Clean Water Act

 

Court Says Anti-Pebble Legal Challenge Can Advance. According to Politico, “A split federal appellate court ruled on Thursday that the Trump administration’s decision to withdraw a proposed preemptive EPA veto of the Pebble Mine in Alaska can be subjected to a legal challenge. Background: Trout Unlimited and other groups sued after the Trump administration withdrew the Obama-era proposal that would have effectively blocked Bristol Bay area mining projects like the Pebble Mine, which would have extracted silver, gold, copper and other metals. A federal judge in Alaska last year tossed the suit after ruling that the withdrawal was a discretionary decision not subject to judicial review. Details: On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld the lower court’s ruling that Clean Water Act does not include a ‘meaningful legal standard’ allowing courts to review such decisions. But the panel split on the question of whether EPA’s own regulations created a reviewable standard, with the majority ruling that the rules allow EPA to withdraw proposals such as this one ‘only if [the agency] determines that an unacceptable adverse effect is not likely.’ ‘Even though the statute contains a broad grant of discretion, the agency’s regulations contain a meaningful legal standard governing the Regional Administrator’s withdrawal of a proposed determination. Accordingly, the decision is subject to judicial review,’ wrote Judge Susan Graber, a Clinton appointee. She was joined by Judge Robert Dawson of the U.S. District Court for the Western District of Arkansas, a Clinton appointee sitting by designation.” [Politico, 6/17/21 (=)]

 

Court OKs Suit Over Trump's Retreat On Pebble Mine Veto. According to E&E News, “A federal appeals court ruled today that EPA’s 2019 decision to remove restrictions on mining in southwest Alaska’s Bristol Bay region is subject to judicial review. President Obama’s EPA handed down a proposed veto in 2014 to preemptively block copper and gold mining in wetlands located upstream from the nation’s premier sockeye salmon fishery. EPA withdrew the veto proposal under President Trump, allowing Pebble LP’s mining application to move forward. Fishery conservation group Trout Unlimited argued in a lawsuit that EPA should have to defend its withdrawal of the ‘proposed determination.’ An attorney for EPA said in oral arguments last year that no law applied to the withdrawal, so it shouldn’t be reviewable (Greenwire, Aug. 13, 2020). In a split decision, the 9th U.S. Circuit Court of Appeals ruled that no standard exists under the Clean Water Act, but EPA regulations do contain a legal requirement making the withdrawal reviewable in court. Regulations allow ‘EPA to withdraw a proposed determination only when an ‘unacceptable adverse effect’ on specified resources is not ‘likely,’ Judge Susan Graber, a Clinton appointee, wrote in the three-judge panel’s ruling. In dissent, Judge Daniel Bress said, ‘Sometimes there really is just no law to apply.’ The Trump appointee wrote: ‘The majority opinion turns on a serious misreading of the governing regulations, rewriting the rule that EPA set for itself and inserting courts into what was supposed to be the preliminary stages of a discretionary agency review process.’” [E&E News, 6/17/21 (=)]

 

Permits & Certifications

 

9th Circuit Finds Courts May Review EPA Withdrawals Of CWA Permit ‘Veto’. According to InsideEPA, “A federal appellate court in a precedent-setting decision has found that courts can review whether an EPA withdrawal of a proposed Clean Water Act (CWA) permit ‘veto’ violated the Administrative Procedure Act (APA) but has left it to a lower court to determine whether a Trump EPA withdrawal of a proposed permit veto of the Pebble Mine was arbitrary and capricious. The 2-1 ruling from the U.S. Court of Appeals for the 9th Circuit issued June 17 in Trout Unlimited, et al. v. Pirzadeh follows oral argument last year where the judges openly struggled with whether they had jurisdiction -- and the related question of what legal standard to use -- to review a legal challenge to the Trump EPA’s 2019 decision to withdraw a proposed, preemptive CWA section 404 ‘veto’ of the planned Pebble Mine in Alaska. The ruling affirms in part and reverses in part an April 2020 ruling from the U.S. District Court for the District of Alaska that found EPA’s withdrawal was an enforcement decision shielded from court challenges under the APA. The majority opinion, written by Judge Susan Graber, a Clinton appointee, and Senior Judge Robert Dawson, a Clinton appointee to the U.S. District Court for the Western District of Arkansas, sitting on the 9th Circuit panel by designation, agrees with the Alaska district court that the CWA contains no meaningful legal standard in its broad grant of discretion to the EPA under section 404(c).” [InsideEPA, 6/17/21 (=)]

 

Water Pollution

 

Coal Ash

 

St. Johns County Woman Sounds Alarm On Coal Ash After Barge Spill. According to WJXT-TV, “A St. Johns County woman is speaking out about the Environmental Protection Agency’s classification of coal ash as ‘nonhazardous waste’ after a damaged barge spilled 9,300 tons of the substance in the waters off Atlantic Beach. In an interview Wednesday, Susan Wind told News4Jax she wants to get the word out about the dangers of coal ash after learning how much of the substance has been spilled. She said she speaks from experience: her daughter was diagnosed with thyroid cancer, a diagnosis Wind attributes to coal ash contamination. ‘When I saw there was a spill, I wasn’t surprised, to be honest with you,’ Wind said. ‘Because I don’t think, unfortunately, I don’t think coal ash has been handled properly. And it never has been.’ As News4Jax previously reported, an internal email from the Florida Fish & Wildlife Conservation Commission obtained by the I-TEAM shows the state estimates at least 9,300 tons of coal ash, also known as Agremax, has leaked from the 418-foot barge since it ran into the jetties off Atlantic Beach in March.” [WJXT-TV, 6/17/21 (=)]

 

Toxic Algae

 

Amid Red Tide Outbreak, Florida Beckons Visitors To Beaches. According to Associated Press, “Plumes of toxic oceanic bacteria known as red tide continued to move up the western Florida coast, strewing thousands of dead fish on beaches while state officials tried to reassure Floridians and potential tourists Thursday that the outbreak was being taken seriously but isn’t as bad as it would seem. Gov. Ron DeSantis on Thursday assembled a team of experts in St. Petersburg to describe the work that is underway to better understand and control the latest outbreak. As the state’s economy continues to emerge from the devastation of the coronavirus pandemic, images of beaches littered with dead fish could threaten to keep visitors from flocking to seaside communities during the July 4 holiday. The governor said it was important to let ‘folks know that these places are open.’ ‘The hotels, the restaurants, the beaches are open,’ he said. Three years ago, massive blooms of the red tide prompted some beaches to close. The outbreak killed tons of aquatic life, littering coastlines with rotting fish and keeping people off the sand and water.” [Associated Press, 6/17/21 (=)]

 

Wastewater

 

Citgo To Pay $19.7M For Louisiana Spill Environmental Damage. According to Associated Press, “Citgo Petroleum Corp. of Houston has agreed to pay $19.7 million for environmental damage from a 2006 spill at a Louisiana refinery, the U.S. Department of Justice said Thursday. The agreement settles both state and federal environmental claims from the 2.2-million-gallon (8.3- million-liter) spill at the Lake Charles refinery’s wastewater treatment facility, a news release said. State and federal trustees will work together on restoration projects using nearly $19.2 million, the statement said. It said the remaining $528,000 will cover remaining costs of the damage assessment. ‘Oil companies have a responsibility to protect our waters, people, wildlife and diverse habitats from oil spills, and those who violate that duty will be held accountable for the harms they cause,’ said Jean E. Williams, acting assistant attorney general for the department’s Environment and Natural Resources Division. The payment is in addition to $97 million in earlier penalties and fines, the Justice Department said. It said Citgo has paid an $81 million Clean Water Act penalty, a $13 million criminal fine and $3 million to the Louisiana Department of Environmental Quality. The ‘slop oil’ and ‘untold millions of gallons of oily wastewater’ spilled into the Calcasieu River and other waterways from overflowing wastewater tanks during a storm in 2006, the department said. It polluted about 150 miles (240 kilometers) of shoreline, killed birds and fish, contaminated habitats, closed the ship channel, and disrupted recreational uses of the river and lakes, Thursday’s news release said.” [Associated Press, 6/17/21 (=)]

 

Groundwater

 

States' Feud Delivers Supreme Court's First Groundwater Test. According to E&E News, “The Supreme Court may hear its first groundwater battle later this year — and the case could force the justices to consider an unusual claim. Unlike other interstate water wars that reach the high court, Mississippi has argued that it has sole legal rights to groundwater in an aquifer that straddles the Tennessee border. The claim is a novel departure from the Supreme Court’s traditional approach of dividing water supplies equitably and has set off alarm bells for other states that share water with their neighbors. Mississippi’s argument: For decades, Memphis Light, Gas and Water Division has unlawfully sucked up billions of gallons of groundwater in a sub-unit of the Middle Claiborne Aquifer that is exclusively owned by the Magnolia State. The result is a massive drawdown in the aquifer — known as a ‘cone of depression’ — that makes it so Mississippi has to dig deeper and more expensive wells to bring the water it needs to the surface. Because the resource has already been unfairly developed, Mississippi argues, the remainder of the aquifer’s water can’t now be fairly divided. The state is seeking more than $600 million in damages. ‘What Tennessee has done is robbed the ability of the people of Mississippi to fully develop the aquifer,’ said Richard Spruill, principal hydrogeologist and president of Groundwater Management Associates Inc. in North Carolina. Spruill has worked as an expert for Mississippi in the case.” [E&E News, 6/17/21 (=)]

 

Plastic Pollution

 

Sierra Club Sues Coca-Cola, Plastic Water Bottlers. According to E&E News, “The Sierra Club today sued companies that bottle brands like Dasani, Poland Spring and Niagara, alleging their bottles are falsely advertised as ‘100% recyclable.’ ‘Today’s lawsuit is an important step toward ending the unchecked use of plastic that cannot be recycled,’ Sierra Club Executive Director Michael Brune said in a statement. ‘This misinformation campaign seriously harms our ability to collectively create a livable planet and a sustainable future.’ Lawyers for the advocacy group are filing two lawsuits, one on behalf of the group and one on behalf of consumers. Both lawsuits allege that Coca-Cola Co., Niagara Bottling LLC and BlueTriton Brands (formerly Nestlé Waters North America Inc.) violate California’s Environmental Marketing Claims Act. A spokesperson for Coca-Cola said the company does not comment on pending litigation. Niagara and BlueTriton did not respond to a request for comment by publication time. … The Sierra Club is asking courts to stop the bottlers from using the ‘100% recyclable’ label and to compel cash refunds for consumers, arguing that the number of bottles sold and their prices were inflated by the label. Judith Enck, a former regional EPA administrator and president of Beyond Plastics, said the recycling labels are a ‘public relations scheme’ designed to deceive consumers. ‘Quite honestly, we need companies to stop lying about the recycled content and recyclability of their products, and we need state regulators to start enforcing the law so consumers are not misled,’ Enck said.” [E&E News, 6/17/21 (=)]

 

Western Water

 

‘There’s No Water,’ Says California Farm Manager Forced To Leave Fields Fallow. According to Reuters, “Salvador Parra, the manager of Burford Ranch in California’s Central Valley agricultural breadbasket, is worried about the lack of water. California’s worst drought since 1977 has forced Parra to leave fallow 2,000 of his 6,000 acres and dig deep for water to save the crops already planted. ‘There’s not very much being grown out there, just because there’s no water. There’s literally no water,’ said Parra. In a good year, the ranch grows everything from garlic, onions, tomatoes and alfalfa to cotton. This year, Parra needs emergency water sources just to bring a reduced crop to harvest. One well he is depending on is 800 feet (244 m) deep ‘and we’re having to pump it all the way up to the surface so that we can irrigate our crops.’ The pipe system is costing the ranch thousands of dollars, but other options are just out of reach, Parra said. He said the water that is available, called supplemental water, is very expensive - $2,000 an acre foot versus the regular price of $200-$250 an acre foot. ‘So, ten times the cost. We can’t afford it.’” [Reuters, 6/19/21 (=)]

 

Flooding

 

Official Paints Grim Picture Of Flood Program, Urges Reforms. According to E&E News, “A senior Federal Emergency Management Agency official warned this morning that the program that insures properties against flood damage ‘is severely flawed if not broken’ and urged Congress to approve a sweeping overhaul this summer. David Maurstad, a FEMA official who runs the agency’s National Flood Insurance Program, told the Senate Banking, Housing and Urban Affairs Committee that Congress must reform the NFIP to encourage more people to buy flood insurance and to reduce risky development in flood zones. ‘Right now, we are simply not seeing the outcomes that we need,’ Maurstad said, citing an insurance coverage gap and ongoing development in areas that should be left as open space to absorb floodwaters. In his written statement to the committee, Maurstad said, ‘The NFIP is simply not fiscally sustainable in its present form,’ though he did not make the comment when he testified. Maurstad’s warnings come as the House and Senate are trying to reauthorize and overhaul the insurance program for the first time since 2014 and as Congress faces a Sept. 30 deadline before a temporary reauthorization expires. The NFIP provides most of the nation’s flood insurance, covering 5 million residential and commercial properties. Maurstad urged Congress to create a new federal program to help low- and moderate-income households buy flood insurance through the NFIP.” [E&E News, 6/17/21 (=)]

 

Misc. Waterways

 

McCabe Highlights Budget Plan To Elevate Environmental Justice Office. According to InsideEPA, “EPA Deputy Administrator Janet McCabe is touting EPA’s plan to elevate environmental justice (EJ) by creating a new stand-alone EJ office, to be led by a Senate-confirmed official, with greater authority than the current program within the administrator’s office, as officials embark on a stepped-up push to boost staff and funding for such efforts. ‘For too long we have known that environmental burdens . . . are not borne equitably in this country,’ McCabe said June 15 during an Air & Waste Management Association’s virtual conference, referencing air and water pollution, proximity to contaminated sites and industrial discharges as well as exposure to toxic chemicals and climate impacts. She remarked that it ‘isn’t fair and it isn’t right, and we need to change it.’ Currently, EPA’s Office of Environmental Justice (OEJ) is housed within the Office of Policy -- which sits in the administrator’s office. But McCabe said that EPA’s fiscal year 2022 budget request includes ‘a real emphasis on advancing environmental justice and civil rights, including creating a whole new office that will be on a par with offices like the Office of Air and the Office of Water to bring together the agency’s focus on environmental justice.’” [InsideEPA, 6/17/21 (=)]

 

Study: Extreme Weather May Not Lead To Increased Support For Climate Action. According to Yale Climate Connections, “Climate scientists have been warning for decades that global warming will lead to more extreme weather. And so as more Americans start to personally experience disastrous weather events, it’s reasonable to ask whether they will support aggressive climate action. The short answer is already clear: not necessarily. The signal of climate change is difficult for people to notice against the noisy background of day-to-day and seasonal changes in weather. But even when a neighborhood, city, or region experiences truly unusual weather, some will see it as clearly connected to global warming while for others, the connection won’t even occur to them. Just as two people can respond completely differently to political events, current fashions, or to a football game, two individuals can share what seems to be an identical experience and yet come away with completely different conclusions about what happened, what caused it, and what to do about it. … In our study, people did not link local increases in heavy rainfall with global warming. Given that the connections between global warming and precipitation patterns are more complex than those for temperature alone, perhaps this is not surprising. Yet the relationship is important and has major consequences for our economy and health. Scientists recently calculated that the impact of global warming on Hurricane Sandy includes a price tag of $8 billion from the flooding damage. But many Americans don’t understand how carbon pollution could cause an increase in flooding and hurricane damage. For them, the dots have not been connected yet between cause and effects.” [Yale Climate Connections, 6/17/21 (+)]

 

 

Please do not respond to this email.

If you have questions or comments please contact mitch@beehivedc.com