Clean Water Act

 

NWPR & WOTUS

 

Blue States Try Again To Kill Trump WOTUS Rewrite. According to E&E News, “A coalition of blue states today renewed their efforts to block the Trump administration rule that redefined the scope of the Clean Water Act. The new definition of ‘waters of the U.S.,’ or WOTUS, should be struck down as inconsistent with the statute and as ‘arbitrary and capricious’ under the Administrative Procedure Act, the states argued in their filing with the U.S. District Court for the Northern District of California. ‘Over the past four years, the Trump Administration has been fighting the currents — largely unsuccessfully — in a damaging effort to dismantle the Clean Water Act and its protections,’ California Attorney General Xavier Becerra (D) said in a statement. ‘But the Trump Administration can’t stop the tides of fifty years of progress. We won’t let them.’ Becerra, along with New York Attorney General Letitia James (D), led a multistate motion for summary judgment in their challenge against the Trump administration’s WOTUS rewrite, also known as the Navigable Waters Protection Rule. They are joined by Democratic attorneys general in 15 other states, New York City and Washington, D.C. A judge for the California district court this summer rejected the states’ request to block the Trump rule nationwide. A separate court has put the rule on hold in Colorado.” [E&E News, 11/24/20 (=)]

 

Permits & Certifications

 

Democratic State AGs Say Trump CWA Jurisdiction Rule Flawed, Unlawful. According to InsideEPA, “Democratic attorneys general (AGs) from 17 states and the District of Columbia are urging a federal district court in California to overturn the Trump administration’s Clean Water Act (CWA) jurisdiction rule, arguing the policy is flawed for three independent reasons, or alternatively, that it is unlawful under the Chevron discretion standard. The rule defining waters of the United States (WOTUS) ‘is invalid under either of the two ‘distinct standards’ that courts apply in reviewing agency regulations: the standard for agency decisionmaking under’ Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Auto Insurance Co. ‘and the standard for statutory interpretation under’ Chevron v. Natural Resources Defense Council, the states say in their Nov. 23 motion for summary judgement. Their challenge to the rule, California, et al. v. Wheeler, is pending in the U.S. District Court for the Northern District of California, where Judge Richard Seeborg in June denied the states’ request for a nationwide injunction of the rule, which replaced a broader Obama administration CWA jurisdiction policy.” [InsideEPA, 11/24/20 (=)]

 

Tribes Have Not Met 'High Bar' For Dakota Access Pipeline Shutdown, Corps Says . According to The Bismarck Tribune, “Shutting down the Dakota Access Pipeline would ‘cause economic harm and shift oil transport to more risky methods’ and should not occur, a federal permitting agency argued in the latest round of legal filings in the ongoing dispute over the oil pipeline. The same judge who ordered the line to cease operations this past summer is considering another a plea from the Standing Rock Sioux and other tribes to shut the line down after a higher court overturned part of the initial ruling. An appellate court said U.S. District Judge James Boasberg ‘did not make the findings necessary’ for a shutdown in his July order, and it kicked the matter back to him for further consideration. Recent legal filings have rehashed familiar arguments from the U.S. Army Corps of Engineers, pipeline developer Energy Transfer, the tribe and others with a stake in the outcome of the pipeline dispute. Standing Rock tribal members are concerned that an oil spill at the pipeline’s Missouri River crossing would harm their water supply, while the Corps and Energy Transfer maintain the line is safe. The Corps in a brief submitted Friday said the tribes have not met the ‘high bar’ required for a shutdown, in which they must show they are certain or likely to ‘suffer an irreparable injury that cannot be remedied and that the balance of hardships tips in their favor.’” [The Bismarck Tribune, 11/24/20 (=)]

 

Army Corps Of Engineers Grants Final Federal Line 3 Permit. According to Associated Press, “The U.S. Army Corps of Engineers on Monday approved the final federal permit for Enbridge Energy’s planned Line 3 crude oil pipeline replacement across northern Minnesota, bringing the project a step closer to construction. In a release from its St. Paul office, the Corps said it determined the Line 3 project ‘is compliant with all federal laws and regulations.’ Col. Karl Jansen, commander of the St. Paul District, said the decision followed ‘an exhaustive review’ and extensive work with federal and state regulators, Native American tribes, environmental groups and Enbridge. ‘I believe our decision is based on sound science and strikes the balance between protecting natural resources and allowing reasonable development,’ Jansen said. All that remains in the six-year-old process now is for the Minnesota Pollution Control Agency to issue a storm water construction permit to protect surface waters from runoff while it’s being built, and then for the independent Public Utilities Commission to give a final green light. The commission has already approved the project several times. ‘These permits are yet another science-based approval for the project moving Line 3 closer to the start of construction,’ Enbridge said in a statement. ‘Final state permits and authorizations are needed for work to begin before the end of 2020.’” [Associated Press, 11/23/20 (=)]

 

Enbridge Files Federal Complaint To Block State Shutting Down Line 5 Dual Pipelines. According to WXYZ-TV, “Enbridge filed a federal complaint seeking an injunction to stop the State of Michigan from taking any action to shut down the Line 5 dual pipelines in the Straits of Mackinac. Earlier this month, Governor Gretchen Whitmer said Enbridge has ‘repeatedly’ violated the 1953 Easement, and that the continued operation of the pipelines violates the state’s energy needs. Enbridge argues that the Pipeline and Hazardous Materials Safety Administration is its safety regulator, not the State of Michigan. Enbridge claims the safety of the dual pipelines was reviewed by PHMSA and were found to be ‘fit for service.’ ‘The State’s attempt to assume the role of safety regulator through its notice purporting to ‘terminate and revoke’ the easement is improper and unlawful,’ Enbridge said in a statement. ‘In the face of continued roadblocks by this Administration it’s time for the State to stop playing politics with the energy needs and anxieties of US and Canadian consumers and businesses that depend on Line 5,’ said Vern Yu, Executive Vice President and President, Liquids Pipelines. ‘It is concerning to see the current Administration is willing to compromise these needs. We remain highly committed to protecting the Great Lakes, the environment, and all the people who use these waters while delivering energy that people rely on daily. Enbridge’s Line 5 has served Michiganders safely without spilling a drop of oil at the Straits crossing for more than 65 years, over nine different State Administrations.’” [WXYZ-TV, 11/24/20 (=)]

 

Enbridge Sues Mich. Over Pipeline Shutdown. According to E&E News, “Enbridge Inc. is bringing Michigan officials to federal court for ordering the shutdown of its Line 5 pipeline beneath the Great Lakes earlier this month. The pipeline operator argued that Gov. Gretchen Whitmer (D) and other officials violated constitutional protections for interstate and foreign commerce when they issued an order on Nov. 13 revoking a decades-old easement for the pipeline. Enbridge maintained that the project — a pair of pipelines crossing beneath the Straits of Mackinac — had never released petroleum products in 65 years of operation. ‘[T]he Shutdown Order asserts that termination of the 1953 Easement is warranted based on speculative fears about the safe operation of the Line 5 Dual Pipelines,’ the company wrote in a complaint to the U.S. District Court for the Western District of Michigan. In a notice to the pipeline operator, Michigan said it was revoking the approval due to Enbridge’s ‘longstanding, persistent, and incurable violations’ of its easement conditions. The state gave Enbridge until mid-May before it had to shut down the pipeline (E&E News PM, Nov. 13).” [E&E News, 11/25/20 (=)]

 

Canada Welcomes Choice Of Kerry As U.S. Climate Czar, Will Defend Pipeline: Envoy. According to Reuters, “Canada welcomes the choice of John Kerry as new U.S. climate envoy but will press Washington not to cancel permits for an oil pipeline he opposes, Ottawa’s ambassador to the United States said on Tuesday. ‘We see a huge number of opportunities to work with the Americans on the international stage and also bilaterally on the fight against climate change. So this is good news,’ Kirsten Hillman told an event organized by the Montreal Council on Foreign Relations. … One immediate challenge for Canada is Biden’s vow to scrap U.S. permits for TC Energy Corp’s Keystone crude pipeline, a project that would move oil from the province of Alberta to Nebraska. As secretary of state in 2015, Kerry blocked the project on the grounds it would undermine the fight against climate change, a decision reversed by Trump in 2017.” [Reuters, 11/24/20 (=)]

 

EPA Finalizes Water Permit To Help Clean Up The Great Bay. According to Associated Press, “Federal officials finalized a plan Tuesday to reduce pollution in one of the largest estuaries in the Northeast with an approach that gives surrounding communities greater flexibility to address the problem. The Environmental Protection Agency, in the Clean Water Permit for the Great Bay in New Hampshire, calls for a dozen communities that ring the bay to reduce the amounts of nitrogen going into the waters. It allows them to reduce nitrogen by treating sources like storm water runoff and septic tanks, rather than making costly upgrades to their wastewater treatment plants. ‘This permit is an important and innovative approach for a significantly cleaner, healthier Great Bay and reflects many years of hard work among federal, state and local governments to address a critical environmental problem,’ EPA New England Regional Administrator Dennis Deziel said in a statement. ‘The permit is part of a federal and state approach that will reduce nitrogen in Great Bay in a cost-effective way, allowing municipal leaders the flexibility to make local decisions that are good for the environment and work for their communities. This is good news for New Hampshire communities and their ratepayer customers.’” [Associated Press, 11/24/20 (=)]

 

How Trump Could Obstruct Biden's Regulatory Plans. According to E&E News, “Jayson O’Neill, an advocate at the left-leaning Western Values Project, said there are a ‘lot of booby traps’ the Trump administration could lay down to impede the Biden team. For one, the Interior Department appears dead set on holding a lease sale in much of the 1.6-million-acre Arctic National Wildlife Refuge before leaving office (Energywire, Nov. 17). Recently, he noted, the Gulf of Mexico lease sale was massive at a time when oil prices are low and companies strapped for cash O’Neill said that, by his count, Interior has leased 5.4 million of the 24.7 million acres of public land it put on the block. ‘Even if Biden says no more fracking on public lands, look how many permits they are sitting on after Trump,’ he said. … GAO reported earlier this year that from 2016 to 2019, the Bureau of Land Management cut oil and gas permitting review times in half — down to 94 days — and the agency is approving more applications than operators use. As of March, oil companies were sitting on nearly 10,000 unused permits.” [E&E News, 11/24/20 (=)]

 

Water Pollution

 

Coal Ash

 

Midnight Train To Maui. According to Politico, “EPA has sent for interagency review its draft guidance on how to implement a Supreme Court decision from earlier this year relating to when leaking coal ash ponds, underground injection wells hog lagoons need Clean Water Act permits. It’s one of the few regulatory documents to advance since Election Day, but is unlikely to make it through the process in the administration’s waning days, and could easily be revoked by the incoming Biden administration if it did.” [Politico, 11/25/20 (=)]

 

Enviros Ask D.C. Circuit To Scrutinize Disposal Rule. According to E&E News, “Nine environmental groups are asking the U.S. Court of Appeals for the District of Columbia Circuit to review an EPA rule that pushed back deadlines for utilities to begin closing unlined coal ash disposal sites. The Obama administration gave coal ash ponds lacking leak prevention until April 2019 to initiate closing. But the D.C. Circuit struck down other aspects of that rule for being too lenient. As part of its piecemeal approach to rehashing the regulations, President Trump’s EPA in July released a rule that extended the deadline to stop adding coal ash to unlined ponds until April 2021 (Greenwire, July 30). Operators of large coal ash ponds have until 2028 to complete closure under the latest regulations. Other extensions could bring the date of closure for impoundments greater than 40 acres to 2038, said attorney Lisa Evans of Earthjustice, which is representing environmental groups in the challenge. ‘The Trump administration acted illegally when it gave coal plants many more years to dump toxic waste in pits that contaminate waterways and drinking water sources,’ Evans said in a news release. EPA Administrator Andrew Wheeler said this summer the rule allows utilities enough time to adapt. EPA classifies coal ash as nonhazardous, but it can contain arsenic, mercury and other toxins that leach into groundwater.” [E&E News, 11/24/20 (=)]

 

Plastic Pollution

 

We Need A Global Leader On Plastics. Could It Be Biden? According to Grist, “Just last month, scientists labeled the United States as the country generating the most plastic waste worldwide. The world is desperately seeking U.S. involvement in not only solving the glut of plastic soda bottles, bags, and straws polluting our air, soil, and water, but also the plastic face shields, takeout containers, and bubble wrap that have proliferated with the pandemic. Yet over the past four years, the Trump administration’s most notable action has been to sign the industry-supported Save Our Seas Act, which some 40 environmental organizations opposed. Fortunately, Biden’s presidency provides a much-needed opportunity for the U.S. to re-engage with the international community on the climate crisis in general, and on the urgent matter of plastics in particular. Plastic’s durability has lent it widespread use, but that’s what also allows it to persist in the environment. As a result, microplastics — small plastic particles — are infiltrating everything from ice cores in the Antarctic to the salt on your table. And the fossil fuel industry has pivoted to plastics amid fears that global demand for fossil fuels will continue to decrease.” [Grist, 11/24/20 (=)]

 

Misc. Waterways

 

U.S. Oil Industry Group Pledges To Fight Possible Biden Fracking Limits. According to Reuters, “If U.S. President-elect Joe Biden tries to restrict development of oil and gas drilling on federal lands, the American Petroleum Institute (API) will use ‘every tool at its disposal’ including legal action, chief executive Mike Sommers said in an interview with Reuters on Monday. Biden has said he supports a ban on new gas and oil permits — including fracking — on federal lands. Fracking, or hydraulic fracturing, is a drilling technology that has allowed the U.S. oil industry to vastly boost output in recent years, making the United States the world’s largest producer of crude oil. Environmental groups oppose fracking, saying it pollutes groundwater and exacerbates climate change. Sommers said the API looks forward to working with the incoming Biden administration on energy, but would ‘draw the line’ if Biden implemented restrictions on lands that were ‘always meant for multi-use.’ ‘This would be a far reaching proposal that would undermine American national and energy security to the detriment of the American people,’ Sommers told Reuters.” [Reuters, 11/24/20 (=)]

 

US Judge Voids Permits For Columbia River Methanol Plant. According to Associated Press, “A judge on Monday voided permits needed for a massive methanol plant on the Columbia River in southwestern Washington, agreeing with conservation groups that the project needs a more thorough environmental review. The U.S. Army Corps of Engineers had granted the permits for the construction of an export facility that is part of a $2 billion NW Innovation Works plant proposed in Kalama. The plant would take natural gas from Canada and convert it into methanol, which would be shipped to China to make olefins — compounds used in everything from fabrics and contact lenses to iPhones and medical equipment. Conservation groups including Columbia Riverkeeper, the Sierra Club and Washington Environmental Council challenged the permits in U.S. District Court in Tacoma, saying the Corps of Engineers conducted only a summary review that failed to account for the project’s full environmental effects.” [Associated Press, 11/24/20 (=)]

 

 

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