Clean Water Act

 

NWPR & WOTUS

 

Supreme Court Takes EPA Case That Could Narrow Clean Water Act. According to The Washington Post, “The Supreme Court will take up a challenge to the Clean Water Act that could narrow the law’s reach in ways long sought by businesses and home builders. The justices said Monday that they will consider, probably in the term beginning in October, a long-running dispute involving an Idaho couple who already won once at the Supreme Court in an effort to build a home near Priest Lake. The Environmental Protection Agency says there are wetlands on the couple’s roughly half-acre lot, which brings it under the jurisdiction of the Clean Water Act, and thus requires a permit. The case raises the question of the test that courts should use to determine what constitutes ‘waters of the United States,’ which the Clean Water Act was passed to protect in 1972. In a 2006 case called Rapanos v. U.S., the court could not muster a majority opinion. Four justices, led by Justice Antonin Scalia, said the provision means water on the property in question must have a connection to a river, lake or other waterway. But a fifth justice, Anthony M. Kennedy, created the test that emerged from the case, saying the act covers wetlands with a ‘significant nexus’ to those other bodies of water. ‘Neither the lower courts, nor the agencies, nor the regulated public can agree on what the rule of Rapanos is, much less agree on how to apply any such rule efficiently and consistently,’ said a brief from the Pacific Legal Foundation, which represents the property owners, Chantell and Mike Sackett.” [The Washington Post, 1/24/22 (=)]

 

Supreme Court Takes WOTUS Case. According to Politico, “The Supreme Court today agreed to consider limiting the scope of federal water law. In a short order this morning, the justices said they would take up Chantell and Michael Sackett’s challenge to a lower court ruling that had applied a definition of ‘waters of the U.S.’ or WOTUS, established in the 2006 case Rapanos v. United States, to determine that the couple needed a Clean Water Act permit to build on their land. … Federal courts have favored former Justice Anthony Kennedy’s ‘significant nexus’ test, which takes a broader view of Clean Water Act jurisdiction and served as the basis for the Obama administration’s Clean Water Rule in 2015. The Sacketts, represented by the property rights-focused Pacific Legal Foundation, say former Justice Antonin Scalia’s narrower definition — which requires a continuous surface water connection to regulated waters — should instead be adopted. Scalia’s test underpinned the Trump administration’s Navigable Waters Protection Rule, which gutted the Obama-era WOTUS regulation. A federal court has since struck down the Trump rule. The Biden administration is planning to issue a new regulation. Justice Department attorneys had asked the Supreme Court to stay out of the dispute until Biden’s EPA and Army Corps of Engineers have had a chance to release the new rule (Greenwire, Nov. 29, 2021).” [Politico, 1/24/22 (=)]

 

Supreme Court Takes Up Water Jurisdiction Appeal. According to Politico, “In the 2001 case Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, the high court agreed with challengers and restricted the government’s authority over wetlands that are far from the larger tributary network. But in the 2006 case, Rapanos v. United States, the court issued a famously muddied opinion on the exact reach of the water law, with the four conservative justices endorsing a narrow definition, the four liberal justices backing the government’s broad interpretation, and Kennedy writing his own, stand-alone opinion that sought to cut a middle path. Kennedy argued that a stream or wetlandmust have a ‘significant nexus’ to the health of downstream waterways — a vague concept that led to mass confusion and inconsistent decisions on the ground. … Now, the Biden administration has embarked on its ownrepeal-and-replace process, with EPA Administrator Michael Regan saying he seeks to craft a more ‘durable’ definition that would offer greater protections than the Trump rule without the issues that the Obama rule raised. But that EPA process is expected to take up much of Biden’s first term as president, and stands now to be significantly hemmed in by justices’ ruling on the issue, which could be made by June.” [Politico, 1/24/22 (=)]

 

Supreme Court Tees Up Wetlands Fight That Could Cuff EPA. According to Politico, “EPA in a statement said that it cannot comment on pending litigation, but the agency remains committed to establishing a ‘durable’ definition of WOTUS that’s informed by a ‘diverse perspectives and protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.’ It is the second major environmental rule that the Biden administration will write in tandem with Supreme Court review. … ‘You’ve got five, if not six, justices now who are willing to say that the Scalia test is the proper test,’ said former EPA Office of Water attorney Mark Ryan.’I think there’s a very high likelihood that’s what the Supreme Court will do here, they’ll just reopen Rapanos and say, ‘How do you determine ‘waters of the United States’?’ They almost certainly have five votes to say it’s Scalia’s [relatively permanent waterway] test, which is extremely restrictive and also somewhat internally inconsistent.’ Ashley Peck, a Holland & Hart partner who represents regulated entities, said the court appears to have attempted to limit itself by reviewing only the 9th Circuit’s ruling — rather than the Sacketts’ request for a Rapanos rematch. ‘But by wading in here,’ she said, ‘they’d necessarily be interpreting prior precedent under Rapanos. That has pretty wide-reaching implications.’” [Politico, 1/24/22 (=)]

 

High Court Again Wades Into Debate Over Water Act’s WOTUS Definition. According to InsideEPA, “At issue in the instant case is a 2021 ruling from a three-judge panel of the 9th Circuit, which rejected the Sacketts’ arguments that a 2007 9th Circuit ruling in Northern California River Watch v. City of Healdsburg is no longer good law. Healdsburg held that Kennedy’s ‘significant nexus’ test is the controlling rule of law on CWA jurisdiction. ‘[T]he Sacketts’ arguments fail, and Healdsburg remains law of the circuit--meaning the Kennedy concurrence is still the controlling opinion from Rapanos,’ Judge Michelle Friedland wrote in the Aug. 16 ruling. The Obama administration relied heavily on the Kennedy ‘significant nexus’ approach in crafting its WOTUS definition while the Trump administration’s WOTUS rule primarily, although not exclusively, used Scalia’s approach. The Biden administration, following a federal district court’s vacatur of the Trump-era rule, has proposed an interim definition that interprets WOTUS to mean the waters defined by a collection of Corps and EPA regulations referred to as the ‘1986 regulations,’ with amendments to reflect the agencies’ interpretation of the statutory limits on the scope of WOTUS as informed by Supreme Court decisions, including Rapanos. While EPA and Corps officials have repeatedly said the proposal aims to create a ‘durable’ WOTUS definition, stakeholders are already setting out diametrically opposed views of the proposal ahead of the Feb. 7 comment period deadline.” [InsideEPA, 1/24/22 (=)]

 

U.S. Supreme Court Agrees To Consider Limiting Wetlands Regulation. According to Reuters, “The U.S. Supreme Court on Monday agreed to consider limiting the scope of a landmark federal environmental law as it took up for the second time an Idaho couple’s bid to build on property the federal government has deemed a protected wetland. The justices will hear an appeal by Chantell Sackett and her husband Mike Sackett, who own property in Priest Lake, Idaho where they hoped to build a home, of a lower court ruling favoring the government. The court will consider what test courts should use to determine what constitute ‘waters of the United States’ under the landmark 1972 Clean Water Act, the answer to which determines whether the property is subject to regulation, requiring owners to obtain permits in order to carry out construction. … The justices are expected to hear the case in their next term, which begins in October and ends in June 2023.” [Reuters, 1/24/22 (=)]

 

Supreme Court To Weigh Curbs On Clean Water Act, Pitting Property Rights Against Wetlands. According to Bloomberg, “The U.S. Supreme Court, heeding calls from business and property-rights groups, agreed to use a long-running Idaho fight to consider curbing the reach of the Clean Water Act. The justices said they will hear an appeal from Chantell and Michael Sackett, an Idaho couple waging a 15-year-old battle to build a house on land that federal regulators say is protected wetlands. The Sacketts won a 2012 Supreme Court ruling that let their lawsuit go forward. The case becomes the second major environmental clash on the court’s docket. The justices next month will consider limiting the Environmental Protection Agency’s ability to address climate change through sweeping reductions of power-plant emissions. The Supreme Court is likely to hear the case in the term that starts in October. The new case could give companies a freer hand to discharge pollutants and let developers construct more new houses without getting a federal permit. The U.S. Chamber of Commerce and the National Association of Home Builders were among the groups urging the Supreme Court to hear the case.” [Bloomberg, 1/24/22 (=)]

 

High Court Drops ‘Earthquake’ On Federal Water Protections. According to Associated Press, “The court’s conservative majority is likely to moot the EPA’s two WOTUS rulemakings now underway, Owen said. The first of the rulemakings roughly reinstates a 1986 rule widely defining WOTUS after the Trump administration lifted those and the Obama administration 2015 wetlands protections with the Navigable Waters Protection Rule, which an Arizona federal court vacated last year. The second of the rulemakings is expected to expand upon the 1986 rule, putting the Biden administration’s imprint on the definition of federal waters. A public comment period on the proposal concludes Feb. 7. Until the court rules and establishes what can be expected to be a narrow interpretation of federal jurisdiction over streams and wetlands, the EPA can be expected to continue the rulemakings, said Larry Liebesman, a senior advisor at the environmental and water permitting firm Dawson & Associates. But EPA officials involved in the rulemaking will have to ‘somehow acknowledge’ that the high court accepted the case, Liebesman said. ‘They can’t ignore it.’ Two House Republicans, including Reps. Sam Graves (R-Mo.) and David Rouzer (R-N.C.) on Monday called on the EPA to halt the rulemakings until the Supreme Court rules.” [Associated Press, 1/24/22 (=)]

 

Permits & Certifications

 

EPA Retains Controversial Turbidity Monitoring In Final Stormwater Permit. According to InsideEPA, “EPA has finalized the latest version of its general permit for stormwater at construction sites, maintaining a requirement for turbidity benchmark monitoring of certain discharges that industry groups strongly opposed, saying the threshold is not an effluent limit that would trigger a permit violation but a ‘warning sign’ for operators to improve their performance. The 2022 construction general permit (CGP), announced in the Jan. 24 Federal Register and effective Feb. 17, includes several changes from the current Clean Water Act (CWA) permit that EPA says generally fall into two categories -- changes to improve the clarity of the permit, and changes that added specificity to the permit requirement. The CGP only applies in the three states where EPA is the National Pollutant Discharge Elimination System (NPDES) permitting authority -- Massachusetts, New Hampshire and New Mexico -- along with the District of Columbia and U.S. territories. But many states with delegated permitting programs use the EPA permit as a guide.” [InsideEPA, 1/24/22 (=)]

 

Appeals Court Reverses Water Permit For PolyMet Mine. According to Politico, “The Minnesota Court of Appeals today sent the water pollution permit for the PolyMet copper-nickel sulfide mine in northern Minnesota back to the state agency for more review. Siding with environmental groups, the appeals court found that the Minnesota Pollution Control Agency had made an error on a water quality permit by not considering whether discharges from the PolyMet mine to groundwater would qualify as ‘navigable waters’ protected under the Clean Water Act. There was recent precedent for this court decision. The Supreme Court ruled in the 2020 case County of Maui v. Hawaii Wildlife Fund that discharges to groundwater can be the ‘functional equivalent’ of direct discharge to surface waters. Under today’s ruling, the mine’s water pollution permit has been remanded to the Minnesota Pollution Control Agency, which will need to scrutinize the previous permitting decision to consider the Supreme Court’s ruling. PolyMet, in a news release after the ruling, painted the court decision as a win. The company pointed out that environmentalists did not prevail on most issues they raised in the case.” [Politico, 1/24/22 (=)]

 

TMDL

 

Despite Increasing Pollution, Pennsylvanians Are Still Spending Time In Waterways, State Report Says. According to Pittsburgh Post-Gazette, “Pennsylvanians spend about as much recreation time in the state’s waterways as they did two years ago, despite an increase in agricultural toxins trickling into the rivers. In 2020, nearly 30% of the state’s waterways were considered ‘impaired.’ Now, more waterways are in some way damaged, according to a biennial water quality report released Thursday by the Pennsylvania Department of Environmental Protection. The increase hasn’t gone unnoticed. This year, more than $3.5 million will be funneled into 14 watershed restoration and protection projects in Philadelphia suburbs and throughout southeast Pennsylvania, where waterway impairment from farm runoff is most severe, a DEP statement said on Friday. The funding is to be included in the state’s Growing Greener grants. Agricultural runoff — nutrients from manure and chemical fertilizers — pollute many farmland tributaries feeding the long Pennsylvania segments of the Susquehanna and Delaware rivers, which flow into Chesapeake Bay. In an effort to restore recreational and commercial fishing values in the bay, several East Coast states including Pennsylvania are required to submit detailed reports of waterway pollution benchmarks every two years. The reports are a requirement of the Federal Clean Water Act.” [Pittsburgh Post-Gazette, 1/24/22 (+)]

 

Water Pollution

 

PFAS

 

New Batch Of 'Forever Chemicals' Draws EPA Oversight. According to Politico, “EPA has expanded its reporting requirements for certain ‘forever chemicals’ as the agency continues to target the notorious family of substances. Four PFAS will be automatically added to the Toxics Release Inventory, EPA announced today, providing more data about the ways in which those chemicals are used and released throughout manufacturing processes. The list includes a compound that led to significant controversy under the Trump administration. In a statement, chemicals chief Michal Freedhoff emphasized the importance of listing chemicals under TRI, which compels facilities to report significant data on a range of substances to EPA. ‘We will use every tool in our toolbox to protect our communities from PFAS pollution,’ said Freedhoff. ‘Requiring companies to report on how these PFAS are being managed, recycled, or released is an important part of EPA’s comprehensive plan to fill critical data gaps for these chemicals and take meaningful action to safeguard communities from PFAS.’ A major addition to the inventory is the chemical PFBS, a replacement for PFOS — one of the two most researched substances of the chemical family — which has been phased out in the United States due to health and environmental concerns.” [Politico, 1/24/22 (=)]

 

Justice For PFAS Exposure Races A Ticking Clock. According to The Hill, “Brenda Hampton says the heart attack she endured last month might be a blessing in disguise — a second chance at challenging a complex legal system that barred her from seeking compensation for years of renal failure. ‘I’m thinking God is opening the door for me. I’ve got a feeling of that,’ Hampton, the founder of Concerned Citizens of WMEL (West Morgan and East Lawrence) Water Authority, told The Hill. Through her organization, also known as Concerned Citizens of North Alabama Grassroots, Hampton has been raising awareness about the severe contamination from ‘forever chemicals’ — per-and polyfluoroalkyl substances (PFAS) — that have for decades plagued portions of Alabama’s Lawrence County, where Hampton lives. But despite suffering from renal failure herself since 2015, Hampton had long ago abandoned the idea of pursuing a lawsuit — with the understanding that from a legal perspective, it was simply too late. ‘After I knew that it was a two-year limit for Alabama and I was still here, I was saying that my options were gone because I didn’t file immediately then,’ Hampton said.” [The Hill, 1/24/22 (+)]

 

Coal Ash

 

Tennessee Was ‘Ground Zero’ For Coal Ash Pollution. Now, EPA Is Promising Cleanups.. According to WPLN-Radio, “In 2008, the Tennessee Valley Authority’s Kingston Fossil Plant dumped 5.4 million cubic yards, or 1 billion gallons, of coal ash slurry into the local environment. This was the largest U.S. industrial spill to date, and it prompted the Environmental Protection Agency to gradually form the first federal regulations on coal ash, the toxic residuals left over after coal is burned to produce electricity. These regulations, which comprise the 2015 Coal Combustion Residuals Rule, required about 500 of the nation’s unlined coal ash surface impoundments to stop receiving waste and begin closing by 2021. The Trump administration allowed utilities to request extensions, but new officials are now taking action. Last week, the EPA announced that it was going to begin enforcing these laws while working on plans for stricter regulations. ‘The coal ash rule has been on the books since 2015. But with the entry of the Trump EPA, enforcement was off the table, and there was no federal oversight of the hundreds of utilities that had to comply with the rule,’ said Lisa Evans, a senior attorney at Earthjustice who specializes in hazardous waste law. The US has produced billions of tons of coal ash, which is an umbrella term for the various forms of coal combustion waste, in the past century. This waste contains nonbiodegradable heavy metals that, when ingested or inhaled, can cause cancer, disease and death.” [WPLN-Radio, 1/24/22 (=)]

 

Wastewater

 

New EPA Rules To Target Power Plant Pollution. According to The Wall Street Journal, “The Environmental Protection Agency is preparing to advance tougher regulations on power plants in coming months as part of President Biden’s plan to cut greenhouse-gas emissions. The agency wants to impose stricter air-quality standards for mercury and other toxic pollutants, as well as new restrictions on wastewater generated by power plants, EPA Administrator Michael Regan said in an interview. Mr. Regan said the EPA is looking to roll out new proposals in a more coordinated approach to regulate the power sector, using the agency’s broad array of powers to oversee air and water pollution as well as wastewater disposal. ‘We don’t have to overly rely on any one rule,’ Mr. Regan said. ‘It’s looking at the full suite of authorities to maximize our ability to protect communities and public health.’ … The EPA also announced last summer it would revisit changes made in 2020 to Effluent Guidelines for power-plant wastewater. It plans to issue a proposal by this fall to strengthen discharge limits.” [The Wall Street Journal, 1/25/22 (=)]

 

Report: Vandalism Leads To Oil Well Spill Near Watford City. According to Associated Press, “Officials say a produced water spill at an oil well near Watford City Sunday was due to vandalism. North Dakota Oil and Gas Division officials said valves were opened on the location, leading to a spill of more than 18,000 gallons. Most of the wastewater had been recovered by vacuum trucks, officials said. Produced water is a mixture of saltwater and oil that can contain drilling chemicals. It’s a byproduct of oil and gas development. A state inspector has been to the Abraxas Petroleum Corp. site and will monitor cleanup required.” [Associated Press, 1/24/22 (=)]

 

Water Infrastructure

 

Kamala Harris Shown Boy's 'Lead Monster' Drawing During Stop Touting Infrastructure Bill. According to Newsweek, “During a Monday stop in Milwaukee focused on the funding in the infrastructure law signed last year to replace lead pipes in Wisconsin and across the country, one activist who said her son has been hospitalized twice because of lead poisoning showed Vice President Kamala Harris her son’s drawing of the ‘lead monster.’ ‘Too many moms are going through the same thing that I went through. And too many little boys and girls are going through (what my son) went through,’ activist Deanna Branch said when introducing Harris, according to The Associated Press. Harris spoke to state government officials and community leaders, as well as union workers who are beginning to replace lead pipes in Milwaukee, the AP reported. About $15 billion was approved by Congress in the infrastructure bill to replace the lead pipes across the country, which is about a third of what the White House and other experts have said it will cost to fund the full replacement of lead pipes nationwide. A total of $55 billion was dedicated to improvements of larger water infrastructure around the U.S. in the infrastructure bill.” [Newsweek, 1/24/22 (+)]

 

VP Harris And EPA Announce $140 Million In Water Infrastructure Funds For Wisconsin. According to Wisconsin Examiner, “Vice President Kamala Harris paid Wisconsin another visit Monday, this time in Milwaukee. Harris was joined by her husband, Doug Emhoff, who visited the Milwaukee Youth Arts Center while Harris focused on unveiling an infrastructure plan for the city. Harris visited the Wisconsin Regional Training Partnership/ Building Industry Group Skills Trades Employment Program (WRTP/ BIG STEP), where she spoke with workers training for lead pipe replacement funded by the bipartisan infrastructure law enacted in November. ‘You put the call out and it was heard,’ said Harris . Next Harris heard from Hero Plumbing about their work removing lead laterals. ‘It is because of the work that you all are doing…that makes us all so excited,’ said Harris. ‘We just got a law passed and part of that law is to invest billions of dollars in lead removal.’ She added that, ‘it’s going to be about investing in talented people like you.’ Harris also heard about the health impacts of lead poisoning from Dr. Heather Paradis, a pediatrician who said she continues to see children develop symptoms from lead poisoning. ‘Any amount of lead in the blood is too much,’ said Paradis. ‘Even low levels of lead in a child’s blood can have long lasting effects.’” [Wisconsin Examiner, 1/24/22 (+)]

 

AP | VP Harris To Tout Replacing Lead Lines During Milwaukee Stop. According to KOAM-TV, “Vice President Kamala Harris plans to tout the removal and replacement of lead pipes during a stop Monday in Wisconsin, where she will highlight efforts to update aging infrastructure across the country. Harris will promote the $1 trillion bipartisan infrastructure law during her Milwaukee stop where she will be joined by Environmental Protection Agency Administrator Michael Regan, U.S. Sen. Tammy Baldwin and U.S. Rep. Gwen Moore. Harris is slated to meet with community and health leaders at the Wisconsin Regional Training Partnership/BIG STEP program in west Milwaukee. She also plans to meet with union members who are working to replace lead pipes. The Biden administration announced a plan last month to replace all lead pipes over the next decade. However, Congress approved $15 billion for lead service line replacement in the infrastructure bill — about a third less than what the White House and water experts say it would cost to replace them nationally.” [KOAM-TV, 1/24/22 (=)]

 

Misc. Waterways

 

Florida Has Lost Miles Of Seagrass. A New Bill Would Make It Easier To Build Over Those Meadows. According to WLRN-Radio, “A bill that would make building over Florida’s beleaguered seagrass meadows easier is drawing opposition from conservationists and environmental regulators. If passed by Florida lawmakers, the bill would create seagrass mitigation banks on submerged public lands. The state would grant easements to private companies to grow and manage the seagrass, then sell credits to landowners building projects such as marinas or docks or dredging channels that would harm the state’s disappearing seagrass. But regulators and environmental groups who oppose the measure worry such banks are doomed to fail for the hard to grow seagrass. ‘If we could figure out how to get our seagrass to grow in our public lands, we should be doing that anyways,’ said Lee Hefty, director of Miami-Dade County’s division of Environmental Resources Management. ‘The idea that the solution exists somewhere out there under the water is, I think, a false premise.’ Fixing pollution and flood control that deprives estuaries of clean freshwater, he said, would do more good to save the shrinking coastal meadows that provide habitat for manatees, sea turtles, conchs and a host of wildlife, as well as nurseries for young fish.” [WLRN-Radio, 1/24/22 (=)]

 

 

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