Clean Water Act

 

NWPR & WOTUS

 

This Supreme Court Case Could Destroy Water Protections. According to Gizmodo, “This isn’t just a simple David vs. Goliath story, though. The donors that have given to PLF include the Koch Network and the ExxonMobil Foundation; PLF Is also a member of the State Policy Network, a conservative network of right-wing organizations that works with the American Legislative Exchange Council. (The latter has spent years writing copy-and-paste legislation for conservative lawmakers, including punitive anti-pipeline protest laws and ones that penalize banks for not funding fossil fuels.) The network is behind several anti-environment initiatives in recent years, including efforts to hamper the Clean Power Plan, and one of its members is currently embroiled in a bitter fight over offshore wind. … The 2006 case, Owen said, was ‘immensely frustrating to developers, the mining industry, people who build long pipelines—they thought they were going to get a big win, and they don’t feel like they got what they wanted. They’ve been angling for a chance to get the Kennedy standard off the books, or to get it interpreted much more narrowly. [The Sackett case] is their chance.’ And thanks to the incredibly conservative makeup of the Supreme Court, industry victory looks very likely. Owen said that one outcome could be that the court definitively rules that the more conservative Scalia standard defines what waters should be protected. ‘That’s a massive reduction in the scope of water quality protection,’ he said. ‘It would probably be the most significant reduction in the scope of environmental protection since 1970, when environmental laws started to be made.’ Incredibly, that’s not even the worst case scenario; the court could decide to issue an even more conservative definition of what waters are protected.” [Gizmodo, 1/26/22 (=)]

 

Breyer Retirement Paves Way For Biden Supreme Court Pick. According to Politico, “During oral argument in a landmark Clean Water Act case, Breyer crafted a new standard for determining whether pollution that travels through groundwater on its way to jurisdictional waters should be subject to federal permitting requirements. Breyer said the key question is whether the release is ‘the functional equivalent of a direct discharge from the point source into navigable waters’ (Greenwire, April 23, 2020). Breyer’s opinion in County of Maui v. Hawaii Wildlife Fund sought a middle ground in arguments between environmental interests, regulated entities and the Trump administration’s EPA.” [Politico, 1/26/22 (=)]

 

TMDL

 

Q&A: Former EPA Chief Andrew Wheeler. According to Politico, “Virginia and Maryland have long complained that upstream Pennsylvania is not doing enough to curb agricultural runoff. What are your plans for interstate work to clean up Chesapeake Bay? We need to work with our partners in the other states. I tried to do that. ‘I was frustrated when — I believe it was done for political reasons — when attorney generals in Virginia and Maryland sued the EPA over Pennsylvania and New York saying they were not meeting their WIP (Chesapeake Bay Watershed Implementation Plan) obligations. Well, neither was Maryland or Virginia for that matter. The waste of money and resources spent on those lawsuits could instead have been spent on programs to clean the Bay up. I directed a lot of grant money [at EPA] to farmers in Pennsylvania to help the situation. We took a look at a pilot program on nutrient trading and other ways at changing practices and working with them cooperatively instead of with a hammer to try and effect change with the farmers there. Some of those programs I’d like to see adopted here in Virginia because Virginia farmers will have to do more to protect the Bay.’” [Politico, 1/26/22 (=)]

 

Youngkin Pick Wheeler Defends EPA Record, Criticizes Media. According to Associated Press, “Former U.S. Environmental Protection Agency administrator Andrew Wheeler defended his record Tuesday as he made an initial public appearance before Virginia legislators, who will eventually vote on whether to confirm his appointment to Republican Gov. Glenn Youngkin’s Cabinet. Wheeler, a former coal lobbyist and U.S. Senate staffer who led the EPA during the latter years of the Trump administration, told a state Senate committee he had not applied for the job of Virginia secretary of natural and historic resources. Rather, he said, Youngkin offered it to him after he took part in a team advising Youngkin’s transition and briefed him on challenges facing the Chesapeake Bay. … He told members that if he continued in the role he would prioritize Chesapeake Bay cleanup efforts, bring ‘more certainty and transparency’ to permitting and implement a coastal resiliency plan to help the state plan for and combat rising sea levels. ‘I have a long career in trying to bridge differences on these issues and protect the resources we all share,’ he said. Asked specifically whether he believed in climate change, Wheeler responded affirmatively and said the EPA didn’t have much leeway to work on the issue during his tenure because of a lack of action from Congress.” [Associated Press, 1/27/22 (=)]

 

Water Pollution

 

PFAS

 

Judge Rules DNR Can Test For PFAS, But It Can't Take Legal Action Without Standards. According to Wisconsin Public Radio, “The Wisconsin Department of Natural Resources can test wastewater for so-called forever chemicals known as PFAS, but a Jefferson County judge ruled Monday that the agency can’t pursue enforcement until water quality standards are in place. Jefferson County Judge William Hue issued the 45-page written decision that sided in part with Wisconsin Manufacturers and Commerce. The state’s largest business lobby sued the Wisconsin DNR in March last year, claiming the agency unlawfully sought to sample wastewater released from industrial and municipal facilities. The business group argued the agency lacked explicit authority to conduct testing at facilities that operate under wastewater discharge permits. Hue ruled that the DNR does have authority to enter permitted facilities and test them for PFAS under Wisconsin law and the Clean Water Act. ‘(I)n the absence of state law authorization, the DNR may not enforce, through Wisconsin Courts, nonexistent Wisconsin state standards related to toxic substances unless and until identified and quantified through rulemaking as required by Wisconsin law,’ Hue wrote in his decision. A DNR spokesperson said the agency’s legal team is reviewing the ruling and declined to comment at this time. Representatives with WMC did not immediately respond to a request for comment.” [Wisconsin Public Radio, 1/26/22 (=)]

 

The Natural Resources Board Has Adopted More Limited PFAS Rules In Response To Republican Objections. According to Milwaukee Journal Sentinel, “The state Natural Resources Board adopted rules Wednesday meant to limit the spread of PFAS after Republicans in the state Legislature prevented a more robust policy on the substances known as ‘forever chemicals.’ The rules are meant to clarify and set standards for a law passed in 2019 that prohibits companies that manufacture PFAS-containing firefighting foam from testing the substances without proper containment and treatment. The Board approved in October 2020 an emergency version of the rules that included provisions opposed by industry lobbyists. The emergency version would have set ‘action levels’ for the Department of Natural Resources to use to determine if treatments are effective in removing PFAS. Republicans on the Legislature’s Joint Committee for Review of Administrative Rules quickly blocked parts of that version of the rules. As part of its work, the committee struck out the term ‘foam-contaminated materials’ in reference to anything used in the process of PFAS cleanup that could have become contaminated with the chemicals. Another provision the committee removed would have required all discharges of PFAS foam into the environment to be reported to the DNR’s spill emergency hotline.” [Milwaukee Journal Sentinel, 1/26/22 (=)]

 

Formidable Legal Bar Shields Military From PFAS Lawsuits. According to The Hill, “Military installations are a major source of community contamination from a class of toxic chemicals called PFAS, but trying to hold the Defense Department accountable can be formidable due to a labyrinth of legal limitations. Mark Favors, an activist and nurse originally from Colorado Springs, has seen many family members, including his grandmother, die from cancer — which he believes resulted from the discharge of PFAS, per-and polyfluoroalkyl substances, from the nearby Peterson Air Force Base. These so-called ‘forever chemicals,’ dubbed such due to their propensity to linger in the environment, are present in a variety of household products but are most well-known for their presence in aqueous film forming foam (AFFF), used to fight jet fuel fires on military bases and civilian airports. PFAS are linked to kidney cancer, thyroid disease and other illnesses. While there are thousands of PFAS varieties, the two most researched types are called PFOS and PFOA. Some of Favors’s living relatives have signed on to multidistrict litigation (MDL) taking place against the companies that produced these chemicals. But Favors said that the legal hurdles associated with challenging the military in court, as well as the minimal changes that doing so could effect, have deterred him from trying to sue the Department of Defense (DOD).” [The Hill, 1/26/22 (=)]

 

Toxic Algae

 

Experts Expect Climate Change To Affect Blue-Green Algae, But Good Or Bad? According to Florida Times News, “We are not currently dealing with red tides in southwestern Florida, but it is possible that someday we will have another red tide. Some experts expect climate change to affect future flowering, but the question is whether climate change will make it better or worse. Terry Gibson of the American Water Security Project believes that Florida citizens know about climate change. ‘I don’t think any population is aware that per capita climate change is a reality across the country and that it suffers more than the people of Florida.’ We are aware of harmful blue-green algae such as red tide. State consensus document Harmful algal bloom / red tide task force We acknowledge that climate change can promote flowering through warmer water temperatures, changes in salinity, or changes in rainfall. Dr. Mike Parsons, Florida Gulf Coast University Water School, explains: I don’t know if it will be better or worse, or if it really can be said. And that’s the real problem. And there is ongoing research. ‘ When it comes to climate change, Parsons said scientists must see what happens to warming water, ocean acidification, and other environments.” [Florida Times News, 1/26/22 (+)]

 

Water Infrastructure

 

Quarter Of Flint Kids Have Elevated Lead Levels In Blood, Cornell Study Finds. According to The Detroit News, “A quarter of the children tested for lead in Flint had elevated levels in their bloodstream which then prompted a litany of health and behavioral challenges, according to a study by Cornell University researchers released Wednesday. The study, which showed that one in four received a clinician’s diagnosis of elevated blood lead levels that it said was far above the average nationally and in Flint prior to the lead crisis, also noted that more children should have been screened for blood lead levels. At least 244 children between the ages 4 and 8 were a part of the research. From June through November 2019, researchers said they collected and analyzed cross-sectional data on Flint children, self-reports of screenings of blood lead levels, and results and various potential water contamination-related health symptoms and outcomes. The symptoms reported by the Flint families can’t definitively be linked to the city’s tap water, but ‘many are scientifically associated with bacterial and chemical contamination in water,’ said Jerel Ezell, an assistant professor of Africana studies at Cornell and a lead author of the study.” [The Detroit News, 1/26/22 (=)]

 

Western Water

 

Utah Ski Resorts See Declining Snow Quality And Shorter Seasons. According to Yale Climate Connections, “Many skiers enjoy Utah’s light, fluffy snow. The state claims to have the greatest snow on Earth. ‘Skiers tend to like plowing through this waist-deep or knee-deep powder because it’s soft. It’s easy to fall in,’ says Jordan Smith, director of the Institute of Outdoor Recreation and Tourism at Utah State University. He says as the climate changes, Utah’s snow is changing, too, in quantity and quality. His team reviewed about 40 years of temperature data. They found that many Utah resorts are warming even faster than global averages. And daily low temperatures are rising faster than daily highs during the ski season, so it’s just not getting as cold. When temperatures warm, the atmosphere holds more moisture. ‘And as a result, you get more moisture in the snow,’ Smith says. That makes the snow wetter and denser. And as the climate warms, there’s less of it. ‘We used to have pretty consistent snowfall in the middle of November, and now it’s kind of pushing back towards Thanksgiving,’ he says.” [Yale Climate Connections, 1/26/22 (=)]

 

Conservationists Offer 'Free Market' Great Salt Lake Drought Plan. According to Politico, “A new proposal in the Utah Legislature aims to boost the Great Salt Lake’s water levels during an ongoing drought that last summer caused the body to dip to its lowest recorded level. Conservation advocates yesterday unveiled the legislation sponsored by state Rep. Douglas Sagers (R), touting the measure as a ‘free market’ solution to drought impacts on the largest inland lake in the West. ‘The Great Salt Lake’s future is contingent upon the leadership that we as Utahans offer the rest of America in saving this incredible resource,’ said Utah Rivers Council Executive Director Zachary Frankel, whose group formulated the proposal with Sagers. The bill would establish four tiers of action based on the 10-year water average for the lake, currently marked at an elevation of 4,194 feet. As water levels decrease, fees and restrictions on water use increase. Those fees are then funneled back to the Division of Forestry, Fire and State Lands to purchase or lease additional water rights. ‘Instead of cutting water use, we are utilizing the free market to keep water levels at the Great Salt Lake higher,’ Frankel explained. According to the U.S. Geological Survey, the Great Salt Lake dropped to a 4,191-foot elevation in August 2021, beating the 1963 record low by about an inch.” [Politico, 1/26/22 (=)]

 

Flooding

 

Developers And Insurers Await Fallout From National Flood Insurance Program Changes. According to Commercial Observer, “In the security camera footage capturing the moments when the Champlain Towers condominium collapsed in Surfside, Fla., the 12-story structure dissolves in seconds — taking 98 lives with it. As rescuers dug through the debris of the Champlain Towers South building, it became clear that extensive corrosion to the building’s foundation was a factor in the tragedy. While saltwater erosion and flooding is nothing new for Florida residents, flooding poses a huge danger to people and property in the U.S. — something the Federal Emergency Management Agency (FEMA) hopes to better protect against through changes to the National Flood Insurance Program (NFIP). ‘What we saw happening in Surfside regrettably is just the start,’ said Daniel Gielchinsky, a real estate attorney at DGIM Law and the vice mayor of Surfside from 2018 to 2020. ‘The effect of not being mindful of real impacts of sea level rise could be tragic.’ Congress established the NFIP in 1968 to reduce flood damage, manage flood plains and provide affordable, federally backed flood insurance on areas private insurers wouldn’t touch — or would for an all-too-high price. The insurance covers property in the 22,500 communities that participate in the program, and the NFIP has more than 5 million flood insurance policies, protecting against $1.3 trillion in potential flood damages, according to FEMA.” [Commercial Observer, 1/26/22 (=)]

 

Misc. Waterways

 

Biden Admin Cancels Mining Leases Near Boundary Waters. According to Politico, “The Biden administration today canceled two leases for a highly contested copper-nickel mine in northern Minnesota that were reinstated under former President Trump. The Interior Department’s actions nix the two mineral leases held by Twin Metals Minnesota LLC, a subsidiary of Chilean mining company Antofagasta PLC. Twin Metals’ project would mine copper, nickel and other commodities near the Boundary Waters Canoe Area Wilderness, a popular spot for recreation and tourism near the Canadian border. Interior had refused to renew the decades-old leases in 2016 and proposed a ban on mining near Boundary Waters, citing the risk that copper sulfide mining could pose to the surrounding ecosystem. This decision was overturned by the Trump administration, with then-acting Interior Solicitor Daniel Jorjani issuing a legal opinion declaring the leases valid. The department then granted a 10-year extension on the leases. Trump’s move on the Twin Metals leases has now been undone through a memo from the Interior solicitor’s office rescinding the Jorjani opinion. ‘I am withdrawing the Jorjani M-Opinion,’ stated the memo from Interior Principal Deputy Solicitor Ann Marie Bledsoe Downes, ‘which is flawed and spurred the improper renewal decisions.’” [Politico, 1/26/22 (=)]

 

 

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