Clean Water Act

 

NWPR & WOTUS

 

'It's Really A Mess': Army Corps Guidance On Water Protections Sparks Confusion. According to Politico, “The Army Corps of Engineers earlier this month quietly posted new guidance on its website stating it and EPA ‘will not rely on’ decisions made under the Trump-era rule governing whether a project involved federally protected waters and thus required federal permits. The guidance could impact potentially hundreds of projects, including high-profile proposed mines in Georgia and Arizona, and is meant to clarify the effect of court decisions vacating the Trump regulation, known as the Navigable Waters Protection Rule. The Biden administration is developing a replacement, and in the meantime pre-2015 standards control agency decisions. But for many water policy experts, it has created more questions than it answered. ‘I would not describe this as something that provides a lot of clarity,’ said Kelly Moser, the head of the Southern Environmental Law Center’s Clean Water Defense Initiative. Under the Clean Water Act, mines and other projects that impact federally protected waters must go through a federal permitting process. The Army Corps determines that on a case-by-case basis, but the definition has changed several times in recent years, first with the Obama administration’s Waters of the U.S. rule (Reg. 2040-AF30), then the Trump administration’s replacement (Reg. 2040-AF75), and now a forthcoming Biden regulation (Reg. 2040-AG19).” [Politico, 1/20/22 (=)]

 

Permits & Certifications

 

Court May Back Mountain Valley Pipeline, Despite NEPA Fight. According to Politico, “A federal appeals court yesterday appeared ready to uphold an approval to extend the controversial Mountain Valley pipeline. During virtual arguments yesterday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit appeared skeptical of green groups’ claims that energy regulators had failed to take a hard look at the environmental impact of building the Southgate extension connecting the natural gas pipeline to North Carolina. Chief Judge Sri Srinivasan said it wasn’t enough for the groups opposing the project’s Federal Energy Regulatory Commission certificate to argue that they disagreed with the agency’s reasoning. ‘Even if there is some force to what you are saying and someone might conclude the commission could have made a different decision,’ Srinivasan said, ‘our question is whether the commission gave it a hard look and not whether the conclusion was correct.’ … The Sierra Club and other environmental challengers argued that FERC had not done enough to consider the potential erosion risks to stream crossings of the Southgate extension, particularly since construction of the Mountain Valley pipeline had resulted in problems with erosion and sediment in waterways.” [Politico, 1/20/22 (=)]

 

Water Pollution

 

Drinking Water

 

How A Toxic Chemical Ended Up In The Drinking Water Supply For 13M People. According to Politico, “New Jersey’s largest drinking water supplier discovered a toxic chemical in the river where it gets water for hundreds of thousands of customers, setting off a major search for polluters that led back to a Pennsylvania wastewater treatment plant and a South Jersey company. The chemical New Jersey American Water Co. found, 1,4-Dioxane, is a byproduct of plastic manufacturing that is considered a likely carcinogen by the federal government. While the chemical has been found in water supplies before, this discovery in early 2020 set off alarms because of the high levels in a section of the Delaware River close to American Water’s treatment plant in South Jersey that sends drinking water to customers in Burlington, Camden, Gloucester and Salem counties. It wasn’t just a New Jersey problem. The Delaware and all of its tributaries provide drinking water to more than 13 million people along the East Coast — including New Jersey, New York, Pennsylvania and Delaware — and officials had no idea how the chemical was getting into the river. What they found, the details of which have not been previously reported, is a gap in state and federal regulations that allowed an unsafe chemical to end up in an essential water supply. There are no federal limits for how much 1,4-Dioxane can be in drinking water, though New Jersey is proposing new rules that would limit the chemical to .33 parts per billion.” [Politico, 1/20/22 (=)]

 

Coal Ash

 

Judges Question Redressability Of EPA’s State Coal Ash Program Approval. According to InsideEPA, “Federal appellate judges are questioning whether they can provide judicial relief to environmentalists challenging EPA’s first-time approval of Oklahoma’s permit program for coal ash disposal, suggesting the groups would be worse off if the court voids the agency’s approval of the state program as that would revert it back to coverage under a 2015 EPA rule. During oral argument Jan. 19 before the U.S. Court of Appeals for the District of Columbia, environmentalists in Waterkeeper Alliance, Inc., et al. v. Michael Regan, et al. conceded Oklahoma’s coal ash program would revert to coverage under EPA’s 2015 rule, which the D.C. Circuit previously found to be unlawfully weak. But the environmentalists’ attorney also told the three-judge panel at argument that if its ruling favors the appellants, its holdings on public participation requirements in this case would lead to EPA following the same requirements for its federal permitting program. That argument did not appear, however, to win over the panel. Waterkeeper Alliance, Sierra Club and an Oklahoma-based environmental group are challenging a district court decision that upheld broad elements of EPA’s review process for approving state permit programs for coal ash disposal, with the groups contesting the agency’s first-time approval of such a program.” [InsideEPA, 1/19/22 (=)]

 

Wastewater

 

EPA Agrees To Investigate Civil Rights Claim Over North Carolina Hog Farms. According to InsideEPA, “EPA has accepted a petition alleging that North Carolina officials are violating the Civil Rights Act by allowing discriminatory pollution impacts from hog farms in the state in the latest investigation by the agency’s External Civil Rights Compliance Office (ECRCO), which is promising beefed up enforcement powers. The Southern Environmental Law Center (SELC) filed the complaint last fall on behalf of a local chapter of the NAACP and the North Carolina Poor People’s Campaign. EPA Jan. 13 accepted the complaint and will determine whether the North Carolina Department of Environmental Quality (DEQ) discriminated against the residents of Duplin and Sampson counties by issuing three individual swine animal waste management system permits and another permit to authorize construction of an anaerobic digestion animal waste treatment system to produce renewable energy, the acceptance letter says. ECRCO will also determine whether DEQ has in place procedural safeguards to ensure that all recipients of EPA funding must have to comply with nondiscrimination requirements. These include having specific policies to ensure meaningful access to DEQ services, programs and activities, as well as a public participation policy consistent with Title VI, the letter adds.” [InsideEPA, 1/19/22 (=)]

 

Rehoboth Bay Reopens To Shellfish Harvesting After Spill. According to Associated Press, “Delaware officials announced the reopening of the Rehoboth Bay to shellfish harvesting Tuesday after a 21-day emergency closure prompted by a spill of thousands of gallons of untreated wastewater from a residential sewer line. The Department of Natural Resources and Environmental Control first announced the moratorium on harvesting oysters, clams and mussels on Dec. 28. Officials said untreated wastewater was discharged into the bay when a plumbing contractor cut a sewer line in Mariner’s Cove mobile home park in the Long Neck area, The News Journal reported. The shellfish harvest was closed because of the potential public health risk from shellfish that may have been affected by the spill. Following U.S. Food and Drug Administration Guidelines under the National Shellfish Sanitation Program, officials determined that 21 days allowed for an abundance of caution for public protection against pathogens of concern, that might be associated with wastewater exposure.” [Associated Press, 1/20/22 (=)]

 

Plastic Pollution

 

Swapping Plastic For Plants In Glitter. According to AZO Materials, “Glitter is traditionally made from colored plastic sheets. It is used in a wide variety of products, including art and craft supplies and cosmetics. When it is disposed of in drains, it enters the ocean and contributes to the growing problem with microplastic (particles under 5mm in length) pollution. Microplastics are such a problem that they are found in every marine environment, from the surface to the seafloor. They are consumed by marine organisms, which then pass them into the food chain. Microplastic accumulation in the stomachs of birds can lead to death by starvation. They are also consumed by human populations when fish and shellfish are eaten. The two main sources of microplastics are from larger plastic objects such as packaging and nets, which are degraded by sunlight, mechanical action, and chemical action, and from microbeads. Microbeads do not degrade at all and are likely to proliferate in the oceans for hundreds of years according to some studies. According to National Geographic, it is estimated that up to 8 trillion microbeads entered US waters daily in 2017. Many countries are now banning or have banned microbeads in products.” [AZO Materials, 1/19/22 (=)]

 

Water Infrastructure

 

Regan Touts EPA Environmental Justice Efforts, Water Loans. According to Politico, “Now the administration is leveraging the work of agencies like EPA and the Army Corps of Engineers to dole out the funds and see through its agenda of boosting climate resilience, reducing pollution and ensuring underserved communities receive their fair share of federal funds (Greenwire, Jan. 19). Regan at the conference today unveiled $688 million in Water Infrastructure Finance and Innovation Act (WIFIA) loans to boost water infrastructure in the cities of Baltimore and Milwaukee, as well as the San Francisco Bay Area. The EPA head highlighted that during his ‘Journey to Justice’ tour last fall, he saw how vulnerable communities haven’t received their fair share of federal funding but that states have a unique opportunity under the newly minted infrastructure law to ‘correct this disparity.’ In Milwaukee, $2 million will help the city address stormwater management and reduce flood risk in historically underserved communities, while $250 million will help reduce nutrient runoff into the San Francisco Bay and improve climate resilience, he added. And in Baltimore, EPA said the WIFIA money — $396 million — will help the city replace water mains ahead of schedule while saving about $100 million and creating about 2,700 jobs.” [Politico, 1/19/22 (=)]

 

U.S. Allocates $14 Bln To Expand Ports, Shore Up Waterways. According to Reuters, “The Biden administration on Wednesday said it will fund $14 billion in projects to improve the country’s ports and waterways in an effort to increase climate resilience, improve drinking water sources and bolster the U.S. supply chain. The funds, for fiscal year 2022, target more than 500 projects in 52 states and territories, including Florida’s Everglades and the Port of Long Beach in California, the White House said in a statement. ‘These key projects will strengthen the nation’s supply chain, provide significant new economic opportunities nationwide, and bolster our defenses against climate change,’ it said. The allocation stems from President Joe Biden’s infrastructure plan, passed into law last year with bipartisan support from Congress and one of the Democrat’s key domestic agenda items. Among the projects spearheaded by the U.S. Army Corps of Engineers is $1.1 billion to preserve the Everglades in south Florida, which provides drinking water for more than 8 million people in the state, the administration said.” [Reuters, 1/19/22 (=)]

 

White House Tees Up Historic $1B Everglades Funding. According to Politico, “The Biden administration today announced it will spend an unprecedented $1 billion from a recently passed infrastructure package to restore and protect South Florida’s sprawling Everglades. The move is part of the White House’s larger effort to elevate the Army Corps of Engineers’ work to ease supply chain constraints, upgrade the nation’s ports and waterways, and combat storm destruction and flooding as climate change accelerates, all while addressing environmental justice and helping coastal communities. … Much of that money will advance a large number of projects the Army Corps is overseeing meant to recreate the natural, languid flow of water from the Kissimmee River in central Florida to Lake Okeechobee and then south through the marshy prairie to Everglades National Park and Florida Bay. Before the ditching and draining of the marshes for agriculture and development early in the 20th century, water flowed naturally through the entire ecosystem. Environmental advocates who have pushed for more funding and aggressive construction timelines to restore the Everglades applauded the White House announcement. The infusion of cash will serve as an ‘unprecedented catalyst for progress’ in sending water south, restoring wetlands and estuaries around Lake Okeechobee and cleansing water to thwart algal blooms and protect drinking water, said Julie Hill-Gabriel, vice president for water conservation at the National Audubon Society.” [Politico, 1/19/22 (=)]

 

Democrats, Environmentalists Celebrate $1.1B Announced For Everglades Restoration. According to Politico, “Environmentalists and Democratic members of Florida’s congressional delegation on Wednesday praised the federal government’s announcement that $1.1 billion in infrastructure funding will go toward Everglades restoration. The details: The U.S. Army Corps of Engineers announced the $1.1 billion Wednesday as part of the projects and studies that overall would receive $22.8 billion from two recent federal aid packages pushed by President Joe Biden. ‘This is historic, tremendous funding — the largest amount of funding from either the state or the government in history,’ Rep. Debbie Wasserman Schultz (D-Fla.) said during a Zoom call with reporters, environmentalists and Democratic representatives. Environmentalists said the funding will jump-start a number of key restoration projects. ‘Everyone who cares about that Everglades should be celebrating today!’ Cara Capp of the National Parks Conservation Association told POLITICO in a text message. ‘This investment will change the fate of the Everglades forever, for the better.’ Democrats also targeted Sen. Marco Rubio (R-Fla.) and Republican Reps. Carlos Giménez and María Salazar for not supporting the legislation that provided the funding.” [Politico, 1/20/22 (=)]

 

Court: FERC Failed To Weigh 'Powerful' Evidence Of Dam Flooding. According to Politico, “The Federal Energy Regulatory Commission must take another look at an Oklahoma city’s claims that a hydroelectric dam overseen by the agency has caused repeated flooding for upstream communities, a federal appeals court ruled this week. In a unanimous decision, the U.S. Court of Appeals for the District of Columbia Circuit ordered FERC to reevaluate evidence presented by the city of Miami, Okla., alleging that the city has been flooded dozens of times over the past 2 ½ decades because of the nearby Pensacola Hydroelectric Project. FERC must also consider whether and how to hold responsible the owner of the dam, the state-run Grand River Dam Authority, if it has caused the flooding, according to the ruling. The Grand River Dam Authority (GRDA) has denied culpability for the flooding and asserted that the question should be handled by the Army Corps of Engineers, rather than FERC. The ruling comes one month after the commission finalized new dam safety regulations and as dozens of hydroelectric projects around the country are due for FERC relicensing, according to an agency database. The commission is still reviewing issues raised by the court in the Oklahoma case, a FERC spokesperson said yesterday. Richard Glick, then a commissioner and now FERC chair, dissented in 2020 on the commission’s original order, which rejected complaints raised by the city of Miami alleging that the dam owner needed to acquire easements for flooded properties.” [Politico, 1/20/22 (=)]

 

Western Water

 

AP | In Wealthy LA Enclave, Harsher Penalties For Wasting Water. According to Politico, “In a wealthy enclave along the Santa Monica Mountains that is a haven for celebrities, residents are now facing more aggressive consequences for wasting water. The Las Virgenes Municipal Water District northwest of Los Angeles hopes to spur water savings by making it easier to fine households that go over their allotted ‘water budgets’ and threatening to vastly limit water flow to customers who repeatedly fail to conserve. The district offers a bold example of how local authorities across drought-stricken California are trying to get people to use less water, voluntarily if possible but with the threat of punishment if they don’t comply. Las Virgenes officials hope their approach will be a wake-up call for residents of the affluent neighborhoods, where most of the water goes toward outdoor use like landscaping and pools. ‘What we’re trying to do is conserve water now so that we can stretch the limited supplies we have available,’ said Dave Pedersen, the district’s general manager. California is feeling the effects of climate change; it has had drought conditions for most of the last decade and during that period endured its most destructive and deadly wildfires. After two exceptionally dry years that left the state’s reservoirs at or near record lows, a string of recent winter storms improved conditions. But most of the state is still in severe drought.” [Politico, 1/19/22 (=)]

 

Utah Water Project Receives $50M Boost. According to Politico, “The Interior Department will dedicate $38.2 million to speeding the construction of two water pipelines serving central Utah, as it doles out funds from last year’s bipartisan infrastructure package. Lawmakers allocated $50 million to the Central Utah Project in the Infrastructure Investment and Jobs Act, including $40 million assigned to construction of two pipelines and a valve system. Interior oversees the Beehive’s State’s largest water development project — first authorized in 1956 — which moves water from the Colorado River basin in eastern Utah to the state’s population center. In addition to providing drinking water, the project includes water for irrigation, conservation, recreation and hydroelectric power. ‘I’m very pleased that we are able to expeditiously provide this additional funding to accelerate the construction of the Central Utah Project water delivery system, and complete additional restoration projects that will benefit threatened species and provide access to nature and recreation opportunities for Utah communities,’ Interior’s Assistant Secretary for Water and Science Tanya Trujillo said in a statement. In addition to funds for the two pipelines, which will serve 100,000 individuals near Provo, Utah, Interior assigned $300,000 for fish and wildlife mitigation projects.” [Politico, 1/19/22 (=)]

 

Flooding

 

Climate Change Hits Home For Latinos. According to Axios, “The big picture: Climate change and pollution have outsized impacts on communities of color in the U.S. Unsafe water is more common and studies show people of color are more vulnerable to wildfires and environmental disasters fueled by climate change. A new Harvard study found majority Hispanic, Black and Asian neighborhoods across the country are consistently exposed to higher levels of pollution particles. Driving the news: GreenLatinos is the host of this week’s summit, which includes Secretary of Interior Deb Haaland, Sen. Ben Ray Luján (D-N.M.), U.S. Rep. Veronica Escobar (D-Texas) and Transportation Secretary Pete Buttigieg as speakers. By the numbers: 81% of Latinos in the U.S. consider addressing climate a priority, compared to 67% of non-Hispanics, per a Pew Research Center poll. Environmental groups like Climate Power are making greater efforts to engage Latinos. Between the lines: The climate crisis is hitting Latinos’ wallets as well. They are overrepresented as workers in industries impacted by extreme weather, like agriculture and construction, according to an EPA study.” [Axios, 1/19/22 (=)]

 

Latinos Support Land Conservation Goal For The Bay Watershed. According to Bay Journal, “During the past decade, the Latino segment of Maryland’s population grew from 8% to 12%, according to the U.S. Census Bureau. Latino or Spanish-speaking people are enthusiastic visitors to Maryland state parks, and at some sites they comprise a significant proportion or majority of park users. That makes Latinos a valuable and increasingly important constituency for parks and environmental issues. This growing and dynamic community shares values across party lines and supports protecting our sources of clean air and water, a stable climate and outdoor recreation. A poll taken last summer highlighted the importance of conservation issues among Latino voters in the Chesapeake region. The poll, conducted by David Binder Research and commissioned by the Hispanic Access Foundation and Chesapeake Conservancy, surveyed 750 registered voters in Maryland, Virginia, Delaware and Washington, DC, on environmental issues facing the area, including attitudes and policy preferences regarding climate change, the health of the Chesapeake Bay, access to parks and more. The poll showed that, among the Latino voters who participated in the survey, 75% are concerned about climate change, 76% are concerned about climate impacts on the ocean and bays, 71% are concerned with water pollution and 70% are concerned about extreme heat. Further, nearly eight in 10 of all respondents, including Latinos, considered the health of the Chesapeake Bay important to them on a personal level.” [Bay Journal, 1/19/22 (+)]

 

Misc. Waterways

 

People Haven't Just Made The Planet Hotter. We've Changed The Way It Rains. According to USA Today, “You probably noticed a lot of weird weather in 2021. From record-breaking deluges and tropical storms to drought-stricken landscapes that erupted in wildfire, the nation seemed to lurch from one weather-related disaster to the next. You’re forgiven if you dismiss these events as unrelated, albeit unfortunate, phenomena. But they actually share a common bond – they’re all part of a new climate reality where supersized rainfalls and lengthening droughts have become the norm. Blame global warming. Rising temperatures don’t just make the planet hotter. They’ve also knocked longstanding precipitation patterns off balance by altering how much water cycles between earth and sky. Yes, there have always been erratic weather patterns, but now the heaviest downpours and droughts are growing more extreme, USA TODAY revealed in its recent yearlong project, Downpour.” [USA Today, 1/20/22 (=)]

 

Great Lakes Researchers Predict Record-Low Ice Coverage. According to Great Lakes Now, “The Great Lakes’ annual winter freeze is ‘off to a slow start,’ with ice coverage ‘well below average for this time of year,’ said James Kessler, a scientist at the National Oceanic and Atmospheric Administration’s Great Lakes Environmental Research Laboratory. The laboratory’s most recent projection showed that only 12.3% of the lakes’ surfaces are likely to freeze before spring. Although annual maximum ice coverage is highly variable from year to year, this year’s forecast predicts unusually scant amounts of ice. It’s ‘typical to have ice cover as high as 75% or as low as 25% percent for that annual maximum value,’ said Kessler. NOAA’s data since 1973 show a long-term average of a 50% frozen lake surface area during the annual maximum ice cover. Lake Michigan and Lake Huron are both likely to see less ice than ever at peak freeze in 2022. ‘Michigan and Huron were both projected to be lower than they’ve been as far as the maximum ice cover for the year, about 10 and 12%, respectively, where the lowest on record was about 13 and 23%, respectively.’ Unusually low ice coverage affects Great Lakes ecosystems and regional weather. In the lakes themselves, Kessler said, ‘certain microorganisms and fish species, actually they require ice cover for their spawning cycles, so when there’s not ice, these species are hurting.’ On land, the region might see more lake-effect snow in a low ice coverage year.” [Great Lakes Now, 1/19/22 (=)]

 

Op-Ed: Bills Would Help Consultants Make A Killing Off Of Killing Off Florida’s Seagrass. According to an op-ed by Craig Pittman in Florida Phoenix, “In Florida, there’s a feel-good lie that keeps popping up like a crop of mushrooms sprouting after a hard rain. It’s the claim that mitigation makes environmental destruction all right. For instance, say you wiped out a 5-acre wetland to build that Walmart with the special toy. It’s OK with the permitting agencies, so long as you make up for the damage. You get your permit if you pay someone to create new wetlands to replace the ones you paved over. Voila! Mitigation makes everything hunky dory. Except for one problem: Repeated scientific studies dating to the ‘80s have found that wetland mitigation frequently does not work. Sorry if I just shattered your illusion that a fat guy in a red suit squeezes himself down your chimney every year. Scientific facts are merciless myth-busters. Attempts to create manmade wetlands tend to create open ponds instead. While ponds do give our hungry gators a good place to live, they do not provide the benefits you get from natural marshes, bogs, and swamps. Those include flood protection, groundwater recharge, and habitat for a variety of birds and other wildlife. But mitigation looks good on paper, especially when a well-paid consultant has dressed it up in some trickeration language about ‘enhancing’ and ‘preserving’ what they’ve done. This allows the permitting agencies to approve a developer’s permit.” [Florida Phoenix, 1/20/22 (+)]

 

Op-Ed: Florida Should Tap State And Federal Funds To Help Everglades, Climate. According to an op-ed by Maggy Hurchalla in The Palm Beach Post, “The recent Everglades Coalition Conference provided a wealth of information about what’s happening in South Florida. The sea level is going to rise faster – in Florida more than most places. The weather is going to continue to change. There will be more extremes – more floods, more droughts. That makes it harder to manage water. There will be less total rainfall and it will evaporate faster because it is getting warmer. We’ve already overcommitted what we have and there will be less water to use. Planned storage reservoirs were designed before we recognized the changes in weather patterns. We are going to have too much saltwater and not enough fresh water. Florida will be ground zero for what’s happening. The saltwater is drowning the mangrove coastline. The lack of freshwater counter-flows coming down the River of Grass is killing seagrass in Florida Bay and destroying sawgrass peat at the southern end of the Everglades.” [The Palm Beach Post, 1/20/22 (+)]

 

Op-Ed: The True Cost Of Salt On Our Region’s Roads. According to an op-ed by Karl Van Neste in The Washington Post, “But the true cost is much greater than the salt itself; it is a hidden cost. Salt corrodes our bridges, our pipes and our roads. It corrodes our car mufflers and wheel wells. Corroded pipes led to the problems with lead in the water in Flint, Mich. The cost also is hidden in our region’s waterways — and in our health. The salt on our roadways runs off, killing vegetation and wildlife. Once the salt runs off into our streams, it becomes the water we drink. We end up drinking salty water, which is bad for people with high blood pressure or kidney disease. The Washington Suburban Sanitary Commission (WSSC) does not remove salt from our water, as it is much too expensive for the public to afford. The Muddy Branch Alliance and the Izaak Walton League in Gaithersburg have been monitoring the Muddy Branch, a stream tributary of the Potomac River, for several years. We noticed that for more than a quarter of 2021, chloride levels in the stream were poor: exceeding 250 milligrams per liter; normal levels are between 20 to 40 mg/l). The same was true in other tributaries of the Potomac, which are other sources of our drinking water. The average chloride level at some locations along this one stream exceeded 200 mg/l in 2021. In 2020, it exceeded 100 mg/l. Why the difference? Mostly, because there was just one ice event in the area in 2020. At the WSSC intake at the Potomac, chloride levels are up 230 percent over the last 30 years.” [The Washington Post, 1/19/22 (+)]

 

 

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