Tag: clean water act
New EPA Chief Stalls On Protecting Water Supplies

New EPA Chief Stalls On Protecting Water Supplies

Andrew Wheeler, the former lobbyist now in charge of protecting our nation from dangerous chemicals, would get final say on whether the EPA should regulate a dangerous class of chemicals that are sometimes found in public drinking water.

The Safe Drinking Water Act, signed into law by former President Gerald Ford in 1974, is a set of regulations governing how to set safety standards for our nation’s drinking water. The law gives the EPA administrator “sole judgment” to decide if the health risks of a chemical mean it should be regulated under the act.

The chemicals, perfluoroalkyl and polyfluoroalkyl substances, or PFAs, have been made since the 1940s and are valued because they can repel oil and water. The chemicals, used in products such as microwave popcorn bags and firefighting foam, may have contaminated more than 1,500 drinking water systems that serve nearly 110 million Americans.

Under Wheeler, the EPA announced that it would propose a “regulatory determination” for two types of PFAS chemicals, a move environmentalists derided as just more procrastination about deciding whether to regulate the toxic chemicals.

“Has the Trump administration so thoroughly purged EPA of scientists, and so completely stacked its management with industry lobbyists, that it can’t even decide whether to lift a finger to regulate widely-known toxic chemicals?” asked Erik Olson, senior director for health and food at the Natural Resources Defense Council.

PFAS are linked to cancer, thyroid disease and lowered immunity. At least 121 U.S. military installations have groundwater contaminated with PFAS.

The National Drinking Water Advisory Council, appointed by the EPA administrator, will also help evaluate whether PFAS should be regulated.  In May, the EPA posted a notice seeking nominations for three-year seats on the council.

The council’s new members include Alexandra Campbell-Ferrari, who co-founded a nonprofit that works on water security, and James Proctor II, the vice president and general counsel of McWane. The company was prosecuted for environmental crimes and pleaded guilty to nine felony charges of knowingly violating the Clean Water Act.

Former EPA Administrator Scott Pruitt and the White House tried to block the release of a health study about PFAS chemicals last year. The report recommended that “minimum risk level” for exposure to two PFAS chemicals should be seven to 10 times lower than the level previously recommended by the EPA.

With New EPA Water Rule, Obama Again Takes Executive Action On Environment

With New EPA Water Rule, Obama Again Takes Executive Action On Environment

By William Yardley, Los Angeles Times (TNS)

In April 1989, a Michigan developer named John Rapanos dumped fill on 54 acres of wetlands he owned to make way for a shopping center. He did not have a permit, and when the state told him to stop, he refused. Courts found him in violation of the federal Clean Water Act. Prosecutors wanted to send him to prison.

Rapanos took his case all the way to the U.S. Supreme Court, which found that the wetlands on his property, about 20 miles from a river that drained into Lake Huron, did not fall under the Clean Water Act’s jurisdiction over discharges into “navigable waters.”

Rapanos became something of a celebrity among property rights advocates, but the ruling raised as many questions as it answered. Although the court upheld federal protections for wetlands and streams when they connected with navigable waters, it left unclear what constituted a connection.

Now, nearly a decade later, the Obama administration is seeking to clarify those ambiguities, and the effort is causing controversy of its own. This week, the Environmental Protection Agency is expected to release a new rule to protect a significantly larger percentage of streams and wetlands that provide habitat for wildlife and sources of drinking water.

The move is another example of President Barack Obama taking executive action on environmental and climate issues regardless of whether he has the support of Congress. The administration has already protected millions of acres from oil and gas development and is expected to set aside more, even as it has allowed the expansion of oil and gas drilling elsewhere. It plans to issue new rules this summer to reduce carbon emissions from power plants.

EPA officials say up to 60 percent of the nation’s streams and millions of acres of wetlands lack clear protection from pollution under existing regulations. The new clean water rule would for the first time clearly define which tributaries and wetlands are protected under federal law.

“There is nothing complicated about the idea that we should protect the tributary system that flows into our nation’s rivers,” said David Uhlmann, a law professor at the University of Michigan who previously led the prosecution of environmental crimes at the Justice Department. “What is more difficult is deciding when to protect wetlands, which perform essential ecological functions but often make it difficult or impossible for landowners to develop their property.”

The new rule, drafted by both the EPA and the U.S. Army Corps of Engineers, has been under attack since it was proposed in draft form last year, with lawmakers, farmers, business groups, and some local governments often coordinating the efforts.

The American Farm Bureau has led the opposition.

“The proposed rule provides none of the clarity and certainty it promises,” the bureau wrote in a letter to Congress. “Instead, it creates confusion and risk by providing the agencies with almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects.” That could include farm ditches, agricultural ponds, and isolated wetlands, it said.

The farm bureau started a social media campaign, using the Twitter hashtag #Ditchtherule. The EPA created its own, telling supporters to #Ditchthemyth. In a blog post in April, EPA Administrator Gina McCarthy said the agency may need to look at “better defining how protected waters are significant.”

“A key part of the (new) Clean Water Rule is protecting water bodies, like streams and wetlands, which have strong impacts downstream,” she wrote.

At issue is the Supreme Court’s ruling that only water bodies with a “significant nexus” to navigable waterways fall under the Clean Water Act’s regulatory authority. But what that means has left room for debate for years.

McCarthy conceded that the agency’s initial definition of tributaries was “confusing and ambiguous” and could “pick up erosion in a farmer’s field, when that’s not our aim.” The agency was also revisiting how it addressed ditches, she wrote, “limiting protection to ditches that function like tributaries and can carry pollution downstream.” She also sought to assure local governments that the agency “did not intend to change” how stormwater systems are treated.

Several bills aimed at stopping the rule from taking effect have been introduced in Congress, including one sponsored by Senators Jeff Flake and John McCain, both Republicans from Arizona. In a letter to McCarthy this month, the senators wrote that Arizona’s “vast majority of ‘waters’ are desert washes that are part of ephemeral systems and often found at substantial distances from traditional navigable or interstate waters.”

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Under the proposed rule, they said, “every small ephemeral system of limited function, remote from traditional navigable or interstate waters, and with no practical ability to influence the physical, chemical, or biological integrity of those downstream waters, would be regulated.”

Arizona is “literally crisscrossed with man-made canals that are essential for critical water delivery,” they wrote, and under the new rule, “it is possible that every mile of these canals” will now fall under the Clean Water Act.

In another arid state next door, Sanders Moore, director of Environment New Mexico, said waterways there had been put at risk under narrow interpretations of the existing rule that did not protect streams that are often dry until snowmelt or stormwater runs through them.

“When they run, they pick up all of those pollutants and take them into larger rivers,” she said.

Ken Kopocis, deputy assistant administrator for the EPA’s office of water, said the agency had heard concerns similar to those expressed by the Arizona senators, and that the final rule would clarify that washes and other ephemeral streams would not fall under regulation unless they had “bed and banks” and “ordinary high water marks” that indicated an active connection to waters that do fall under regulation.

“We understood and heard a lot from people in the Southwest that we need to be more clear, and the final rule will be more clear on this,” he said.

He also said the agency was not revising its policies on the vast network of canals and waterways that provide irrigation and drinking water in much of the arid West.

Although Rapanos won at the Supreme Court, he faced other penalties for his actions. He and other defendants in the case eventually settled with the government, agreeing to pay a $150,000 penalty. Rapanos was also required to construct 100 acres of wetlands and buffer areas to offset the 54 acres he filled.

(c)2015 Los Angeles Times. Distributed by Tribune Content Agency, LLC.

File photo: Ducks come in for a landing in the flow-regulating wetlands at the Tres Rios Ecosystem Restoration Project, construction of which was managed by the U.S. Army Corps of Engineers LA District’s Arizona/Nevada Area Office, in Phoenix’s West Valley. February 14, 2013. Via U.S. Army Corps of Architects/Flickr

As Clean Water Act Ages, Washington State Groups Spar Over Its Meaning

As Clean Water Act Ages, Washington State Groups Spar Over Its Meaning

By Chris Adams, McClatchy Washington Bureau (MCT)

WASHINGTON — The nation’s primary law to keep its waters clean has a birthday Saturday — but any celebration will have to compete with a contentious battle over what the law actually means.

At issue is a proposal intended to clarify what waterways are and aren’t covered by the Clean Water Act, which dates to 1972. But that so-called “Waters of the United States” proposed rule has turned contentious, with federal officials receiving more than 200,000 comments from citizens and organizations nationwide.

Among those are environmentalists and agricultural groups from Washington state, who represent the sharp divide nationwide on the rule.

Ask the Washington Cattlemen’s Association, and the rule is an “egregious effort to illegally empower” the federal government, allowing it to “seize control over private property without just compensation.”

Officials with the state of Washington, meanwhile, support the rule, which is still in the proposal stage as comments stream in from people around the country.

“We are welcoming of the rule,” said Stephen Bernath, a water quality program policy adviser with the Washington state Department of Ecology. The department said the proposed rule should clarify the extent of the Clean Water Act jurisdiction — exactly the intent of the rule — and that it will be helpful.

It’s not perfect, the state added, and officials expect to offer some suggestions of their own to clarify things further. But for the most part, department spokeswomen Sandy Howard said, “We do not believe the rule will change fundamentally how we do business in our state.”

The Clean Water Act passed Congress in 1972, becoming law Oct. 18, according to the U.S. Environmental Protection Agency.

At the time, according to an EPA account of the act, municipal and household wastes flowed untreated into rivers, lakes and streams; industrial chemicals were dumped into waterways, two-thirds of which were unsafe for swimming or fishing.

The act has since cleaned up many of the nation’s rivers, lakes and streams; far more are acceptable for swimming and fishing.

But the EPA said there is much work yet to be done. And one thing on its plate is the proposed water rule.

The water rule proposal seeks to clarify what is covered by the Clean Water Act — whether certain streams that dry up part of the year, for example, should be covered along with traditional rivers, streams and lakes. The rule was proposed by the EPA and the U.S. Army Corps of Engineers.

It’s a reaction, in part, to two U.S. Supreme Court cases from the 2000s that addressed EPA’s water oversight.

The proposal, which EPA expects to finalize next year, is strongly pushed by the Obama administration and environmental groups, who say it would help keep rivers, lakes and other waterways healthy. But agriculture and other industry groups just as strongly oppose the plan, saying it represents a massive overreach by the federal government that would curtail farm activity.

For Jack Field, executive vice president of the Washington Cattlemen’s Association, the rule that sought clarity instead brought confusion.

“I fear this could have far-reaching impacts that are exactly the opposite of what the EPA is intending,” said Field, who is from Yakima, Wash.

For cattle ranchers, he said, that means an intermittent stream running through grazing areas could come under the jurisdiction of the EPA and be subject to Clean Water Act permitting requirements.

“This is a heavy-handed, top-down attempt to have a one-size-fits-all solution that’s not understood by anybody in the regulated community,” he said.

His official comments to the EPA call on the agency to immediately withdraw the rule.

The Washington Farm Bureau, in its comments, said it “strongly opposes these over-reaching proposals as they can, as drafted, be read to fundamentally expand” federal authority.

“Though our primary concern is the impact on agriculture, potential problems with this rule extend far beyond agriculture,” the Washington Farm Bureau wrote in its official comments to the EPA. “Every roadside ditch on every homeowner’s property, including every simple act of landscaping, spraying or mowing, could become subject to potential Clean Water Act regulations.”

The American Farm Bureau Federation is likewise pushing hard against the rule nationally. While the Clean Water Act exempts routine farming practices from certain permits, that exemption is filled with enough exemptions and limitations of its own that farm practices are effectively hamstrung by EPA authority, the bureau says; the new rule would “make it more difficult to farm or change a farming operation to remain competitive and profitable.”

The EPA has said those fears are overblown, and has rebutted what its administrator said is “a growing list of misunderstandings” about the rule. The EPA, in its assessments, projects that the new rule would result in a 3 percent increase in jurisdiction; farm groups say that seriously undercounts waters that could become covered.

For environmentalists such as Janet Alderton, the rule is both necessary and workable.

Alderton, whose career was as a cell biologist for the University of California, Berkeley, retired to Deer Harbor, a community on the San Juan Islands in Washington state’s far northwest corner.

“It’s a beautiful, beautiful area — lots of water, and our islands are a really important nursery for young salmon,” said Alderton, who is vice president of Friends of the San Juans. “If we don’t have clean water along our shorelines then the salmon in the region would be even more impacted.”

Alderton submitted one of nearly 219,000 comments from people who have weighed in to the EPA on the rule; the agency recently extended its comments on the rule until Nov. 14, saying it needed more time to consider new scientific evidence on its proposal.

For her part, Alderton urged the federal government to finalize the rule as soon as possible.

“Follow the science that shows how water bodies are interconnected,” she wrote, “and fully protect all of the waterways that have important connections to one another. I urge you to continue to stand up to special interests that oppose these important — and popular — clean water protections.”

Photo: J. Stephen Conn via Flickr

A New Environmental Dispute Brews Between Feds And Texas Over Water

A New Environmental Dispute Brews Between Feds And Texas Over Water

By Asher Price, Austin American-Statesman

AUSTIN, Texas — Foretelling a new environmental battle between state and federal regulators, Attorney General Greg Abbott this week demanded the U.S. Environmental Protection Agency back down from a proposal to expand the definition of federal waters to include seasonal and rain-dependent waterways.

The proposal “is without adequate scientific and economic justification and, if finalized, would erode private property rights and have devastating effects on the landowners of Texas,” he wrote Monday as part of a public comment period on the proposal, threatening to sue if it’s not withdrawn.

EPA officials say the proposal would stiffen penalties for polluting such waterways. More than 11 million Texans, get drinking water from sources that depend, in part, on the intermittent streams.

“It’s important to protect the whole network of streams that flow into rivers and oceans,” said Ellen Gilinsky, a senior adviser for water at the federal agency. “This rule ensures clean waters for Texans to drink and recreate in, clean water for businesses, and clean water for farmers.”

Texas Commission on Environmental Quality spokesman Terry Clawson said the state agency is “concerned that EPA’s proposed rule expands its jurisdiction under the Clean Water Act without congressional approval.” A spokeswoman for the attorney general’s office said it had consulted with the TCEQ before filing its letter Monday. Abbott is the Republican candidate for governor.
The dispute comes just as another long-running battle with the EPA, over air pollution issues, has calmed down.

David Foster, who heads the Texas office of the advocacy group Clean Water Action, said the state environmental agency has shown little appetite for regulating the waterways. He cited permits that had been issued by the agency to subdivisions seeking to discharge treated sewage into intermittent Hill Country creeks that feed the Barton Springs portion of the Edwards Aquifer.

The waterways issue has long been a political and legal football.

Foster said the George W. Bush administration had argued that the intermittent streams didn’t qualify for protection, and in 2001 and 2006 the U.S. Supreme Court sided with polluters in water cases.

Those rulings “muddied the waters” on the definition of which waters fall under federal protection, Gilinsky said. The proposed rule, which could be finalized by next spring, would extend Clean Water Act protections to the intermittent streams and waters located near or within floodplains.

In 2000, a pipeline operated by the Chevron Pipe Line Company failed, spilling 126,000 gallons of oil into an unnamed Texas creek. The creek was dry at the time — as are a majority of U.S. creeks during portions of the year — but it fed a series of tributaries that eventually send water into the Brazos river. A federal judge found that because no water was flowing in the unnamed tributary at the time of the spill and the government had not shown that the oil had reached a traditionally navigable water, the Clean Water Act did not apply.

“We need a federal backstop,” Foster said. “I shudder to think how the political leadership in this state would regulate these waterways.”

Some Texas elected officials are already on the record against the proposal.

“The EPA’s rule is so vague that it does little more than extend an open invitation to trial lawyers and government drones,” said U.S. Rep. Lamar Smith, a Republican who represents a large swath of the Hill Country, as well as parts of Austin and San Antonio. He was speaking at a July 9 meeting of the House Committee on Science, Space, and Technology, which he chairs.

“When Congress enacted the Clean Water Act, it was about water, not land,” he continued. “But the EPA’s rewriting of the law is a terrifying expansion of federal control over the lands owned by the American people. The EPA is on a regulation rampage, and this new water rule proves it.”

Photo via WikiCommons

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