Clean Water Act

 

NWPR & WOTUS

 

Federal Court Considers The Fate Of WOTUS In Colo. According to E&E News, “Trump administration lawyers today pressed federal appellate judges to reverse a lower court order in Colorado blocking a regulation that determines what waters are afforded protections under the Clean Water Act. Today’s hearing followed a June injunction by a federal district court judge, stopping implementation of EPA’s Navigable Waters Protection Rule in Colorado. The state has argued that the injunction was necessary because the rule significantly narrowed the scope of the Clean Water Act’s reach and the state did not have adequate time to come up with its own enforcement regime in response. ‘For decades, Colorado has relied on the permitting process’ administered by EPA and the Army Corps of Engineers, Colorado Solicitor General Eric Olson told a three-judge panel of the 10th U.S. Circuit Court of Appeals. ‘We have not had an opportunity to fix this.’ Justice Department attorney Jonathan Brightbill, representing the Trump administration, countered that the state had ‘all kinds of notice,’ since Trump’s EPA made it clear early in the administration that it would repeal and replace the Obama administration’s Clean Water Rule, which set a much broader definition of what waterways and wetlands qualify for federal protections.” [E&E News, 11/18/20 (=)]

 

10th Circuit Questions Role Of High Court Ruling, Harm In WOTUS Appeal. According to InsideEPA, “A three-judge panel of the U.S. Court of Appeals for the 10th Circuit questioned attorneys Nov. 18 about the role of a major Supreme Court ruling in shaping federal regulations on the scope of the Clean Water Act (CWA) and the potential harm to Colorado from a Trump administration CWA rule as they weighed whether to reverse a stay of the rule. Judges Carolyn McHugh, Bobby Baldock and Allison Eid pressed Colorado Solicitor General Eric Olson on the state’s interpretation of the Supreme Court’s fractured 2006 CWA decision in Rapanos v. United States and whether the Trump administration’s waters of the United States (WOTUS) rule would cause the state irreparable harm. But they asked few questions of Jonathan Brightbill, principal deputy assistant attorney general for the Justice Department’s Environment and Natural Resources Division. Brightbill, representing EPA and the Army Corps of Engineers, argued that the U.S. District Court for the District of Colorado made several errors when it granted the state’s request to stay implementation of the Trump WOTUS rule while the merits of the rule were litigated. The rule replaced an Obama-era CWA jurisdiction policy that President Donald Trump argued was too broad and regulated waters Congress never intended the water law to cover.” [InsideEPA, 11/18/20 (=)]

 

Trump Evisceration Of Clean Water Act By Definition Of Navigable Waters Argued. According to Courthouse News Service, “The U.S. Environmental Protection Agency on Wednesday asked the 10th Circuit to restore its narrow definition of water protected by the Clean Water Act, struck down at Colorado’s request by a federal judge. In April, the EPA passed a final definition of water in attempt to clarify which waters are protected by the Clean Water Act that would require federal permits for the ‘the discharge of any pollutant by any person.’ The previous rule defined the protected waters as ‘navigable waters.’ The new definition specifies tributaries, lakes and wetlands among other categories, but in doing so cuts the number of federally protected waters in Colorado by half. Colorado sued the Trump administration this past May. A month later, U.S. District Judge William J. Martinez, appointed by Barak Obama, granted the state a preliminary injunction. In a remote hearing before a three-judge 10th Circuit panel on Wednesday, U.S. Attorney Jonathan Brightbill argued the rules were narrowed to provide clarity in the wake of three Supreme Court cases.” [Courthouse News Service, 11/18/20 (+)]

 

Pebble Mine Leaders Optimistic About Securing CWA Permit. According to InsideEPA, “The company seeking to build the controversial Pebble Mine in Alaska has submitted its comprehensive mitigation plan to the Army Corps of Engineers, and company leadership says it can achieve the high bar for in-kind and in-watershed mitigation that the Corps is requiring before issuing a Clean Water Act dredge-and-fill permit for the mine. Based on the findings of the Corps’ final environmental impact statement for the planned gold, copper and molybdenum mine that found no significant adverse impacts from the mine, ‘we already know Pebble can operate safely and reliably, while fully protecting the water, fish and wildlife resources of Bristol Bay,’ Ron Thiessen, Northern Dynasty president and CEO, said in a Nov. 16 statement. Meeting the Corps’ ‘challenging mitigation requirements provides even greater evidence that Pebble can and will co-exist with commercial, subsistence and sport fisheries in southwest Alaska,’ he said.” [InsideEPA, 11/18/20 (=)]

 

Permits & Certifications

 

Lawsuit: BLM Failed On NEPA, Tribal Review Of Pipeline. According to E&E News, “Native American tribes are pursuing a new round of litigation in a bid to block further construction of the controversial Keystone XL oil pipeline, this time by challenging the Bureau of Land Management. The Rosebud Sioux Tribe and Fort Belknap Indian Community say the Interior Department did not properly consult with them about the project or assess its risks before granting a right of way in January for the 1,200-mile pipeline to cross federal lands in Montana. They argued the agency’s approvals violated the National Environmental Policy Act and treaty obligations. The tribes are asking the U.S. District Court for the District of Montana to toss out the underlying 2020 record of decision and to ax the right of way, as well as the project’s temporary use permit. They called for the judge to block pipeline developer TC Energy Corp. from further construction or operation of the pipeline, including maintenance work. … The tribes allege that BLM did not do enough to consider the potential risks of oil spills on the tribes’ water supply and other natural resources. It also did not consider cultural, spiritual and religious impacts or how the project could affect historic properties located in the path of the pipeline.” [E&E News, 11/19/20 (=)]

 

Keystone XL Developer Says Project Fits Biden Agenda. According to E&E News, “The creation of union jobs and support by Indigenous investors will help convince U.S. President-elect Joe Biden that the Keystone XL pipeline fits into his ‘Build Back Better’ agenda, an executive with TC Energy Corp. said yesterday. The Calgary, Alberta-based company said it is forging ahead with construction of the pipeline designed to transport up to 830,000 barrels of oil per day from Alberta to Nebraska despite Biden’s vow during his election campaign to rip up the presidential permit that allows it to move oil across the border. The pipeline, proposed in 2008, was rejected twice under the Obama administration because of concerns that it could worsen climate change, then President Trump revived it. TC Energy said in March that it intended to start construction after the provincial government in Alberta invested $1.1 billion to jump-start the work. ‘We’ve looked at the incoming Biden administration’s Build Back Better plan, and the steps that we’ve already taken with Keystone XL, we believe, have positioned it very favorably, particularly as we bring jobs to the economy next year, a key platform for the U.S. government as we recover from the COVID-19 pandemic,’ Bevin Wirzba, president of liquids pipelines, said during a webcast from the company’s investor day.” [E&E News, 11/18/20 (=)]

 

Keystone XL Pipeline Called Threat To MT Communities. According to Public News Service, “Tribes and conservation groups are urging Montana to deny a key permit for the Keystone XL Pipeline. Under the Clean Water Act, the state Department of Environmental Quality (DEQ) must certify the project won’t violate water-quality standards before construction can start. The pipeline route crosses more than 200 Montana waterways, including the Missouri River. Angeline Cheek, an indigenous justice organizer from the American Civil Liberties Union of Montana from the Fort Peck Reservation, said the threat to tribal members, especially their drinking water, hasn’t been considered. ‘When is the government and the state going to realize what they’ve done to our people?’ Cheek wondered. ‘And why jeopardize the people’s health more and put us at risk?’ The TC Energy pipeline will carry about 830,000 barrels of Alberta tar sands per day through eastern Montana to pipelines in Illinois. TC Energy said it has formed relationships with First Nations and indigenous people in the region and touts the pipeline’s job-creation potential.” [Public News Service, 11/18/20 (=)]

 

Water Pollution

 

Drinking Water

 

Program To Help With Utility Bills, Expands To Water, Sewer. According to Associated Press, “A program that helps Vermonters who can’t pay their utility bills because of the COVID-19 pandemic has been expanded to include unpaid water and sewer bills. The program, which is being paid for with federal CARES Act money, is available for primary homes and Vermont based businesses. All water and wastewater systems in Vermont now have access to the program. ‘The pandemic has been ruthless in visiting economic hardship on so many Vermonters who have lost income and are struggling to keep up with their basic expenses,’ said Department of Public Service Commissioner June Tierney. So far more than 7,000 people have received benefits through the program.” [Associated Press, 11/18/20 (=)]

 

Dems Float Incentive For Lead Removal In Homes. According to E&E News, “Senate Democrats are proposing a new tax credit to help cover the costs of removing toxic lead from residences. The ‘Home Lead Safety Tax Credit Act,’ introduced yesterday by Sen. Sheldon Whitehouse (D-R.I.) and seven other Democrats, would create a refundable credit for homeowners, landlords and tenants to remove lead — a powerful neurotoxin that can cause severe developmental issues in children. ‘Every parent should have the peace of mind of knowing their child is safe in their own home,’ Whitehouse, who sued lead paint manufacturers while serving as Rhode Island’s attorney general, said in a statement. ‘Yet, millions of older houses have hidden lead hazards that can set children up for a lifetime of heartbreakingly needless challenges.’ The bill would allow up to $4,000 per residence to offset the cost of abating lead hazards in paint, pipes or soil for homes built before lead-based paint was banned in 1978. … Also sponsoring the measure are Senate Minority Leader Chuck Schumer of New York and Sens. Richard Blumenthal of Connecticut, Gary Peters of Michigan, Jeanne Shaheen and Maggie Hassan of New Hampshire, Cory Booker of New Jersey, and Kirsten Gillibrand of New York.” [E&E News, 11/19/20 (=)]

 

PFAS

 

Environmentalists See Hope That Biden Administration Will Get Tough On PFAS. According to Albany Times Union, “Members of Congress plan to push president-elect Joe Biden to put two prevalent forms of PFAS chemicals – PFOA and PFOS – on the list of hazardous substances covered under the federal Superfund law, a leading lawmaker and environmentalist group said on Tuesday. It that happens, it could free up funds to help New York communities deal with PFAS water pollution problems that are just now coming to light. ‘We think this can be a very fast environmental win,’ Michigan Rep. Debbie Dingell said during an online discussion sponsored by the Environmental Working Group, which advocates on PFAS and other pollution issues. ‘It will be an early priority,’ she added. The working group discussion was the first of what will be numerous meetings and talks by environmental groups nationwide as Biden prepares to occupy the White House. Environmentalists have repeatedly blasted the Trump Administration for what they say was its weak enforcement of clean air and water laws.” [Albany Times Union, 11/18/20 (=)]

 

Barrasso Grabs The Gavel. According to Politico, “The Wyoming senator announced his intent Wednesday to become the top Republican on the Energy and Natural Resources Committee, leaving behind his post as the chair of the Environment and Public Works Committee. Provided Republicans maintain their majority, Barrasso will chair the committee in the next Congress, replacing Lisa Murkowski (R-Alaska), who is term-limited. … Barrasso’s move opens up the top slot for Sen. Shelley Moore Capito (R-W.Va.), who is next in line. In addition to advancing what’s expected to be a hefty infrastructure package, several people said they expected Capito would work on legislation addressing PFAS contamination, a major issue in her state, and providing funding to clean up former mines.” [Politico, 11/19/20 (=)]

 

Coal Ash

 

Removing Toxic Coal Ash From Allen Plant Enters Logistics Phase. According to WKNO-Radio, “The process of relocating toxic waste—about 3.5 million cubic yards of it—will soon begin at a Southwest Memphis industrial site. For the next month, the public can comment on the Tennessee Valley Authority’s coal ash removal plan that has local environmentalists demanding strong oversight. When the TVA shut down its coal-burning Allen Fossil Plant in 2018, it left behind two storage ponds full of ash, which contain poisonous substances like arsenic and lead. Due to concerns that these toxins could seep into Memphis’ drinking water, the federally-owned utility faced added pressure to remove the ash from the site. TVA has proposed trucking the coal ash to either or both the South Shelby Landfill, which is about 20 miles away, or nearly 30 miles south to the Tunica Landfill in Mississippi. TVA says that either dump site will be lined so the ash doesn’t seep out. At a virtual presentation Tuesday night, members of the public submitted electronic questions about how the ash would be removed, transported and eventually stored. ‘We want them to dig up that ash, and get it away from our aquifer, but we also don’t want it to cause people problems somewhere else,’ said Scott Banbury with the Tennessee Chapter of the Sierra Club. ‘We want worker safety measures put in place to avoid what happened in Kingston.’” [WKNO-Radio, 11/18/20 (=)]

 

Wastewater

 

EPA Seeks To Combine Lawsuits Over Power Plant ELG Revisions. According to InsideEPA, “EPA has notified the U.S. Judicial Panel on Multidistrict Litigation of challenges to the agency’s power plant effluent limitations guidelines (ELG) revisions that were filed in two separate federal appeals courts, the first step in the agency’s bid to have the lawsuits heard by the same court. A coalition of nine environmental groups, led by Clean Water Action, filed suit Nov. 2 in the U.S. Court of Appeals for the District of Columbia Circuit, while four environmental and civil rights groups, led by Appalachian Voices, filed suit Nov. 2 in the 4th Circuit. Federal regulations require agencies to notify the panel when two or more petitions for review of the same final agency action are filed in two or more different courts of appeals and received by the agency within 10 days after issuance of the action, EPA notes in a Nov. 17 filing with the judicial panel. The panel must then designate one court of appeals by random selection and issue an order consolidating the petitions for review in that court, EPA says.” [InsideEPA, 11/18/20 (=)]

 

Flooding

 

As Great Lakes Pummel Michigan, Beach Towns Rush To Set Development Rules. According to Great Lakes Now, “Brandt Rousseaux loves the water, having spent two decades in the Coast Guard long before settling in this small community at the tip of Michigan’s thumb. But lately, gazing upon the shoreline from a fishing boat in Lake Huron has become an exercise in frustration. Rousseaux, the Port Austin Township supervisor and Village of Port Austin planning commissioner, notes with dismay the way record-high Great Lakes water levels have transformed his community’s shoreline. Water has flooded yards, scoured away beaches and threatened homes. Waves are threatening to chew through the points that protect the historic harbor in Grindstone City, at the township’s eastern end. ‘It’s shared misery,’ he said. But most troubling for Rousseaux are the seawalls and rock barricades, known as riprap, that now line the shore as residents scramble to protect their property from the encroaching waves. … The push to rectify policies that allowed people to build close to shore is one component of ‘coastal resiliency,’ a term that’s getting greater buzz as climate change exacerbates the Great Lakes’ natural tendency to batter the shores that surround them.” [Great Lakes Now, 11/18/20 (+)]

 

Misc. Waterways

 

Getting ‘Black Mayonnaise’ Out Of One Of America’s Dirtiest Waterways. According to The New York Times, “In the middle of the Gowanus Canal, across from a luxury apartment complex and waterfront promenade, a yellow excavator was perched atop a floating barge. Again and again this week, it plunged its claw into the murky water, emerging each time with a scoop of fetid black muck. After more than 150 years, the famously filthy canal in Brooklyn is finally being cleaned out. Since the mid-1800s, industrial pollutants, raw sewage and storm runoff have accumulated in the waterway, making it one of the most contaminated in the country. As the surrounding industrial wasteland gave way in recent decades to gleaming apartments, and as restaurants and bars popped up on streets dominated by warehouses and parking lots, the noxious sediment — known as ‘black mayonnaise’ because of its color and consistency — lurked below the water’s surface. Now the canal is undergoing its own transformation. The Environmental Protection Agency has begun a $1.5 billion project to remove the sludge and clean the Gowanus. The work could take more than a decade. But its onset is a milestone for the canal, which earned the nickname Lavender Lake for its unnatural hue.” [The New York Times, 11/19/20 (=)]

 

 

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