Clean Water Act

 

NWPR & WOTUS

 

CWA Citizen Suits Likely To Grow Despite Biden EPA Enforcement Boost. According to InsideEPA, “The Biden administration is signaling an increased focus on environmental enforcement, especially in the context of environmental justice (EJ), but legal experts say Clean Water Act (CWA) citizen suits are likely to play an even bigger role in shaping the scope of the water law and determining where and how discharge permits are required. The CWA is always evolving, and most of that evolution has occurred through citizen suits, said Samuel Brown, a former EPA attorney who is now a partner with Hunton Andrews Kurth, during a recent virtual environmental law conference held by the American Law Institute-Continuing Legal Education. ‘Creativity knows no bounds when it comes to citizen suits,’ Brown said. Brown predicted enforcement in the Biden administration will be ‘more and different’ than during the Trump administration but noted that ‘enforcement is the lowest hanging fruit’ when it comes to changing policy. He suggested that the recent changes California made to its EJ mapping tool, CalEnviroScreen, ‘could foreshadow what you’re going to see at the federal level.’ And he commented that the Justice Department is once again allowing the use of supplemental environmental projects (SEPs) in settlements. ‘Most everyone likes SEPs because they help get over the hurdle to settlement,’ he said.” [InsideEPA, 3/9/21 (=)]

 

9th Circuit Continues To Grapple With Long-Running EPA Wetlands Suit. According to InsideEPA, “A three-judge panel of the U.S. Court of Appeals for the 9th Circuit is continuing to grapple with long-running litigation over potential EPA Clean Water Act (CWA) enforcement on an Idaho couple’s land, asking the couple and EPA for additional briefs months after the panel heard oral argument in the case. ‘Assuming we were to hold that there is still a live controversy surrounding EPA’s authority to regulate Plaintiffs’ property, the parties are instructed to address the relevance, if any, of’ the Trump-era rule defining waters of the United States (WOTUS) ‘to this appeal,’ Circuit Judges Ronald Gould and Michelle Friedland and District Court Judge Jill Otake, sitting by designation, say in a March 8 order in the case Sackett v. EPA. The judges ask the landowners Chantell and Michael Sackett to file their supplemental brief by March 26 and ask EPA to file its brief by April 12. The judges say that if they deem it appropriate for the Sacketts to file a reply brief, they will do so through a separate order. At Nov. 19 oral argument, the judges strongly urged the Sacketts and EPA to settle their remaining differences, asking them whether an agreement could be worked out if the case was sent to mediation.” [InsideEPA, 3/9/21 (=)]

 

Permits & Certifications

 

Biden Echoes Trump In Supreme Court Eminent Domain Battle. According to E&E News, “The Biden administration is backing a pipeline developer’s high court fight to use eminent domain to build a 116-mile natural gas project across state-controlled land in New Jersey. Acting Solicitor General Elizabeth Prelogar this week reiterated arguments made by her predecessor that PennEast Pipeline Co. LLC had acted within its authority under the Natural Gas Act to take 42 parcels of land in the project’s path. The pipeline company is seeking to overturn a 2019 3rd U.S. Circuit Court of Appeals decision that found that the use of eminent domain against the will of the state violated its constitutionally protected sovereign immunity. Prelogar argued that the 3rd Circuit decision went against a ‘long unbroken history’ of the government delegating eminent domain authority, dating back to the nation’s founding. In this case, the Federal Energy Regulatory Commission had properly used that authority after it granted PennEast a certificate of public convenience and necessity for its project, she said. ‘[T]he NGA authorizes certificate holders to condemn State-owned property that FERC has determined is necessary for the construction of an interstate pipeline,’ Prelogar wrote in a friend of the court brief this week.” [E&E News, 3/10/21 (=)]

 

Biden’s DOJ Maintains Trump Administration’s Stance In PennEast Case Before Supreme Court. According to Politico, “The Biden administration’s Department of Justice is maintaining the Trump administration’s stance in a case before the U.S. Supreme Court involving the proposed PennEast pipeline’s route through New Jersey. ‘In light of the long unbroken history of colonial, state, and federal delegations of such authority, there is no basis to conclude that, when the States granted the federal government the eminent-domain power in the plan of the Convention, they silently retained the right to veto delegations of its exercise, as long as they could first obtain any property interest in the land at issue,’ the acting U.S. solicitor general stated in a brief filed Monday. Background: The case examines whether, under the federal Natural Gas Act, the PennEast Pipeline Company should be able to seize state-owned land for construction of its nearly 120-mile proposed natural gas pipeline, which would run from Luzerne County, Pa., to Mercer County, N.J. PennEast asked the court to review the 3rd U.S. Circuit Court of Appeals’ 2019 ruling that said the company couldn’t condemn state-owned land to build the pipeline. The ruling effectively prevented PennEast from starting construction on more than 40 properties within New Jersey.” [Politico, 3/9/21 (=)]

 

Biden Administration Backs PennEast Pipeline After Supreme Court Takes The Case. According to NJ.com, “The Biden administration has thrown its support behind a $1 billion natural gas pipeline in the midst of a Supreme Court battle that will shape the future of natural gas and pipeline construction projects across the country. The U.S. Supreme Court decided last month that it would hear the appeal of the PennEast Pipeline Company, which is seeking to build a 120-mile natural gas pipeline that would originate in Pennsylvania and traverse through western Hunterdon County and Mercer County. The company is seeking to overturn a 2019 federal appeals court decision that ruled that PennEast could not use eminent domain powers to seize land owned by New Jersey for pipeline construction. The brief filed under the Biden administration upholds the status quo established by its predecessor, as the Trump administration previously urged the Supreme Court to overturn the decision in December of last year. In the brief filed on Monday, the Justice Department argued that provisions in the National Gas Act enable the construction of the pipeline. Specifically, lawyers said that the Federal Court of Appeals for the Third Circuit lacked the jurisdiction to determine whether the Natural Gas Act authorizes PennEast to condemn certain properties.” [NJ.com, 3/9/21 (=)]

 

Water Pollution

 

Drinking Water

 

Biden EPA Seeks OMB Approval For Review Of Trump-Era LCR Revisions. According to InsideEPA, “The Biden EPA is reviewing changes to the Safe Drinking Water Act lead and copper rule (LCR) that the Trump administration made in its final days and is suggesting it may seek to further revise the rule, sending a notice related to the rule for interagency review and approval by the White House Office of Management and Budget (OMB). ‘EPA is committed to following the law and using the best science to protect people from lead in drinking water,’ an agency spokesperson tells Inside EPA. The item sent for interagency review March 5 ‘is a part of the agency’s ongoing review of the Lead and Copper Rule consistent with the Biden-Harris administration Executive Order [EO] 13990, as well as the Regulatory Freeze Pending Review Memorandum and the Safe Drinking Water Act. Details will be made available in the near future after OMB completes its review,’ the spokesperson says. President Joe Biden’s Jan. 20 EO directed EPA and other agencies to immediately review and ‘take appropriate action’ to potentially undo dozens of Trump actions. The agency met the order’s Feb. 19 deadline for sending a list of suggested rules for revision or rescinding but has not publicly revealed the final list. And Ronald Klain, Biden’s chief of staff, on Jan. 20 announced a regulatory ‘freeze’ for all agencies blocking them from pursuing any rules until the new administration can review the policies.” [InsideEPA, 3/9/21 (=)]

 

Grant Funding Will Help Toledo Replace Residents' Lead Water Pipes. According to The Blade, “City officials intend to contract with an Ann Arbor-based firm to help them identify lead water pipes in Toledo and prioritize which ones to replace first to reduce the lead-poisoning threat. Doug Stephens, the utilities department’s deputy director, said Blue Conduit will pair artificial intelligence with parcel and neighborhood data to help pinpoint exactly where lead service lines are located in Toledo’s neighborhoods. The city received a $200,000 environmental justice grant from the U.S. Environmental Protection Agency and intends to use $120,000 of it to contract with the firm, pending city council approval. ‘What this will enable us to do is to target our program appropriately and make sure that we’re not wasting time and money doing exploratory digging,’ Mr. Stephens said during city council’s agenda-review meeting Tuesday. About $30,000 will go toward supplies for the project, including water filters for households to use temporarily after the lead pipes are replaced, and $50,000 will go to Freshwater Future for resident education and outreach. Officials hope the work can start soon. Mr. Stephens said Blue Conduit worked in Flint when that Michigan city experienced its lead crisis after officials controversially switched water sources, which resulted in harmful lead leaching from pipes into its drinking water.” [The Blade, 3/9/21 (=)]

 

New York State Urged To Lower Lead Levels In Schools. According to WSKG-Radio, “New York should reduce the amount of lead that is allowed in school sinks and water fountains, according to a report from environmentalists. Long Island has the most number of schools that would be impacted, while Western New York and the Hudson Valley rank second and third because of how old the schools are in each region. The New York League of Conservation Voters, which authored the report, urges the state to adopt stricter drinking water standards to reduce lead levels in schools. The ‘5 is the new 15’ report calls on the state to lower the active lead levels in school drinking water from 15 to five parts per billion (ppb). ‘There is no safe level of lead exposure,’ said Julie Tighe, the league’s president. ‘We know that in particular young children are at risk of neurological and behavioral health consequences associated with developing bodies and that is something that lasts forever. There is irrefutable damage that is caused from that, and it is something that is completely preventable.’ In 2016, the state remediated 47,887 drinking water sinks and fountains to bring the lead levels to code. At that time, the regulation was set to 15 ppb and cost the state nearly $27.8 million to fix.” [WSKG-Radio, 3/9/21 (=)]

 

PFAS

 

Maine Man Sues Paper Mill Over Levels Of 'Forever Chemicals'. According to Associated Press, “A Maine man is suing a paper mill company that operates in the state about levels of long-lasting chemicals in wells and elsewhere. Nathan Saunders of Fairfield filed the lawsuit Friday against Boston-based Sappi North America. The lawsuit concerns per- and polyfluoroalkyl compounds, which are also called PFAS and are sometimes referred to as ‘forever chemicals.’ The lawsuit makes the claim that the chemicals in water sources in Somerset County came from biosolids from the mill’s wastewater treatment plant, the Morning Sentinel reported. An attorney for Saunders, Brian Mahany, told the Sentinel that the damages ‘will be in the tens of millions of dollars.’ He said homeowners have suffered from elevated levels of PFAS in their water. Sappi North America told the Morning Sentinel it ‘strongly disputes’ the allegations. The company touted its record of environmental stewardship. State officials have found dozens of wells in Fairfield had higher levels of the compounds than the federal limit. The Maine Department of Environmental Protection does not have enough information at the moment to identify parties that are responsible for elevated PFAS levels, said David Madore, the department’s acting deputy commissioner. The department has ‘remained focused on providing safe drinking water,’ he said.” [Associated Press, 3/9/21 (=)]

 

Toxic Algae

 

Pilot Project Pays Farmers To Keep Phosphorus From Reaching Lake Champlain. According to WCAX-TV, “Vermont is making progress at cleaning up Lake Champlain but concentrations of phosphorus that lead to toxic algae blooms are still a big problem. Our Calvin Cutler reports on a new initiative to pay farmers to help stop phosphorus from reaching the lake. At issue, cow manure washing off Vermont farms, running into streams and then into Lake Champlain, creating toxic algae blooms. In the last five years, Vermont has made big strides in keeping phosphorus out of the lake, with a nearly 60,000-pound reduction from agricultural lands alone. Plus, new rules for road and stormwater runoff are in the works. But even then, we still have a long way to go. An experimental pilot project funded by a $5 million federal grant looks to speed up the process. ‘This program is looking to build on the current success of current programs,’ said Ryan Patch of the Water Quality Division of the Vermont Agency of Agriculture. Patch is working to spearhead the new ‘pay for performance’ program which looks to pay farmers for the difference of the total pounds of phosphorus reduced compared to federally required amounts. Farmers can use cover crops, manure injection, filter strips and other methods to reduce runoff from fields, especially in the spring. The goal is to reduce 15,000 pounds of phosphorus.” [WCAX-TV, 3/9/21 (=)]

 

Plastic Pollution

 

Municipalities Sue Pennsylvania Over Bar On Local Plastic Bag Bans. According to InsideEPA, “Philadelphia and three other municipalities are suing the state of Pennsylvania and are asking a state court to void a 2020 law that bars local governments from enacting or enforcing novel plastic bag bans, with the plaintiffs charging that the state law is unconstitutional. In their suit filed in Commonwealth Court March 3, Philadelphia and the local governments of West Chester, Lower Merion and Narberth are seeking to assert their right to enact and implement plastic bag bans, asking the court to declare unconstitutional a provision passed by the state General Assembly last May, according to a March 3 press release from the city of Philadelphia. The measure barred local governments from enacting or enforcing rules or ordinances that impose taxes related to restricting the sale, use or disposition of single-use plastics, it says. In effect, the new legal provision placed a bar on localities’ single-use plastic bag bans. Philadelphia approved such a ban in 2020 and delayed implementation, due to the COVID-19 pandemic, until July 1, 2021, according to the press release. The city’s ban bars supermarkets, convenience stores, department stores, restaurants and other establishments from providing customers with single-use plastic bags, or face fines for doing so.” [InsideEPA, 3/9/21 (=)]

 

Environmental Justice

 

AP | Jackson, Miss., Inches Toward Resolving Crisis. According to E&E News, “Running water has been restored to most parts of Mississippi’s capital, three weeks after the majority of Jackson homes and businesses lost service during a winter storm that coated parts of the South in snow and ice. Jackson has a population of about 160,000. The entire city remained under a boil-water notice yesterday as crews continued working to restore full pressure to the system. Some neighborhoods in south Jackson that are at higher elevations still had low water pressure, public works director Charles Williams said. The winter storm froze parts of Jackson’s water treatment facilities (Greenwire, March 3). Bursting water pipes are a common problem in the city with aging infrastructure, but this winter system caused an unusually large number of breaks. Drinking water and water for flushing were still being distributed to people in need. During a news conference yesterday, Democratic Mayor Chokwe Antar Lumumba thanked people who have donated to Jackson residents, including Birmingham, Ala., which sent 28 pallets of water last week and was sending more yesterday. ‘Mayor [Randall] Woodfin wanted us to know that the city of Birmingham loves us,’ Lumumba said. Some Jackson schools reopened yesterday after being closed because of water problems. City officials said the goal is to reach water pressure of 90 pounds per square inch; it had reached 89 by midday Sunday. The city said there was a ‘minor mechanical issue’ with screens where water is brought from a reservoir to one of the two water treatment plans. Williams said contractors continued working on that yesterday, and that problem could be solved soon.” [E&E News, 3/9/21 (=)]

 

Water Infrastructure

 

AP | Maui Residents Evacuated After Officials Feared Dam Breach. According to E&E News, “Heavy rains prompted evacuations over fears of a dam breach on the Hawaiian island of Maui, and officials asked people not to return to their homes today because flood advisories were still in effect. The National Weather Service reported that 13.2 inches of rain fell in the Haiku area of Maui’s north coast between 7 a.m. and 3 p.m. yesterday. Maui and all of Hawaii’s islands are under a flash flood watch amid heavy rains expected to last through today. About six homes on Maui were heavily damaged or destroyed, Maui County Mayor Michael Victorino’s office said late yesterday. He urged people to be vigilant because there were fears that landslides could happen. ‘Ladies and gentlemen, this is a real flooding situation we have not seen in a long time. In fact, some of the residents have told me that this is the worst they’ve seen in over 25 years,’ Victorino said on Facebook. The Maui Fire Department said it responded to more than a dozen calls for help from residents trapped by rising waters. Officials initially thought that Kaupakalua Dam in Haiku was breached by floodwaters, ‘but after closer inspection, county officials determined there was no structural damage,’ said a statement from Maui County late yesterday. Water flowed over the top of the dam’s reservoir, but the dam itself did not fail, said Shan Tsutsui, the chief operating officer of Mahi Pono, a co-owner of the dam.” [E&E News, 3/9/21 (=)]

 

Idaho Senate Formally Opposes Rep. Simpson’s Plan To Remove Snake River Dams. According to Idaho Statesman, “Idaho senators want to send a message to Congress: Don’t remove the Snake River dams. A month after Eastern Idaho’s U.S. Rep. Mike Simpson released a $33.5 billion proposal to remove four of Washington’s Snake River dams in efforts to save endangered salmon, the state Senate voted 28-6 to approve a joint memorial opposing the removal or breaching of the Columbia-Snake River dams. Senate Joint Memorial 103 would be the Idaho Legislature’s position sent to the U.S. Senate president, U.S. House speaker and congressional delegates for Idaho, Montana, Washington and Oregon. The measure now moves to the Idaho House of Representatives. Rep. Regina Bayer, R-Meridian, who sponsored the legislation, said the plan would harm the Port of Lewiston and put communities at risk, and she claimed it would fail to save salmon runs. ‘Breaching the dams on the lower Snake River would be devastating to the Pacific Northwest and all of us who live here,’ Bayer said. Democrats criticized the legislation for its wording and misleading statements suggesting that scientific evidence doesn’t back the claims that removing dams would help mitigate the loss of salmon runs. Several groups of scientists have recently said the plan for dam removal is vital for salmon recovery.” [Idaho Statesman, 3/9/21 (=)]

 

Op-Ed: Listen Up: A Republican Says We Have To Breach Four Snake River Dams. According to an op-ed by Jacques Leslie in Los Angeles Times, “For a conservative Republican, U.S. Rep. Mike Simpson of Idaho did something extraordinary last month. By unveiling a proposal for a giant Pacific Northwest infrastructure overhaul that includes breaching four perennially disputed, fish-eradicating hydroelectric dams on the Snake River, he displayed the courage to accept an environmental reality that other conservatives have refused to face: These dams must go. The four barriers are part of a 900-mile-long gauntlet, including eight major dams, that salmon and steelhead must run on their way from spawning grounds in Idaho, down the Snake River through Washington state and the Columbia River to the Pacific Ocean, then back again a few years later. The Snake River basin once generated nearly half the salmon produced in the Columbia watershed, but the journey out and back to Idaho has proved so arduous that all of the river’s wild salmon runs are either threatened or endangered. Taking down the dams may not guarantee the fishes’ future, but if the dams remain, says Simpson, ‘the salmon and steelhead are on a certain path to extinction.’ In addition, as the cost of solar and wind energy has dropped — it’s now far below the cost of the hydropower — the dams have become a financial burden for the Bonneville Power Administration, the self-funding federal agency that markets the dam-generated electricity, along with power from other sources, throughout the region. Maintenance costs for the 50-year-old structures, plus the added cost of trying to mitigate their environmental impacts, are pushing the dams toward obsolescence.” [Los Angeles Times, 3/9/21 (+)]

 

Western Water

 

Boebert Unveils Bill To Halt Federal 'Water Grabs'. According to E&E News, “Republican Rep. Lauren Boebert of Colorado is pushing legislation that would bar federal agencies from using any permit, lease or other agreements to transfer water rights. The ‘Western Water Security Act’ would require the departments of Agriculture and the Interior to recognize states’ long-standing authority for overseeing water rights when making any new policy, rules or agreements, and prohibit the agencies from tying any of those decisions or agreements to changes in water rights. Boebert in a release said Colorado’s 3rd District, which she represents, is no stranger to ‘federal government attempts to seize control of private property and private water rights.’ ‘The Western Water Security Act prevents federal water grabs, protects private property rights, and helps ensure an abundant supply of clean water for future generations,’ the congresswoman said. Boebert said the legislation is critical to address past conflicts over water rights, pointing to a dispute that arose when the U.S. Forest Service proposed requiring ski areas in Colorado to turn over water rights to the U.S. in order to renew or amend special use permits to operate on agency lands (E&E Daily, Oct. 10, 2013). Another example involved the Bureau of Land Management’s requirements around water rights tied to the approval of grazing allotments. The bill has the backing of farming and water groups including the American Farm Bureau Federation, National Water Resources Association, Colorado Cattlemen’s Association and Family Farm Alliance.” [E&E News, 3/10/21 (=)]

 

Cascade Snowpack More Vulnerable To Climate Change Than Inland Neighbors, Study Suggests. According to Oregon Public Broadcasting, “New research suggests mountain snowpack in the Cascades is among the most vulnerable in the U.S. to the effects of climate change. Researchers with the Scripps Institution of Oceanography at the University of California San Diego say warming will likely hit coastal mountain ranges like the Cascades much harder than their northern inland neighbors. ‘What’s happening in the Cascades is even a small amount of warming has this huge impact on the amount of time that the temperature’s really cool enough to have snow on the ground,’ climate scientist and lead author Amato Evan said. Each winter, snow covers our mountains in a thick white blanket. That snow melts as the weather heats up until eventually, at some point during the spring or summer, the mountains are virtually bare — save for the glaciers that clad several peaks in ranges like the Cascades. That day will get earlier and earlier on average as the planet warms. The researchers hypothesize snow in the Cascades will melt up to a month earlier than it does now with warming of 1 degree Celsius. The same change in temperature would only shift when the snow melts in the Rockies by a day or two.” [Oregon Public Broadcasting, 3/9/21 (=)]

 

Arizona Seeks To Create Surface Water Protections After Clean Water Act Rollback. According to KOLD-TV, “Since June, a large proportion of Arizona’s rivers, lakes and streams have not been protected by the Clean Water Act, the result of changes to federal rules by the Trump administration in 2019. The state had relied on the landmark law to keep its arid streams free of pollution. But after the federal protections were limited, Arizona set to work on its own set of surface-water quality standards. For the past two years, the Arizona Department of Environmental Quality has been working to craft the new rules with public input. Trevor Baggiore, director of the agency’s water quality division, said a bill currently moving through the Legislature will help fill the regulatory gap. ‘This legislation provides immediate protection for Arizona’s wet waters. These are waters that we drink, waters that we fish in and waters where we recreate,’ Baggiore said. The new program would create a list of protected surface waters determined by the state and a panel of farmers, city leaders, industry groups and environmentalists. That list could be modified in the years to come through ADEQ’s rulemaking process. But a group of 16 environmental groups say the bill is lacking. They say one gaping hole is that ephemeral waters — those that flow only after rain or snow — will not be protected. Kris Randall, president of the Arizona Riparian Council, said that ignores Arizona’s specific climate and environmental realities.” [KOLD-TV, 3/9/21 (=)]

 

Flooding

 

To Fight Flooding, Norfolk Plans To Renovate — And Retreat. According to E&E News, “When it rains in Norfolk, Va., the residents of the Chesterfield Heights and Grandy Village neighborhoods worry about getting cut off from the rest of the city. That’s because with a highway on one side and the Elizabeth River on the other, the two predominantly Black neighborhoods have only two main arteries in and out — and flooding routinely blocks one of them. It wasn’t always like this, but a combination of sea-level rise and more intense precipitation caused by global warming has transformed what was once a nuisance into something scary. So Norfolk decided to act. With help from a $112 million federal grant, the neighborhoods are getting a makeover that includes a tidal gate, restored wetlands and a park that serves as a stormwater retention area. The city is hoping the area will be a model for coping with the climate challenges to come. The man overseeing the project is Norfolk’s Chief Resilience Officer Douglas Beaver. He’s charged with figuring out how to defend the city from the worst impacts of climate change. Norfolk is experiencing the fastest sea-level rise on the U.S. East Coast, with a projected increase of roughly 1.5 feet by 2050, the city estimates. Beaver has a lot to do. ‘We are combating this on the front lines,’ he says. ‘Just a few blocks from my house, the grass in the park won’t grow because high tide routinely tops the bulkhead. That’s happened since I’ve lived here. It is the kind of effects that you see all over this town.’” [E&E News, 3/10/21 (=)]

 

 

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