@EPA: “…abolishing the agency…I personally think it’s a good idea” — Myron Ebell

From ColoradoPolitics.com (Peter Marcus) via The Colorado Springs Gazette:

The man who led transition efforts for President Trump at the EPA said the administration’s proposed budget signals a commitment to abolish the agency.

But Myron Ebell, a Colorado College graduate and an outspoken climate change skeptic who leads energy and environment policy at the conservative Competitive Enterprise Institute, said it is not an overnight effort.

The administration’s preliminary 2018 budget proposal released Thursday charts a course that could lead to the end of the federal environmental agency, Ebell said, speaking to a conservative group at the libertarian-leaning Independence Institute in Denver on Thursday.

Ebell had proposed Trump make a 10 percent cut to the EPA in his first budget request. The proposal unveiled Thursday would cut the agency by significantly more, up to 31 percent. It represents about a $2.6 billion cut to the agency’s relatively small, when compared to other federal agencies, $8.2 billion budget.

The cuts would result in about 3,200 employees being laid off in the initial wave, which could include many regional staff. Denver is home to Region 8 headquarters, a multi-state jurisdiction that covers much of the Intermountain West, which employs about 500 people.

“I think there’s a serious commitment here to draining the swamp,” Ebell, calling upon a popular Trump campaign mantra, said to applause.

The preliminary budget request would eliminate as much as a fifth of the agency’s workforce, which stands at around 15,000. More than 50 programs would be eliminated, including energy grants that help to fight air pollution. Scientific research would also face massive cuts.

Environmental interests had feared Trump’s budget proposal would start to chip away at the EPA, ultimately leading to closure. News of the preliminary budget sent many into a tailspin, as it potentially signals a much faster outcome.

Trump also proposed a 12 percent cut to the Interior Department and a 5.6 percent cut to the Department of Energy.

“The president’s budget is a moral document, and President Trump has shown us exactly where he stands. These unprecedented cuts will hamper the ability of our park rangers, scientists, those who enforce the law against polluters, and other Coloradans from doing their important work,” said Jessica Goad, spokeswoman for Conservation Colorado.

“This is not just cutting the fat, this is a complete butchering of programs and jobs that are critical to Colorado.”

The move leaves specific uncertainty in Colorado, where the EPA has promised to cleanup toxic leaking mines that are spilling into the Animas River in Durango. The Gold King Mine spill in August 2015 was triggered by an EPA engineering error, causing about 3 million gallons of mustard yellow sludge to pour into the river.

In the aftermath of the spill, the EPA declared the area a Superfund site, which allows it to spend significant resources to implement a long-term water quality cleanup effort. Some worry those efforts would be diminished by reductions at the EPA.

But Ebell said a pushback to the EPA’s “regulatory rampage” does not mean that environmental controls would go away. He said regulations would still be enforced – especially on the state level – including around Superfund sites and clean drinking water.

“The question is, why do we need 15,000 people working for the EPA?” asked Ebell. “I understand why we need some … Maybe abolishing the agency is something that President Trump … would want to have a discussion about … I personally think it’s a good idea.”

Busting up the EPA is not a good idea, Myron.

Across party lines, Western governors see a partner in Pruitt — @COindependent

Colorado abandoned mines

From The High Country News (Elizabeth Shogren) via The Colorado Independent:

Just a few days in office, the new administrator of the Environmental Protection Agency hosted an early Sunday morning breakfast for 11 Western governors. Scott Pruitt told them face-to-face what he’s said repeatedly since he was nominated: Under his leadership, the EPA will defer to states much more than it has in the recent past.

Pruitt made a similar vow to profoundly transform the agency the day before at the Conservative Political Action Conference (CPAC). “We’re going to once again pay attention to the states across this country,” Pruitt told a gathering of Republicans. “The future ain’t what it used to be at the EPA.”

This message resonated with the Western governors, regardless of their political affiliations, according to several members of the governors’ staffs. Alaska Gov. Bill Walker, a Republican-turned-Independent whose state is 66 percent federal land, was “encouraged by (Pruitt’s) emphasis on state’s rights,” Grace Jang, Walker’s communications director, says.

The Western governors’ unanimity is striking in an era of intense partisanship and reflects the commitment they have to work together through the Western Governors’ Association. The breakfast was an annual event of that group, a rare hub of bipartisanship and consensus building in a polarized nation. The governors are in the midst of a major effort to transform the relationship between the federal and state governments to give them more input into federal regulations.

“The Republican governors were on the same page with their Democratic colleagues in telling Pruitt, we want it to be a partnership,” says John Swartout, senior policy advisor to Colorado Governor John Hickenlooper, a Democrat. “We haven’t been happy that the EPA hasn’t always treated us as a full partner. We can make progress together.”

As they ate scrambled eggs, bacon, fried potatoes and donuts at a square table in EPA’s Washington, DC, headquarters, the governors one-by-one told Pruitt their priorities. Over the course of two hours, many mentioned their desire to have more sway over federal environmental regulations.

Western governors have collaborated for about 100 years. Their desire to present a unified voice to Washington is driven in part because of the vast amount of federal land in the West, which means decisions made in Washington have acute impacts on their states’ economies. “It’s largely a function of being so distant from Washington and needing to amplify their distant voices,” said Jim Ogsbury, executive director of the group.

In the Western Governors’ Association, the governors focus on shared objectives and pass joint resolutions. In December, for instance, they passed a resolution calling for a greater role in crafting federal regulations and in other decisions by the federal government. Other resolutions present their consensus positions on a wide range of issues, including endangered species, wildfire fire management, invasive species and abandoned mine cleanups.

Western governors from both parties felt the Obama administration’s EPA failed to adequately consult the states as it crafted some important environmental regulations, such as the 2015 Clean Water Rule. (That rule was temporarily blocked in 2015, pending resolution of a court challenge brought by industry groups and 31 states.) “Had the EPA worked with us on the rule upfront it could have been a better rule,” Swartout says. EPA did address some comments the governors made about how the proposed rule impinged on state authority over water management, but not all of them.

Just this week, President Donald Trump signed an executive order to launch a rollback of that rule and, until it’s rewritten, limit federal oversight to waterways that are navigable, leaving the rest to the states. Pruitt announced that he would rescind the Obama rule and write a new one that “restores the states’ important role in the regulation of water.”

“We believe (Pruitt’s EPA) will partner with states in a way that’s meaningful; in a way that quite frankly the previous administration did not,” says Nephi Cole, Wyoming Gov. Matt Mead’s policy advisor policy.

Many scholars caution that undoing that rule will be particularly detrimental in the arid West, where so many small streams and those that run only intermittently are crucially important for wildlife and water quality and quantity. States tend to be more responsive to local industries, because of the benefits they bring to the economy like jobs and tax revenue.

But Cole argues that it’s a “false narrative” to suggest that giving states more control equates to allowing more pollution and less environmental protection. In another resolution adopted in December, Western governors assert that they want to be the ones to decide how to balance the needs of industry in their states and the requirements of the Clean Water Act.

During the two-hour breakfast, Pruitt spent most of the time listening to governors. (Most years, the secretaries of Interior, Agriculture, Energy and other cabinet members important to Western states attend the breakfast, but as of Sunday, Pruitt was the only one of those who had been confirmed by the Senate.) Colorado Gov. John Hickenlooper urged Pruitt to personally engage in the Gold King Mine controversy. A 2015 blowout at the mine unleashed a surge of acid mine drainage down the Animas River. Pruitt committed to visiting Colorado and meeting with local and state officials, Swartout says.
A big priority for some governors is that the EPA continues to negotiate settlements with companies responsible for creating toxic waste sites covered under Superfund.

Oregon Gov. Kate Brown, a Democrat, urged Pruitt to move forward with the plan to clean up the Portland Harbor, a Superfund site, so the city can revitalize the waterfront and create jobs. She also stressed her state’s continued commitment to fighting climate change, according to her press secretary, Bryan Hockaday.

Montana Gov. Steve Bullock, who heads the Western Governors’ Association, wants Pruitt to keep the pressure on to finally reach a settlement on the Superfund sites in and around Butte, Montana, where historic copper mining and smelting left behind the nation’s largest toxic waste site, according to his press secretary, Marissa Perry. After many years, negotiations between the EPA and Atlantic Richfield Corporation, owned by BP, have picked up steam. Bullock wants to make sure the momentum isn’t lost.

While the Western governors break out of the hyper-partisanship that’s plagued other branches of government and see some opportunity to work with Pruitt, potential major budget cuts to the EPA may give Pruitt a lot less leeway to respond to state needs.

This week, the White House sent agencies an outline of the president’s draft budget that reportedly would gut the EPA’s $8 billion budget, cutting by 30 percent the grants it sends to the states to implement air, water and toxic waste regulations. Pruitt told E&E News that he’s asking the White House to retain more funding for the states to improve air quality, clean up Superfund sites and improve aging water and wastewater infrastructure. Programs slated for zero funding include grants to clean up abandoned industrial sites and funding to bring safe drinking water and sewer systems to Native villages in Alaska, according to the Washington Post. More details on the budget are expected later this month. It’s not clear if the White House can win approval for its vision of a much smaller EPA.

The proof of whether the governors and Pruitt will be able to work together will emerge in coming months, as the Trump administration pursues its agenda and rolls back existing rules. “We’re trying to work with him. We need to work with the federal government,” Swartout says. “It’s too early to know. We have to see how it all plays out. It’s just speculation at this point.”

Correspondent Elizabeth Shogren writes HCN’s DC Dispatches from Washington. This story originally appeared in High Country News on March 3, 2017.

Why Trump’s water order heartens ranchers and worries conservationists — @COIndependent

Will Hobbs, Greg Hobbs, Dan Hobbs, and a string of fish for dinner, Mary Alice Lake, Weminuche Wilderness, 1986 via Greg Hobbs
Will Hobbs, Greg Hobbs, Dan Hobbs, and a string of fish for dinner, Mary Alice Lake, Weminuche Wilderness, 1986 via Greg Hobbs

From The Colorado Independent (Kelsey Ray):

President Donald Trump has directed the Environmental Protection Agency to roll back a clean water regulation that Colorado ranchers have criticized as overly burdensome but environmentalists and outdoor enthusiasts say is essential to protecting the health of the state’s rivers and streams.

Trump’s executive order Tuesday concerns what is known as the Waters of the United States rule, a regulation passed in May 2015 under President Barack Obama that clarified the scope of waters protected under the 1972 Clean Water Act. Calling Obama’s expanded regulations “a disaster” and “one of the worst examples of federal regulation,” Trump said his order was “paving the way for the elimination” of the rule, which had yet to be implemented.

Obama’s rule set about clarifying which U.S. waters are protected from pollution under the Clean Water Act. Until 2015, the Act protected “navigable waters, interstate waters and the territorial sea” and also, on a case-by-case basis, waters that were upstream given that protecting major waterways requires looking after what flows into them. Obama’s rule expanded protections to include most tributaries, wetlands near floodplains and even some “isolated” waters — those that don’t actually flow into protected waters, but are near them.

Trump’s order seeks to scale back this definition to be more in line with an opinion issued by the late U.S. Supreme Court Justice Antonin Scalia in a 2006 case about the Clean Water Act. In ruling that Clean Water Act protections did not extend to a particular wetland, Scalia defined protected waters as “relatively permanent, standing or continuously flowing bodies of water.” Obama’s rule, in contrast, relied more heavily on the definition presented in Justice Anthony Kennedy’s concurring opinion. The Supreme Court could not reach a majority on that case, ruling 4-1-4.

Rob Harris, a senior attorney at Western Resource Advocates, says that under Scalia’s definition, impermanent and seasonal streams and waterways, such as those that rely on snowmelt or are particularly vulnerable to drought, may not be protected. That poses a particular threat in Colorado because, Harris says, only 15 miles of Colorado rivers and streams are what might be considered traditionally navigable waters. “The other 95,000 stream miles are not,” he said.

Trump said he was signing the order on behalf of farmers, ranchers and agricultural workers, who find the rule overly burdensome. “It’s prohibiting them from being allowed to do what they’re supposed to be doing,” he said, adding that the Waters of the U.S. rule applies to “nearly every puddle or every ditch on a farmer’s land, or anyplace else that they decide.” As an example, Trump said, “If you want to build a new home, for example, you have to worry about getting hit with a huge fine if you fill in as much as a puddle — just a puddle — on your lot.”

But that’s not true. The rule, in fact, clarified that the Clean Water Act does not apply to puddles, nor to groundwater, artificial ponds and lakes, artificial dryland irrigation or to many kinds of ditches. Trump’s remarks upon signing the rule, saying that “In one case in a Wyoming, a rancher was fined $37,000 a day by the EPA for digging a small watering hole for his cattle” and that “I’ve been hearing about it for years and years” could not have been as a result of the Waters in the U.S. rule, which, again, had not yet gone into effect.

Still, farmers and ranchers said the rule was unclear about what agricultural-related waters were included. They worried, as Politico reported, that the rule would “give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch.”

“We wanted to see the rule rescinded. We asked that it be reconsidered,” said Terry Fankhauser, the executive vice president of the Colorado Cattlemen’s Association which contributed funds to a lawsuit filed by a national cattlemen’s association and several commodities groups challenging the Obama administration’s expanded definition of which bodies of water should be protected.

Fankhauser said groups like his worked with the Environmental Protection Agency to try to find answers, but remained unclear about what enforcement might look like. He thought the best answer would be to redefine the terms and reconsider the rule itself before finalizing it.

Environmentalists worry that Trump’s order will hurt Colorado’s water quality and wildlife by narrowing which waterways receive protection from pollution. “The people of the American West want clean, healthy rivers, not a return to the days when rivers in America caught fire and were severely polluted and dead,” Gary Wockner, director of Save The Colorado, said in a statement. The way he sees it, basing water protections on Scalia’s definition could leave the Poudre River, the South Platte River and rivers across the Front Range vulnerable to pollution not just from agriculture, but from coal-fired power plants, refineries and even city wastewater treatment facilities.

Sportsmen, too, are concerned about the environmental effects of the order. David Nickum, the executive director of Colorado Trout Unlimited, said that anglers know clean water starts at the source. “If we degrade and pollute those headwaters, it is only a matter of time until the next snowmelt or rainstorm sends those impacts down into our larger rivers and water supplies.” Chris Wood, the CEO of Trout Unlimited, said that altering the rule to follow Scalia’s definition would cause 60 percent of U.S. streams and 20 million acres of wetlands would lose protection of the Clean Water Act. That would be, he said, “an unmitigated disaster for fish and wildlife, hunting and fishing, and clean water.”

But Fankhauser insists that clean water matters to cattlemen, too — “it’s not only a right, it’s an obligation to us” — and said calling Trump’s order a rollback of the Clean Water Act was a “pretty significant overstatement.” Rather, he says, it’s an opportunity to come up with a solution that protects the environment without strapping the agricultural sector with unnecessary regulations.

Trump can’t simply undo Obama-era water quality protections with his executive order. His EPA chief Scott Pruitt will have to undergo a lengthy federal rulemaking process to repeal the Waters of the U.S. rule. And, as Vox reports, federal courts have historically interpreted the rule as Kennedy did, rather than along Scalia’s narrower view. [ed. emphasis mine]

Colorado, in the meantime, has the ability to enact more stringent water regulations. Harris, who hopes either the state legislature or the Colorado Department of Public Health (CDPHE) will take on the task, wondered, “Are we going to wait until something bad happens and our waterways are impacted, or are we going to protect our waterways before the problem even starts?”

Jacque Montgomery, spokesperson for Gov. John Hickenlooper, says the administration wasn’t completely satisfied with the Waters of the U.S. rule, but that “the complete absence of a rule means ambiguity and uncertainty” regarding which waters apply. Said Montgomery, “Colorado aims to keep protecting our watersheds and streams,” and will follow through on the watershed and stream management plans called for in the state water plan. Her remarks, says CDPHE spokesman Mark Salley, speak for that organization as well.

Trout Unlimited’s Nickum predicted a lengthy battle in Colorado from groups looking to push against what they see as a threat to their clean water.

“You can expect Colorado sportsmen and women to be aggressively involved, fighting for the headwater streams and wetlands that are essential for healthy fish and wildlife habitat,” he said.

Executive order issued for review of the @EPA ‘Waters of the US’ rule

Evening clouds along the Yampa River in northwestern Colorado.

From The Denver Post (Bruce Finley):

President Donald Trump’s promised overhaul of environmental rules gained momentum Tuesday as he ordered a review and possible rollback of protections for streams and wetlands – igniting opposition from conservation groups.

The Senate meanwhile is poised to vote on rolling back two other rules passed by the Obama administration to protect public lands and air quality.

Trump’s executive order targets the EPA’s “Waters of the United States” rule, finalized in 2015, that reinterpreted the Clean Water Act to extend federal protection to small and seasonal waterways. These are critical for water supplies in water-scarce regions of the West.

EPA officials have said the rule will have the greatest impact in states such as Colorado where protection for small and seasonal water previously was uncertain. In Colorado, 68 percent of streams are seasonal.

The EPA insisted the rule wouldn’t get in the way of agriculture or require new permits and that the benefit was giving federal officials power to crack down on polluters.

But some Colorado farmers, a national coalition of industry groups, developers, and fertilizer and pesticide makers have fought the rule. They said it could lead to EPA enforcers looking over producers’ shoulders.

The rule was made to end uncertainty created by Supreme Court decisions in 2001 and 2006 that left small streams, headwaters and wetlands in limbo. Killing it could remove protection for streams and wetlands that are seasonal, or rain-dependent, and that affect downstream waters…

Natural Resources Defense Council President Rhea Suh issued a statement accusing Trump of protecting polluters instead of water and said rolling back the rule would threaten drinking water sources for 117 million Americans.

“The Clean Water Rule’s safeguards are grounded in science and law. The rule was developed over many years, after more than 1 million public comments. We all rely on healthy wetlands to curb flooding, filter pollutants, support fish, waterfowl and wildlife, and feed our rivers and lakes,” Suh said. “We will stand up to this reckless assault.”

Hunters and anglers appealed to Trump to reverse course and keep the rule. “Sportsmen will not settle for watered-down protections or negligence for the habitat that supports the fish and wildlife we love to pursue,” Theodore Roosevelt Conservation Partnership president Whit Fosburgh said on behalf of a five-group coalition.

The American Sustainable Business Council, representing 250,000 businesses, issued a statement saying that “undoing this critical environmental rule is naive” and that doing so “will actually hurt most businesses and put jobs in jeopardy.”

Later this month, the Senate is expected to vote on a House of Representatives-backed effort to kill a federal rule giving Americans more of a voice in large-scale planning for projects using public land, including 8.4 million acres in Colorado.

Senators also are to vote on a House-backed reversal of the new federal methane rule that requires oil and gas companies using public lands to control air pollution. In both strikes against Obama administration environmental regulations, lawmakers have invoked the Congressional Review Act that lets them roll back executive action taken during the past 60 legislative work days if the rule is shown to impose excessive costs, exceed agency authority or duplicate existing rules.

From the Associated Press (John Flesher) via KOAA.com:

Trump instructed the EPA and the Army Corps to “rescind or revise” the rule, which can’t be done quickly or easily. The Obama rule hasn’t taken effect because of the dozens of lawsuits pending in the 6th U.S. Circuit Court of Appeals in Cincinnati. Separately, the Supreme Court is considering whether the 6th Circuit should have jurisdiction over those cases. Legal experts say the Trump administration likely will attempt to have the suits dismissed while it crafts a new regulation.

The president’s executive order requires the agencies to follow the guidance of the late conservative Justice Antonin Scalia in producing a new definition of protected waters. In a 2006 opinion, Scalia interpreted federal jurisdiction narrowly, saying only “relatively permanent, standing or continuously flowing” waters or wetlands with a surface connection to navigable waterways were covered.

After proposing a new rule, the agencies would have to take public comments and consider them when putting together a final version. Environmental groups would be certain to challenge a rule based on the Scalia standards, saying it ignores scientific evidence.

“This is likely to take years,” said Jan Goldman-Carter, an attorney for the National Wildlife Federation.

From The Fort Collins Coloradoan (Jacy Marmaduke):

Environmental law experts say the order has little legal significance, but it still prompted strong reactions from both sides of the issue.

Issued Tuesday, the order directs the Environmental Protection Agency and the U.S. Army Corps of Engineers to rescind or revise a 2015 EPA rule that sought to expand federal jurisdiction under the Clean Water Act. The act allows the EPA to regulate “waters of the United States” but doesn’t include a precise definition of that term.

So with a rule finalized in 2015, the EPA opted for a more exact definition of “waters of the U.S.” that includes seasonal streams and wetlands adjacent to those streams, among other things. The 2015 definition would expand Clean Water Act jurisdiction by an EPA-estimated 3 percent.

It’s not yet clear how much jurisdiction would be expanded in Colorado.

Opponents of the rule fear it would actually increase Clean Water Act jurisdiction by a far greater margin than 3 percent, creating more red tape for farmers, ranchers and developers at a questionable environmental benefit. EPA administrator Scott Pruitt, who led a multistate lawsuit against the rule, once called it “the greatest blow to private property rights the modern era has seen.”


In his executive order, Trump asks the EPA and Army Corps of Engineers to model their revised water rule off a minority opinion penned by former Supreme Court Justice Antonin Scalia, who argued seasonal streams shouldn’t be protected under the Clean Water Act.

That would mean 60 percent of U.S. streams and 20 million acres of wetlands would lose Clean Water Act protection, according to Trout Unlimited. That would be “an unmitigated disaster” for fish and wildlife, hunting and fishing, and clean water, Trout Unlimited President and CEO Chris Wood said in a statement…

The American Farm Bureau Federation applauded Trump’s move to “ditch” the water rule, which the bureau has argued could extend government regulation at the expense of farmers and ranchers…

Two Colorado State University water experts weighed in on the implications of rolling back the water rule in a Monday blog post.

Withdrawing or weakening the water rule will “likely leave regulators interpreting case-by-case” whether certain waterways are covered under the Clean Water Act and leave “land and water owners guessing about what they can do with their resources,” according to the post by Colorado Water Institute Director Reagan Waskom and CSU senior research scientist and scholar professor David J. Cooper.

” … In the end, repealing the rule won’t answer the underlying question: how far upstream federal protection extends,” they wrote.

Trump’s order isn’t enough on its own to “undo” the rule, which is stalled pending litigation.

“It’s like the president calling Scott Pruitt and telling him to start the legal proceedings,” Richard L. Revesz, a professor of environmental law at New York University, told the New York Times. “It does the same thing as a phone call or a tweet. It just signals that the president wants it to happen.”

Rather than waiting for the rule to snake through the court system in hopes of eventual Supreme Court defeat, the order indicates that Pruitt will likely ask a judge to pause the court proceedings while he and the EPA work on a replacement for the water rule.

Pruitt has said he plans to replace the water rule with something else, but whatever he comes up with will have to stand up to a lengthy public comment period and likely litigation.

@EPA Waters of the US rule on the chopping block

From The Conversation (Reagan Waskom, David J. Cooper);

President Trump is expected to issue an executive order directing federal agencies to revise the Clean Water Rule, a major regulation published by the Environmental Protection Agency and the Army Corps of Engineers in 2015. The rule’s purpose is to clarify which water bodies and wetlands are federally protected under the Clean Water Act.

EPA Administrator Scott Pruitt led a multi-state lawsuit against the rule as Oklahoma attorney general, and has called it “the greatest blow to private property rights the modern era has seen.”

At the Colorado Water Institute at Colorado State University, we work in partnership with the farm and ranch community to find solutions to difficult western water problems. Farmers and ranchers often express frustration with one-size-fits-all worker protection, food safety, animal welfare, immigration, endangered species and environmental regulations. So we understand their concern that this rule may further constrain agricultural activities on their land.

In particular, they fear the Clean Water Rule could expand federal regulations that impact their private property rights. However, regulatory agencies and the regulated community need to know the limits of the Clean Water Act’s reach so they can take appropriate measures to protect water resources. If the rule is scrapped, we still will need to know which water bodies require protection under the law.

Which waters?

The Clean Water Act of 1972 protects the “waters of the United States” from unpermitted discharges that may harm water quality for humans and aquatic life. However, it leaves it up to EPA and the Army Corps of Engineers to define which waters the law covers.

Agencies and the courts agree that this term includes “navigable waters,” such as rivers and lakes. It also covers waterways connected to them, such as marshes and wetlands. The central question is how closely connected a water body must be to navigable waters to fall under federal jurisdiction.

Our Clean Water Rule protects the streams and wetlands that feed our rivers, lakes, bays, and coastal waters. These waters are critical for agriculture, healthy communities, our economy, and our way of life. Graphic via @EPA.
Our Clean Water Rule protects the streams and wetlands that feed our rivers, lakes, bays, and coastal waters. These waters are critical for agriculture, healthy communities, our economy, and our way of life. Graphic via @EPA.

In 2001 and 2006, the Supreme Court handed down rulings that narrowed the definition of protected waters, but used confusing language. These opinions created regulatory uncertainty for farmers, ranchers and developers.

The Supreme Court wrote in the 2006 case, Rapanos v. United States, that if a water body had a “significant nexus” to a federally protected waterway – for example, if a wetland was some distance from a navigable stream but produced a relatively permanent flow to the stream – then it was connected and fell under federal jurisdiction. But it failed to clearly define the significant nexus test for other situations.

The Clean Water Rule seeks to clarify which types of waters are 1) protected categorically, 2) protected on a case-by-case basis or 3) not covered. Here are some of the key categories:

  • Tributaries formerly were evaluated case by case. Now they are automatically covered if they have features of flowing water – a bed, a bank and a high water mark. Other types, such as open waters without beds and banks, will be evaluated case by case.
  • “Adjacent waters,” such as wetlands and ponds that are near covered waters, are protected if they lie within physical and measurable boundaries set out in the rule.
  • “Isolated waters” are not connected to navigable waters but still can be ecologically important. The rule identifies specific types that are protected, such as prairie potholes and California vernal pools.
  • Vernal pools form in winter and spring and support many types of animals and plants. Photo credit BLM.
    Vernal pools form in winter and spring and support many types of animals and plants. Photo credit BLM.

    EPA estimated that the final Clean Water Rule expanded the types of water subject to Clean Water Act jurisdiction by about 3 percent, or 1,500 acres nationwide. Opponents clearly think it could be much broader – and until they see the rule implemented on the landscape, their fears may have some basis in fact.

    Protecting drainage ditches?

    Industry and agriculture groups believe the new rule defines tributaries more broadly. They see this change as unnecessary overreach that makes it difficult to know what is regulated on their lands.

    Western farms are laced with canals that provide critical irrigation water during the growing season. These canals and ditches divert water from streams and return the excess through a downstream return loop, which is fed by gravity. Because they are open and unlined, they also serve as water sources for wildlife, ecosystems and underground aquifers. And because they are connected to other water bodies, farmers fear they could be subject to federal regulation.

    The only way to surface-irrigate in western valleys without affecting local water systems would be to lay thousands of miles of pressurized pipes, like those that carry water in cities. This approach would be impractical in many situations and incredibly expensive.

    More generally, farmers and ranchers want to be able to make decisions about managing their land and water resources without ambiguity or time-consuming and expensive red tape. In spite of EPA assurances, they worry the Clean Water Rule could include agricultural ditches, canals and drainages in the definition of “tributary.”

    Irrigation ditch and sprinkler, Silver Creek, Idaho.  Sam Beebe/Flickr, CC BY
    Irrigation ditch and sprinkler, Silver Creek, Idaho. Sam Beebe/Flickr, CC BY

    They fear EPA will use vague language in the rule to expand its power to regulate these features and change the way they are currently operated. They also fear becoming targets for citizen-initiated lawsuits, which are allowed under the Clean Water Act. Moreover, they are skeptical the outcomes will significantly benefit the environment.

    Former EPA Administrator Gina McCarthy argued that the rule would not unduly burden farmers. “We will protect clean water without getting in the way of farming and ranching,” McCarthy told the National Farmers Union in 2015. “Normal agriculture practices like plowing, planting, and harvesting a field have always been exempt from Clean Water Act regulation; this rule won’t change that at all.”

    All waters eventually connect

    Farmers and ranchers are independent by nature and believe they know what is best for the stewardship of their own land. They tend to be regulation-averse and believe voluntary approaches to water quality provide the flexibility needed to account for site-specific variations across the landscape. However, science shows that relatively minor effects at the edge of one field can aggregate across a watershed in cumulative impacts that are significant and sometimes serious.

    From an ecological perspective, scientists have long understood that surface water bodies and tributary groundwater within a watershed are connected over time. Even if it takes years, water will move across and through the landscape. Determining which tributaries have a “significant nexus” to traditional navigable waters depends on how you define “significant.”

    Even small wetlands and intermittent ponds provide ecosystem services that benefit the larger watershed. Wetlands and small water bodies that are geographically isolated from the floodplain may still impact navigable waters as either groundwater flows or surface runoff during heavy or prolonged precipitation events.

    In that sense, all water runs downhill to the stream eventually. As a dozen prominent wetland scientists wrote last month in an amicus brief to the Sixth U.S. Circuit Court of Appeals, which is reviewing the Clean Water Rule, “the best available science overwhelmingly demonstrates that the waters [protected] categorically in the Clean Water Rule have significant chemical, physical, and biological connections to primary waters.”

    Scientists and ecologists agree interpreting the degree and frequency of this kind of connectivity requires site-by-site analysis. We now understand more clearly how isolated water bodies function on the landscape as part of a larger complex, and our knowledge can help clarify how directly water bodies are connected. But deciding where to draw the bright line of regulatory certainty may lie beyond the realm of science.

    If the Trump administration withdraws or weakens the Clean Water Rule, it is likely to leave regulators interpreting case by case whether tributaries and adjacent waters are covered, as they have been doing since 2006, and land and water owners guessing about what they can do with their resources. So in the end, repealing the rule won’t answer the underlying question: how far upstream federal protection extends.

    Douglas Creek Conservation District annual meeting recap

    White River via Wikimedia
    White River via Wikimedia

    From The Rio Blanco Times (Jennifer Hill):

    2016 saw the finalization and implementation of the Rio Blanco Land Use Plan. The plan, which had a four-year creation process, was accomplished in partnership with the former board of county commissioners. It endeavors to influence federal decisions by providing local input regarding federal lands. Because federal law requires that federal agencies, such as the BLM, give “meaningful consideration” to plans developed by local governments and conservation districts, the district has been able to gain a bigger seat at the table during the decision making process. The plan has already been put into use in addressing sage grouse issues and has allowed a conservation district representative to attend the BLM’s weekly NEPA meetings where they can officially comment on current issues, such as the BLM’s travel management plan.

    The other major event impacting the conservation districts was the news that their mill levy had been incorrectly assessed causing an 83 percent budget reduction for 2017. The mill levy, which began collection in 1989, is only eligible to receive monies from real property. However, since its inception, it was collecting on both real and personal property. According to Hendrickson the oil and gas industry were hit the hardest. The impacted companies were given the opportunity to request abatement for the past two years’ collection. Hendrickson expressed extreme gratitude that none of the companies had, and instead expressed support for the work undertaken by the districts. The companies left substantial money in the coffers of the districts, with Enterprise being eligible for $135,000, Williams $65,000 and XTO $30,000. To help ease the budget transition the former board of county commissioners helped fund the districts for the 2017 year.

    Meeker resident Gary Moyer, who sits on the National Association of Conservation Districts, provided a short update. The NACD is currently pushing for Congress to oppose any EPA authority over water quantity and the recently released BLM Planning 2.0. According to Moyer, Planning 2.0 does not allow for enough local input, despite the claim by the BLM that local input is the very purpose of the new plan. Moyer also cited concerns that it gives environmental groups who are not locally based a much bigger seat at the decision making table. He is hopeful that the plan will be killed by the Senate.

    Senator Cory Gardner’s office sent a representative to address the group. Betsy Bair, who manages Gardner’s Grand Junction office, confirmed that Senator Gardner does not support BLM Planning 2.0 and is opposing the BLM’s vent and flare regulations, which impact the oil and gas industry.

    The second half of the evening was filled with talk of water issues, many of which have significant impact to those living on the White River.
    Marsha Daughenbaugh of the Community Agriculture Alliance informed the group of an upcoming Yampa/White River Basin water workshop. The workshop will take place on March 22 in Steamboat. Agriculture producers will be provided with the opportunity to learn about The Colorado Water Plan and how it may impact them. More information can be found at coagwater. colostate.edu.

    Jim Pokrandt of the Colorado River Conservation District discussed the importance of Colorado snow pack. “We are all snow farmers,” he said. Pokrandt talked about the increasing incidence of water being pulled from production agriculture to the front range and the need to keep water moving from the East to the West. The Colorado River Conservation District will be piloting a program this year to conserve water in the Grand Valley, paying farmers to leave fields fallow. Pokrandt expects more than $750,000 to be paid to participating farmers this year.

    The final speaker of the evening was Alden Vanden Brink from the Rio Blanco Water Conservancy. Vanden Brink updated the audience on the White River storage project, which is currently seeking to begin Phase II which includes modeling, preliminary studies and stakeholder outreach. Following Phase II the district will seek permitting, which Vanden Brink says can be a very long process.

    The Douglas Creek Conservation District meets monthly, on the first Wednesday at 6 p.m. in Rangely. In coming meetings they will be discussing the future of the district.

    #AnimasRiver: @EPA — Cement Creek, #GoldKingMine, summer project plan

    From The Durango Herald (Jonathan Romeo):

    At the Animas River Stakeholders Group meeting in Silverton on Thursday, Superfund site project manager Rebecca Thomas told the 20 or so attendees the EPA has laid out a work plan for the summer.

    Thomas said much of the work will be a continuation of last year’s activities, including collecting data and water samples, as well as looking at flow control structures at the Gold King Mine, the site of the EPA-triggered mine spill in August 2015.

    The EPA also will install a pressure gauge system to monitor the bulkhead at the Mogul Mine, adjacent to the Gold King, which are both significant contributors of heavy metals into Cement Creek, a tributary of the Animas River.

    The EPA wants to install a ground monitoring well between the inner and outermost bulkheads at the American Tunnel, the drain for the Sunnyside Mine workings. It’s suspected the American Tunnel’s water level has reached capacity and could be responsible for increased discharges out of adjacent mines, such as the Gold King.

    Thomas said crews will compile more data for the possible closure of the bulkhead at the Red & Bonita Mine, another contributor into Cement Creek. Specifically, EPA wants to better understand the water hydrology of the mine workings.

    As for the EPA’s interim water-treatment plant at Gladstone that treats discharges out of the Gold King Mine, Thomas said the agency is looking at about six sites to store the mine waste.

    “This is increasingly more important for us as we start to run out of room for sludge management (at Gladstone),” Thomas said.

    She said there may be more than one location for the mine waste, and that the agency hopes to have that finalized by May.

    Thomas added that the EPA is planning a few quick-action remediation projects at sites within the Superfund listing where there is an immediate benefit to the environment, water quality and managing adit discharges.

    She said 27 of the 48 sites qualify for early-action remediation, which could include fixing mine waste ponds, remediating waste rock dumps or redirecting clean surface water away from known polluted areas.

    “There’s no way we’re going to get all the work done, but the hope is to get some of the work done,” Thomas said.

    The Bureau of Land Management, Colorado Department of Public Health and Environment and the U.S. Forest Service – all working on the Superfund site – also listed a few projects they have planned for this year.

    Most notably, the BLM has permission to undergo a pilot project with Texas-based Green Age Technologies to test a new treatment on mine wastewater that many in the stakeholders group have said holds promise for low-cost water treatment.

    The BLM and Green Age will spend 21 days treating discharges out of the American Tunnel and Gold King Mine with a technology known as cavitation, which separates metal ions from water.

    The EPA had promised the town of Silverton before the community supported Superfund designation that the agency would embrace new technologies for mine-waste treatment.