Day: January 26, 2020

@AmericanRivers statement on @POTUS’s administration’s “dirty water” rule #DirtyWaterRule @EPA

A wetland area along Homestake Creek in an area that would be flooded by a potential Whitney Reservoir. The cities of Aurora and Colorado Springs are looking to develop additional water in Eagle County and divert it to the Front Range. Photo credit: Brent Gardner-Smith/Aspen Journalism

Here’s the release from American River (Chris Williams):

The Trump Administration [on January 23, 2020] announced the release of its Revised Definition of the Waters of the United States, a sweeping federal rule that drastically weakens the reach and authority of the Clean Water Act to protect the Nation’s rivers, small streams and wetlands.

In 2001 and 2006, two convoluted Supreme Court rulings created uncertainty about the extent of the Clean Water Act’s jurisdiction. The Obama administration engaged in a lengthy rulemaking process to clarify the authority of the Act to protect small streams and wetlands that are so important to river health and contribute to the drinking water supplies of two in three Americans. Following years of painstaking scientific, economic and legal analysis, hundreds of public meetings, and a comment period that produced over a million comments, the “Clean Water Rule” was adopted in 2015, reaffirming the Act’s broad authority “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

The Trump administration’s rule replaces the Clean Water Rule, undermining protection of rivers, wetlands, and clean water. It uproots decades of regulatory practice and judicial precedent with little public input and virtually no scientific analysis. It is setting aside the findings of over 1,200 peer-reviewed studies, collected in EPA’s own Connectivity Report, that demonstrate the vital importance of small streams and wetlands to the water quality, flow, and overall ecological health of larger rivers downstream. The rule deals a crippling blow to the Act’s authority to protect wetlands, excluding more than half of the nation’s wetlands from the Clean Water Act’s reach, and eliminating protection for almost 20% of the nation’s rivers and streams.

Bob Irvin, President and CEO of American Rivers made the following statement regarding the Trump Administration’s Revised Definition of the Waters of the United States:

“The Trump administration’s Dirty Water Rule is an affront to the health and safety of hundreds of millions of people across the country who depend on rivers and streams for clean water. It is reckless and capricious, reversing the Clean Water Rule which was firmly based on sound legal and scientific analyses, extensive fact-finding and stakeholder input, and broad popular support.

President Trump has frequently said he wants ‘crystal clean water.’ This rule will result in dirty water, plain and simple.”

Arkansas River fisherman’s lawsuit gets new life — The Ag Journal

Photo credit: The Perfect Fly Store

From The Ag Journal (Robert Boczkiewicz):

An appeals court Thursday reopened a lawsuit stemming from a dispute over fishing in the Arkansas River near Cotopaxi.

The dispute is between a fly fisherman who likes to fish in a particular spot in the river and the owners of the adjacent land where they live.

It is near where Texas Creek flows into the river.

The fisherman, Roger Hill, 77, contends he has a right to fish at the spot because he thinks the riverbed belongs to the state of Colorado.

The owners of the adjacent property, Mark Everett Warsewa and Linda Joseph, contend they own the riverbed, up to the river’s center line, where it adjoins their property.

Hill, of Colorado Springs, alleged they used force on several occasions, starting in 2012, to chase him away from his favorite fishing spot.

The Pueblo Chieftain reported in 2018 that he sued, asking a judge to declare that part of the riverbed belongs to the state and is open to public use, “so he can again safely fish (there).”

Last year, Magistrate Judge Kathleen M. Tafoya of the U.S. District Court for Colorado ruled against Hill, concluding he did not have “standing” to sue. He then took his case to the 10th Circuit Court of Appeals.

On Thursday, the Denver-based appeals court overturned Tafoya’s decision, saying she erred that Hill lacked standing of the particular type she cited…

The appeals court said in its 12-page decision that it may turn out that Hill does not have standing to sue, but not on the basis of a particular type of standing that Tafoya used in ruling against him.

Hill was represented by attorneys of an entity known as Lawyers for Colorado Stream Access.

The Upper Arkansas Water Conservancy District, based in Salida, and the Colorado Water Congress, based in Denver, joined the appeal as “friends of the court” in support of the land owners. Their missions include protecting Colorado water resources.

New @EPA water rule change receives mixed reviews in #Colorado — The Center Square

Fen soils are made of a rich, organic peat material that take thousands of years to form and require a constant groundwater source to survive. At the Rocky Mountain Fen Research Project, scientists transplanted fen soils from another site to the “receiver” site south of Leadville where they restored a groundwater spring to sustain the transplanted soils. Photo credit: Sarah Tory/Aspen Journalism

From The Center Square (Derek Draplin):

Elected officials and advocacy groups in Colorado responded to a change to a federal rule on water protections.

The previous rule, called “Waters of the United States,” or WOTUS, was established in 2015 by the Obama administration. That rule, however, was under intense scrutiny by Republicans, property rights groups, and several industries for what they perceived as federal regulatory overreach, citing it’s expansive interpretation.

That rule was repealed by the U.S. Environmental Protection Agency and the Department of the Army in September.

The new rule, called the Navigable Waters Protection Rule, was announced on Thursday at a builders’ industry trade show in Las Vegas.

The Trump administration says the new rule will still protect navigable waters from pollution but also will provide regulatory relief and more certainty for development.

“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” EPA Administrator Andrew Wheeler said in a statement. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”

The new rule creates four different categories for bodies of water to be federally regulated under the Clean Water Act, and excludes certain types of bodies of water such as ditches.

The new rule drew broad criticism from Colorado Democrats and environmental groups that work in the state.

“In Colorado, we value our clean water. Our rivers, streams, and lakes serve as the lifeblood of our communities and help support our thriving outdoor and agriculture industries,” Gov. Jared Polis said. “Our administration will continue to reject attempts by the Trump administration to gut proven ways to protect our health and environment.”

U.S. Rep. Ed Perlmutter, D-Colo., tweeted that the new rule “removes protections for smaller bodies of water & rolls back federal protections for smaller headwaters that have been protected for almost 50 years – including the Colorado River.”

Western Resource Advocates, an environmental advocacy group headquartered in Boulder, in a tweet urged state lawmakers “to stand w/ their communities & lead where the federal government won’t. We’re calling on our leaders throughout the West to come together & safeguard healthy rivers & clean water.”

Republicans and some industry groups praised the rule change for reducing regulations.

“The uncertain interpretation of the term ‘navigable waters’ created by WOTUS has left farmers, ranchers and private land owners unprotected from federal land and water grabs,” U.S. Rep. Scott Tipton, R-Colo., said “Over the last three years, President Trump’s administration has worked to repeal unnecessary and burdensome regulations with updated versions that better suit the needs of our agricultural communities.”

Don Shawcroft, president of the Colorado Farm Bureau, which advocates for agricultural interests, said the new “rule provides clarity and stability for farmers and ranchers everywhere, ensuring that farmland remains healthy and productive, and our waters protected. It is a major win for Colorado agriculture.”

Both the Colorado Chamber of Commerce and the National Federation of Independent Business-Colorado supported the rule change.

2020 #COleg: HB20-1119, State Government Regulation Of Perfluoroalkyl And Polyfluoroalkyl Substances #PFAS

PFAS contamination in the U.S. via ewg.org

From The Colorado Independent (John Herrick):

In response to proposed PFAS regulations, cities and water managers are raising concerns over their financial liability

In the summer of 2018, Lucy Molina, a 45-year-old mother of two who lives in Commerce City near the Suncor oil refinery, said a city council member told her that her tap water was contaminated with toxic per- and polyfluoroalkyl chemicals, also known as PFAS. At the time, she said, she didn’t know what the chemicals were. It was just one more reason to not drink the water in the heavily industrial north Denver area…

The city’s water utility, South Adams County Water and Sanitation District, put out a news release in July 2018 saying the water was safe to drink because the PFAS concentrations fell below the Environmental Protection Agency’s health advisory limit of 70 parts per trillion. One part per trillion is about equal to one grain of sugar in an Olympic-sized swimming pool.

But in the wake of growing public concern over PFAS, a group of chemicals used in a range of products, including firefighting foam, non-stick cooking wear and Gore-Tex waterproof outdoor gear, Colorado’s health agency is questioning whether that concentration limit is in fact safe.

“If I ask the state toxicologist and I ask experts in the field, they will never use terms like ‘safe’ with respect to PFAS,” said John Putnam, the director for environmental programs at the Department of Public Health and Environment. “Because we don’t really know, since there are limits to all these studies.”

New research has linked exposure to PFAS to health issues including cancer and immune, reproductive, and hormonal dysfunction. But the EPA’s advisory level, which is not enforceable, hasn’t changed since 2016 and seems unlikely to be revised any time in the near future. The Trump administration’s EPA has been rolling back water protections. And Congress has failed to pass comprehensive PFAS regulations, in part because Republicans, including those in Colorado’s delegation, have concerns about how much it will cost cities and water managers to comply. Compliance could include more frequent testing of water supplies costing thousands of dollars per week and upgrades to water treatment facilities that could cost millions of dollars.

That’s left Colorado in the unprecedented position of scrambling to set a drinking water standard — and then trying to enforce it. Putnam said this is a task the state doesn’t have the money or staff to handle yet. And any effort it takes to cut corners to hold polluters accountable or mandate cleanup could be challenged in court by cities, water managers and other groups concerned about their own financial liabilities…

But some residents in Colorado are tired of waiting. Since 2016, the state has known the toxic, mostly non-biodegradable “forever chemicals” have been found in Colorado’s drinking water supplies above the federal advisory limit. The chemicals have been found in groundwater within fire districts in Boulder County and near Front Range military bases, airports and other industrial sites that use PFAS-laced foam to extinguish fires. The cities of Security, Widefield and Fountain, which share a watershed with military bases and the Colorado Springs Airport, are ground zero for PFAS contamination in Colorado. A well at the Peterson Air Force Base tested at 88,000 parts per trillion for a PFAS compound. El Paso County, home to the three cities and four military sites — Air Force Academy, Fort Carson Army Base, Peterson Air Force Base and the Schriever Air Force Base — was selected by the Agency for Toxic Substances and Disease Registry as the site to take blood samples from residents and study the health effects of PFAS. The chemicals are less likely to be found in high levels in water supplies in other areas of the state, but given the chemicals’ omnipresence in modern life, they’re likely found in nearly everyone’s blood…

In response to public demand and inaction at the federal level, Colorado’s health department is asking the state legislature for legal permission to write drinking water standards for PFAS and is working on separate rules that could hold water polluters accountable by setting a groundwater standard and new permit permit requirements for how much PFAS is allowed to be released into the water.

A bipartisan bill, [HB20-1119, State Government Regulation Of Perfluoroalkyl And Polyfluoroalkyl Substances: Concerning the authority of the state government to regulate perfluoroalkyl and polyfluoroalkyl substances], would allow the state for the first time to set a hard limit on how much PFAS is allowed in drinking water supplies. Water managers also could be on the hook for testing their water supplies more frequently. Worried about the cost of compliance, water utilities will likely lobby to narrow the scope of the legislation to place limits on how often the state can require monitoring and how low a drinking water standard it can set…

The bill also could require fire departments and facilities that use PFAS to inform the state how much they have stockpiled, and if used, require that the PFAS be captured and disposed of properly.

Separate from the bill authorizing the Colorado Department of Public Health and Environment to write drinking water standards, the health department’s Water Quality Control Commission has been working on a new PFAS policy that would allow the state to regulate the chemicals through updated groundwater rules. The regulations could also set new conditions on water pollution permits.

Denver is among the cities raising concerns about the proposed regulations. The city has fire departments that use PFAS chemicals and owns the Denver International Airport, which is required by Federal Aviation Administration to use PFAS in its firefighting foam for safety certifications, and it faces financial liability for any regulations adopted. In a written comment to the state’s PFAS Action Plan, a representative for Denver said the state could be legally liable if it moves too fast with PFAS regulations, citing Colorado’s Administrative Procedures Act.

To set such standards under the state’s Administrative Procedures Act and other laws, the state will have to study health research, exposure potentials, and the cost-effectiveness of requiring utilities to meet such guidelines. That will take time and money, Putnam said. In many ways, Putnam said, Colorado’s law was written to slow the pace of regulation…

In September, lawmakers approved $500,000 so that the Colorado Department of Public Health and Environment could subsidize drinking water testing and pay a third party to analyze the samples. As of Jan. 16, of the 891 water providers and private well owners the state notified, 132 have applied for funding to test their supplies. In the 2020-2021 state budget, the department is requesting $250,000 to hire two new toxicologists to help study PFAS exposure and another $500,000 to continue the drinking water testing program.

It’s unclear whether lawmakers will approve the additional money…

Some environmentalists and water utility managers say polluters should be paying the price for cleanup and monitoring. States like New York have sued companies like DuPont and 3M, which manufacture PFAS chemicals. Scott, of the South Adams County Water and Sanitation District, said the state should focus on identifying the source of the pollution “so the cost of having to do the treatment is not passed on to our customers.”

Scott said PFAS contamination in his district could be coming from any number of industrial sources in the area. Suncor, an oil refinery located along Sand Creek, has acknowledged it has released PFAS into the water. The facility uses firefighting foam to put out petroleum-based fires…

Commerce City resident [Lucy] Molina said people should at least be given more information about their water quality. She said many of the area’s residents, nearly half of whom are Latino, speak only Spanish. The latest water report is in English. And it doesn’t mention the cancer risks of PFAS exposure.