in more than 20 years today proposed an update to a tool to determine the pace at which communities — especially low-income areas — must pay for required upgrades to halt pollution. EPA proposed the 2020 financial capability assessment (FCA) for the Clean Water Act to evaluate the financial capability of a community when developing a plan for water infrastructure upgrades. EPA said its new metrics more accurately reflect how low-income communities can afford to pay for projects. The proposal calls for the agency to also consider prevalence of poverty, drinking water costs and the costs of meeting Clean Water Act obligations. ‘EPA is working to ensure that all Americans — regardless of their zip code — have clean water for drinking and recreation,’ EPA Assistant Administrator for Water David Ross said in a statement. ‘With this action, the agency is supporting wastewater utilities to help them better serve disadvantaged communities that have financial challenges.’ The main change to the guidance, according to industry sources that have pushed for the changes for more than 15 years, is that EPA will not solely focus on median household income when setting the schedule for utilities to pay for and perform system upgrades. Instead, the agency will consider lower-income households, take into account the prevalence of poverty and other factors, provide more flexibility when setting schedules, and avoid drastic raising of water rates, they said. EPA’s proposal has not yet been published in the Federal Register.” [E&E News, 9/15/20 (=)]

 

EPA Proposes Update To Its Definition Of 'Affordable' Water Upgrades. According to Politico, “The new proposal: The new guidance would offer two alternate ways of assessing affordability, both of which put a special focus on the impact of cost increases on the lowest-income residents. One would still use the 1997 framework, but expand cost and poverty considerations. The other would use a dynamic financial and rate model to look at the impact of rate increases over time on utility customers. The proposal, which has been in the works for years, comes as the Trump administration’s EPA has sought to cast itself as focused on environmental justice. ‘EPA is working to ensure that all Americans—regardless of their zip code—have clean water for drinking and recreation,’ EPA Assistant Administrator for Water David Ross said in a statement. ‘With this action, the agency is supporting wastewater utilities to help them better serve disadvantaged communities that have financial challenges.’ The reaction: Organizations representing water utilities and municipal leaders welcomed the revamp, saying it is all the more important during the coronavirus pandemic, when utilities are facing additional economic challenges with many customers unable to pay their bills. ‘This new affordability guidance provides greater transparency and additional tools to allow cities to work in conjunction with EPA to find solutions that protect public health in a more affordable manner,’ U.S. Conference of Mayors Executive Director Tom Cochran said in a statement. But environmental groups have eyed previous efforts to offer cities more time for upgrades warily, since that effectively allows pollution violations to occur for longer periods of time. Moreover, overflows from old combined sewer systems are expected to grow more frequent as climate change brings more of the intense rain storms that cause the systems’ tunnels to overflow into nearby creeks and streams.” [Politico, 9/15/20 (=)]

 

EPA Revamps CWA Affordability Guidance To Better Reflect Ability To Pay. According to InsideEPA, “EPA is proposing to revamp its guidance for determining how a customer’s ability to pay for water services impacts the affordability of capital expenditures and operation and maintenance to ensure compliance with Clean Water Act (CWA) standards, adopting calls from municipal entities to better account for residents’ ability to afford rate increases. The Proposed 2020 Financial Capability Assessment (FCA) for Clean Water Act Obligations follows a fiscal year 2016 congressional call for the agency to update its 1997 affordability guidance, a 2017 report from the National Academy of Public Administration, and 2019 recommendations from drinking water and wastewater utilities. ‘The proposed 2020 FCA embraces these stakeholder priorities and provides tools to more easily articulate local financial circumstances, while advancing the mutual goal to protect clean water,’ EPA says in the guidance. EPA wastewater chief Andrew Sawyers signed the proposed update Sept. 4, but the agency did not release the document until Sept. 15. Once published in the Federal Register, the agency will take public comment for 30 days. ‘It has been a long time since the 1997 Guidance for Financial Capability Assessment and Schedule Development reflected EPA’s actual practices when reviewing the affordability of Clean Water Act control measures,’ EPA Assistant Administrator for Enforcement and Compliance Assurance Susan Bodine said in a Sept. 15 statement. ‘I am glad we finally are providing transparency regarding the tools available to communities to inform EPA enforcement decisions and how we use that information.’” [InsideEPA, 9/15/20 (=)]

 

Op-Ed: Water Is Life, So Don’t Mess With It. According to The Michigan Daily, “Proving once again that his ‘drain the swamp’ campaign slogan was a complete and utter lie, Trump nominated ex-coal lobbyist Andrew Wheeler to run the EPA. Throughout both his 2016 and 2020 campaigns, Trump has put an emphasis on saving the dying coal industry. In Trump’s most recent attempt to revive coal, Wheeler revisited the adjustments made by the Obama administration in 2015 requiring coal-fired plants to invest in treatment technology that keeps toxic wastewater out of the waterways, therefore protecting drinking water. The new revision cut out the requirement for state-of-the-art water treatment technology. This move would save the plants money in the short term but would no longer require them to protect their neighboring waterways, likely causing more costly health problems and expenses down the road. Over two and a half million people have died from unclean water and the corresponding diseases that result from it. Depending on the type of chemical pollution, polluted water can cause liver damage, skin cancer, Dysentery and Malaria. Possibly the most disturbing and horrifying aspect of the new rule is that it will not require coal plants closing by 2028 to follow any of the wastewater regulations, setting up potentially disastrous health and ecological effects on the surrounding community.” [The Michigan Daily, 9/15/20 (+)]

 

PFAS

 

Senators Seek To Boost EPA’s PFAS Funds Beyond House’s Fy21 Levels. According to InsideEPA, “Top Senate Democrats are pressing appropriators to provide more than $20 million for EPA’s regulatory and research work on per- and polyfluoroalkyl substances (PFAS) in fiscal year 2021, a significant boost over the funds that House lawmakers have already proposed appropriating for the agency. Among other goals, the lawmakers are seeking to provide $2 million for the agency to study to determine whether exposure to the chemicals exacerbates risks from COVID-19, an issue that federal health agencies have warned about though no studies have yet demonstrated a causal connection. In a Sept. 11 letter led by Sen. Jeanne Shaheen (D-NH), a group of 21 Senate Democrats -- including the ranking Democrats on all the major Senate committees -- asked Sens. Lisa Murkowski (R-AK) and Tom Udall (D-NM), leaders of the Senate Interior appropriations subcommittee, to provide a total of $22.4 million for EPA’s PFAS work in FY21, along with another $1 million to the U.S. Geological Survey to monitor water contamination. The request would mark a significant increase over the almost $13 million House appropriators provided the agency in legislation approved earlier this year, according to a summary of the House bill. The request comes as Democrats have intensified their efforts to make PFAS regulation and cleanup a plank of their general election platform, with the Democratic National Committee and presidential nominee Joe Biden pledging to step up efforts to address the broad class of chemicals.” [InsideEPA, 9/15/20 (=)]

 

Panel Demands Answers On PFAS Cleanups, Alternatives. According to E&E News, “House lawmakers pressed top defense officials yesterday for more information on research and cleanup of per- and polyfluoroalkyl substances, or PFAS. ‘I represent a community that has a number of PFAS contamination sites,’ Rep. Elissa Slotkin (D-Mich.) said during a hearing of the Armed Services Subcommittee on Readiness. ‘People can’t eat the fish from the rivers. They can’t let their dogs or their children touch the foam that’s coming up on their beachfront property, and they are concerned about the drinking water.’ Subcommittee Chairman John Garamendi (D-Calif.) stressed the need for the Pentagon to address many unknowns, including the chemicals’ harms to human health. ‘We’re going to do everything we can to find out those answers, which means keeping the pressure on the department to search for the answers,’ Garamendi said. Maureen Sullivan, deputy assistant secretary of Defense for environment, tried to reassure lawmakers that the Pentagon is focusing on the problem. The military used PFAS in firefighting foam. The chemicals are now considered dangerous to human health and bad for the environment. More than 600 military sites have known or suspected PFAS contamination from the department’s use of aqueous film-forming foam, or AFFF. ‘We’re collecting a tremendous amount of data and setting the standards pretty high for our folks to address,’ Sullivan told lawmakers.” [E&E News, 9/16/20 (=)]

 

Toxic Exposure Risks Lurk In Menstrual Products. According to E&E News, “The toxins in Jessian Choy’s underwear were a surprise. As the ‘Ms. Green’ advice columnist for Sierra, the Sierra Club’s magazine, Choy had set out to answer a reader’s question about the most eco-friendly menstrual products. After reviewing manufacturing information for tampons and pads, Choy turned to her own closet. ‘I have reusable menstrual underwear, and I hoped it was the greenest thing,’ said Choy, whose day job is working for the San Francisco Department of the Environment’s toxics reduction team. Instead, Choy discovered that her ‘organic’ menstrual panties from Thinx, meant to absorb period flow, likely contained per- and polyfluoroalkyl substances, or PFAS, which have been linked to multiple health problems, including liver damage and some cancers. The tests also found undisclosed copper and zinc in the underwear. She posted the results on the Sierra Club blog this winter. The denials and hired-gun toxicologists that followed, advocates say, underscore a broader lack of transparency and regulation of feminine hygiene products. ‘There is so little that we know about what is in any feminine product, and what the exposures might be and what that is doing to our bodies,’ Women’s Voices for the Earth Director of Science and Research Alexandra Gorman Scranton said. ‘I don’t think anyone is putting chemicals in these products to poison women, but the fact is, there is so little research about vaginal exposures, we don’t know what they are doing.’” [E&E News, 9/15/20 (=)]

 

Western Water

 

Getting Scary. According to Politico, “New projections from the Bureau of Reclamation show there is as much as a 32 percent chance the Lower Colorado River Basin will be facing a shortage by 2022, and as much as a 77 percent chance that it will be in that case by 2025. Even more sobering: The modeling gives it nearly 20 percent odds that the lower basin states of Arizona, Nevada and California will be in the most severe level of shortage in 2025 — the level at which levels in the V-shaped reservoir will fall precipitously and draconian cuts kick in. The projections are based on a ‘stress test’ scenario that essentially estimates what would happen if the current, 21-year drought conditions continue.” [Politico, 9/16/20 (=)]

 

Environmental Justice

 

Communities Of Color Are Dumping Grounds For Toxic Waste In Michigan. According to Detroit Metro Times, “‘I like fresh air. I don’t want to be a prisoner in my house. I should be able to sit on my front porch, but it’s stressful,’ McWilliams tells Metro Times. ‘It’s sad and crazy. It’s a nightmare.’ She and thousands of others live near a slim industrial zone of pollution-spewing factories that make their neighborhoods one of the most polluted in the state. Now they’re bracing for more dust, pollution, and noise after losing a years-long battle to prevent the expansion of U.S. Ecology at 6520 Georgia St., a hazardous-waste processing plant with a troubling record of environmental violations. In January, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) approved U.S. Ecology’s permit to increase its storage of toxic waste ninefold. The plant has permission to treat 144,000 gallons of toxic and industrial chemicals per day, including arsenic, cyanide, mercury, PCBs, and PFAS, that are dumped into the city’s sewer system. Over the past 10 years, U.S. Ecology has been cited more than 150 times for releasing excessive amounts of toxic chemicals into the sewer system, according to Great Lake Water Authority records. … The state’s eight hazardous-waste facilities have been cited hundreds of times for violations ranging from contaminating water sources with toxic spills to fires and explosions caused by mishandling chemicals.” [Detroit Metro Times, 9/15/20 (=)]

 

EPA Postpones Speaker Series On Racism After White House Order. According to Politico, “EPA this week postponed an internal speaker series on environmental problems faced by racial minorities and low-income communities after the White House issued a governmentwide order for agencies to stop certain ‘un-American’ race-related training. The move comes as many Democrats — including presidential candidate Joe Biden — have used broader racial tensions in the U.S. to highlight the heightened risks that pollution and environmental threats pose to communities of color, indigenous peoples and low-income areas. EPA’s postponement of the ‘environmental justice’ series was because of a Sept. 4 memo from the Office of Management and Budget that cited a directive from President Donald Trump for agencies to halt any ‘divisive, un-American propaganda training session.’ That includes anything ‘that teaches, trains or suggests the following: (1) virtually all White people contribute to racism or benefit from racism (2) critical race theory (3) white privilege (4) that the United States is an inherently racist or evil country (5) that any race or ethnicity is inherently racist or evil (6) Anti-American propaganda.’ … It also follows EPA Administrator Andrew Wheeler’s vow during a recent speech at the Nixon Library in California to heighten EPA’s focus on environmental justice in a second Trump term. Wheeler’s call for action would include greater coordination between EPA’s air, land and water offices to provide communities with a more holistic approach to environmental protection.” [Politico, 9/15/20 (=)]

 

EPA Sends Final ‘Science’ Rule For OMB Review. According to InsideEPA, “EPA has sent its controversial final science ‘transparency’ rule to the White House Office of Management and Budget (OMB) for mandatory pre-publication review, a measure that Administrator Andrew Wheeler has said will drive a process of writing tailored regulations for the agency’s program offices. OMB’s Office of Information and Regulatory Affairs began formal review of EPA’s ‘Strengthening Transparency In Regulatory Science’ rule on Sept. 14, according to OMB’s website, four months after the close of a comment period on the proposed version of the regulation that attracted almost one million submissions. As first proposed in 2018, the rule would require regulatory decisions to incorporate only studies and models whose underlying information is publicly available. But the agency later released a supplemental proposal floating a range of options that would allow consideration of studies that offer ‘tiered’ access to underlying data, that rely on confidential and proprietary information, or ‘that cannot be sufficiently de-identified to protect’ their subjects. Critics, however, charge that the policy will undercut the agency’s mission of protecting human health and the environment, warning that it would block the use of important studies that rely on confidential health information, proprietary business data, disaster-related research and older studies where underlying information is unavailable or inherently non-reproducible. Environmentalists, who have called on the agency to scrap the rule, will almost certainly sue once the rule is finalized.” [InsideEPA, 9/15/20 (=)]

 

5 Things To Watch As Lawmakers Push Energy Reform Bills. According to E&E News, “Also new to the energy package discussion is a title Democrats included dedicated to expanding the federal government’s role in environmental justice. The issue has only grown in attention within the House Democratic Caucus following a summer of racial and social protests in the wake of multiple police shootings of Black people in communities across the nation. ‘This bill ... protects local communities by requiring federal agencies to better understand the impact of new projects on public health and the environment, and to provide meaningful participation for indigenous and environmental justice communities,’ Pelosi said in a statement. In particular, the bill would direct more than $60 million in spending authorizations annually in grant programs meant to help communities across the country and on Indigenous lands offset historic pollution. One proposal would require consultation and consideration of a project’s potential impacts to low-income and minority communities. Such a measure could have dramatic repercussions for the siting of energy infrastructure like oil and gas pipelines or transmission projects. The Dakota Access pipeline, in particular, saw multiple accusations of violating and ignoring Indigenous people.” [E&E News, 9/16/20 (=)]

 

Flooding

 

Inspector General Slams FEMA Over Repeatedly Flooded Homes. According to NPR, “The Federal Emergency Management Agency fails to help tens of thousands of people whose homes have repeatedly flooded, according to a report by the Office of the Inspector General for the Department of Homeland Security. A 2004 law requires FEMA to keep a list of homes that have repeatedly flooded, and prioritize those homes for federal assistance. But the new report finds that FEMA’s list is rife with errors and that nothing has been done to reduce the flood risk for most of the nearly 38,000 homes on the list. The Department of Homeland Security oversees FEMA. FEMA ‘provides neither equitable nor timely relief’ to those who own homes that have repeatedly flooded, the report states. ‘These properties are really the tip of the iceberg when it comes to staring down our climate change future,’ says Anna Weber, a flood analyst at the Natural Resources Defense Council. ‘Flood risks are increasing all across the country — this isn’t just a coastal problem. So, if we don’t act to address the risk to properties like these, we’re going to see more and more repetitively flooded properties all over the nation.’” [NPR, 9/15/20 (=)]

 

Misc. Waterways

 

Lobbying Firm Launches Water-Focused Practice. According to E&E News, “The Signal Group, a Washington lobbying firm, is launching a dedicated lobbying and communications practice focused on the water sector. Dubbed Signal Water, the new practice will focus on bipartisan water legislation moving through Capitol Hill, including the ‘Water Resources Development Act of 2020’ and a COVID-19 recovery bill. Yet another focus: legislative language that would provide assistance to consumers struggling to pay for water and wastewater services. The practice is being led by Mae Stevens, former environmental policy adviser to Sen. Ben Cardin of Maryland, now a top Democrat on the Senate Environment and Public Works Committee. ‘For too long water has been overlooked because it is underground. It is out of sight and out of mind,’ Stevens said in a statement. ‘Something has got to change. Especially in these extraordinary times, with the pandemic, the recession, and the national reckoning on race, we need to rise to the challenge.’ … Other members of the practice include Robert Bole, former general manager of CityLab; Charlie Moskowitz, previously a staffer for former Democratic Sen. Claire McCaskill of Missouri; Blake Androff, former executive director of the House Democratic Policy and Communications Committee under Speaker Nancy Pelosi (D-Calif.) and communications director at the Interior Department during the Obama administration; Madeline Wade, a former staffer for Rep. Greg Walden of Oregon, now the top Republican on the House Energy and Commerce Committee; and Ted Mondloch, a graduate of James Madison University with a bachelor’s degree in political science and international affairs.” [E&E News, 9/15/20 (=)]

 

 

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