Scott Pruitt stops in #Utah for #WOTUS briefing

Stevens Arch viewed from Coyote Gulch photo via Joe Ruffert

From The Deseret News (Amy Joi O’Donoghue):

EPA Administrator Scott Pruitt visited Utah as part of multistate tour to get input on how the agency can be more responsive to states’ needs in general and in specific how the controversial Waters of the United States rule should be retooled.

During his tour of Utah, Pruitt stopped off at the Bitner Ranch and Conservatory in Park City to get a firsthand look at a small pool of water that falls under federal regulation due to the rule, as well as a subdivision development hampered by permitting requirements…

Pruitt is acting under the direction of an executive order issued in February by President Donald Trump that called for a rollback of the so-called WOTUS rule, which inspired a firestorm of controversy when it was adopted in 2015.

Although celebrated by sportsmen’s groups and environmental organizations as the most comprehensive and significant overhaul of the Clean Water Act in more than 40 years, the rule raised the ire of states, farmers, ranchers and industry officials who complained about its scope and ambiguity.

At the time of its adoption, federal regulators insisted the rule only clarified protections for seasonal waterways that are critical to downstream communities. The EPA and Army Corps of Engineers contended the rule did not expand the scope of jurisdictional oversight — an assertion hotly contested by the National Association of Counties, which argued even ditch maintenance projects would require a Army Corps of Engineers permit.

In late June, Pruitt initiated a proposal to repeal the Waters of the United States rule and later invited states to offer their input on a new regulation that would incorporate a standard in a 2006 U.S. Supreme Court decision. That test said federal jurisdiction would only apply to “relatively permanent, standing or continuously flowing bodies of water…

Utah Farm Bureau President Ron Gibson accompanied Pruitt on the tour Tuesday and praised the EPA action.”

[…]

Environmental groups and conservation organizations that include the Theodore Roosevelt Conservation Partnership favored the regulation, citing its protection of wetlands — particularly the Prairie Pothole Region that is home to upward of 70 percent of the ducks in North America.

Seven scientific organizations that include the Society of Wetlands Scientists argued in a letter to Trump that the rule should be left intact.

In a separate announcement during his visit, Pruitt said the EPA will revisit a previous ruling on Utah’s regional haze plan, allowing the state to come up with additional visibility modeling to look at impacts from a pair of PacifCorp-owned power plants to nearby national parks.

Local officials travel to D.C. to lobby for Bonita Peak Mining District Superfund site funding

On April 7, 2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear.
Eric Baker

From The Durango Herald editorial board:

Good representatives, at every level of government, are willing to go the extra mile.

In mid-June, Durango City Councilor Dean Brookie, La Plata County Commissioner Brad Blake and San Juan County Commissioner Scott Fetchenhier did just that, both literally and figuratively, by traveling to Washington, D.C. with Ty Churchwell of the Durango office of Trout Unlimited.

Armed with letters and messages from counties and town councils, chambers of commerce and other Animas River stakeholders, their aim was to meet with Environment Protection Agency director Scott Pruitt. Their goal: to lobby for priority status and adequate funding for the Bonita Peak Mining District Superfund project, now in its investigative stages.

Heading east, the four were worried. While Pruitt had announced that Superfund projects – there are 1,300 across the country – would be a top priority of the agency under the Trump administration, the preliminary 2018 federal budget released in March showed a 25 percent cut in funding for the program.

To their chagrin, the first part of the mission failed. Pruitt was out of the country and could not keep his appointment.

But good representatives are by nature persistent. And optimistic. Instead of a meeting with Pruitt, the four met with eight high-ranking EPA officials and were joined via phone by more staff members in Denver intimately familiar with the Bonita Peak listing.

Churchwell came away convinced that the cleanup and mitigation of acid mine drainage contaminating the headwaters of the Animas River is at the top of the agency’s list.

“The response was that Bonita Peak is a stated priority of the EPA,” he said. “We feel confident that the agency is deeply committed.” More proof of that statement is evident in the work now being done. While many Superfund sites sit idle, Churchwell said, the Bonita Peak project is underway.

That Brookie, Blake and Fetchenhier came away convinced as well is due in no small part to the negative publicity generated by the Gold King Mine spill in August, 2015. The EPA’s role in causing the disaster is well known, and the visitors to Washington were not about to let the agency off the hook. As Brookie reminded EPA staff, “You had your hands on the shovel.”

That played into the other message the group wanted to convey, Churchwell added, that this project can be the agency’s “opportunity to shine, and demonstrate how a federal agency can respond and do it right.”

All indications are that the agency agrees.

Before leaving Washington, the four also met with Sens. Michael Bennet and Cory Gardner and Rep. Scott Tipton to ask the trio for a coordinated and united show of support for the project.

We are both fortunate and thankful for the efforts made by our local elected officials to ensure the EPA makes good on the promise the Superfund program holds for a restored Animas River watershed.

Thanks also go to Churchwell for organizing and finding the means to fund the journey; no taxpayer money was used for the trip. In return, he would like to see sustained local interest and community oversight of the project. More opportunities to participate arrive next month with a series of informative meetings followed by a tour of the mining district in September.

We should all capitalize on the momentum generated by the visit; find details at http://wearetheanimas.com.

Potential wide-ranging effects of @EPA redo of #WOTUS rule

Farmers Highline Canal Arvada.

From The Denver Post (Bruce Finley):

Less than 30 percent of Colorado’s estimated 95,000 miles of streams are likely to qualify for protection if the current system is changed as proposed, according to a 2009 study by the conservation group Trout Unlimited. EPA data show that 77,850 miles of waterways in Colorado are ephemeral, only flowing seasonally or during rain.

Federal environmental officials must protect “waters of the United States” under the nation’s landmark 1972 Clean Water Act — by requiring property owners to obtain permits designed to minimize impact before water can be polluted or wetlands destroyed. The U.S. Army Corps of Engineers administers these permits, typically requiring six months or more for processing — a source of frustration for some.

Trump’s team has proposed to repeal a broader definition of “waters of the United States” that the EPA and Army Corps adopted in 2015 under President Barack Obama — one that expanded protection following U.S. Supreme Court decisions in 2001 and 2006 that created confusion. The court ruled that federal authorities could only require permits for pollution and dredging of “navigable waters.” The Obama-era approach, still not implemented due to lawsuits, allows regulation of flowing water, including ephemeral streams, with exemptions for agriculture.

Publication in the federal register on June 27 of the Trump administration’s proposal to repeal and replace clean water standards triggered a 30-day period for public comment. Then the rollback would take effect. However, more than 70 members of Congress last week requested an extension to no less than six months. On Thursday, the League of Conservation Voters and 18 other environment groups sent Pruitt a letter requesting the same.

While Colorado has state-level rules limiting water pollution that still could apply, there is no state rule against dredging and filling that destroys wetlands and streams.

Beer brewers were among the first to object. Eight craft brewers in Colorado, joined by counterparts nationwide, sent a letter to EPA and Army Corps leaders urging maximum protection.

“Beer is mostly water, so the quality of our source water affects our finished product. Even small chemical disruptions in our water supply can alter the taste of a brew or influence factors like shelf life and foam pattern,” they wrote. “We need reliable sources of clean water to consistently produce the great beer that is key to our success.”

In western Colorado, a growing reliance on pristine water for the economy — depending more on recreation and tourism — compelled concern. The fuzzy meaning of “waters of the United States” and delays issuing federal permits are a problem, many agree, and local officials would welcome greater clarity, said Torie Jarvis, co-director of the Water Quantity and Quality Committee (QQ) of the Northwest Colorado Council of Governments. But most favor greater protection, not less.

“While QQ supports increased clarity for the definition of ‘waters of the United States,’ this clarity should not mean reduced water quality protection under the Clean Water Act,” Jarvis and the other local leaders told EPA officials June 19, after the feds had asked for input for their proposed repeal and overhaul of clean water rules.

“Water quality in the headwaters of Colorado is critically important for our regional tourism economy as much as for environmental protection. Tourism is the largest employment sector in the headwaters region, comprising 48 percent of all jobs,” local officials wrote. “Tourism in the region includes fishing, hunting, kayaking, rafting, wading, lake and reservoir recreation, wildlife watching, hiking, and snowmaking for ski resorts, all of which depend on clean water.”

Some local officials reckon they could protect cherished watersheds on their own, without robust federal clean water rules, by using their power to regulate land use.

Environment groups last week argued that a federal role is necessary to buttress local power.

“Local governments may be able to control some impacts based on conditions they might impose on developments, but they do not have a statutory obligation to do so — so the ability to protect these important resources ends up relying on their level of commitment to protecting water quality, and their ability to have the expertise and resources to do so, which for smaller local governments can be a real limitation,” Colorado Trout Unlimited director David Nickum said.

“Our main practical concern with the change in these federal standards is that we would lose the protection for seasonal streams and for wetlands from being dredged or filled in — protection that currently is provided. … Allowing those areas to be degraded will in turn have ripple effects downstream onto our drinking water supplies and our important fishing and recreation rivers,” Nickum said.

“Colorado’s outdoor economy and quality of life depend on healthy, clean watersheds, and anglers know that starts at the source: the small, unassuming streams, headwaters and wetlands that rescinding the Clean Water Rule puts at risk,” he said.

“President Trump promised to drain the swamp. Instead, this EPA proposal aims to drain our wetlands and pollute our streams,” he said. “Coloradans deserve better.”

Environmental policy in the current administration

Science Senator. It’s called science.

You owe it to yourself to come up to speed about the rollback of environmental protections over the first 6 months of the new administration. Focus on the protection of the water supply, then contact your elected officials about the problem. Water is a great way to find common ground with folks. It’s more important than ever to support the role of local and state government in regulating air and water pollution.

Here’s a list of changes in policy from Mother Jones:

Timeline of the rollbacks

14 February Trump signs a bill repealing an anti-corruption rule that required energy companies to disclose payments to foreign governments. The regulation was scrapped under the Congressional Review Act.

16 February The stream protection rule, which prevented mining companies dumping their waste into streams, is axed under the Congressional Review Act. Trump calls it a “terrible job-killing rule.”

28 February Trump instructs the EPA to rewrite the ‘waters of the United States’ rule, which expanded the definition of the Clean Water Act to protect the water supply for around 117 million Americans. Many farmers, real estate developers and golf course owners opposed the rule.

2 March On 1 March, governors and attorneys general from several Republican-led states write to Scott Pruitt to request the EPA stop collecting methane emissions data from around 15,000 oil and gas operations. A day later, Pruitt says he has decided to oblige “after hearing from industry.”

15 March Trump announces a review of vehicle fuel efficiency standards that are designed to push down greenhouse gases and other pollutants. More than a dozen car company chief executives asked the president to revisit an Obama-era decision to mandate improved fuel economy by 2025. Pruitt calls the standards “costly for automakers and the American people.”

28 March A sweeping executive order penned by Trump orders a rewrite of the EPA’s clean power plan, which was Obama’s centerpiece climate policy, an end to the moratorium on coal mining on public land and the removal of climate change as a consideration when approving federal projects.

29 March Pruitt denies a bid to halt the use of chlorpyrifos, a widely used pesticide. The chemical has been linked to damage to the nervous system and last year EPA scientists said a ban was warranted. Household use of the chemical was phased out a decade ago but it is still used in farms across the US.

11 April A court grants an EPA request to delay the implementation of ozone pollution standards that were made stricter in 2015. The EPA intends to review the rules around ozone, which is created when sunlight reacts with pollutants from vehicles exhausts and other sources. Ozone can create smogs and can trigger a raft of health ailments, especially among children, the elderly and those with respiratory problems.

13 April The EPA pauses a regulation that curbs the dumping of toxic metals such as arsenic and mercury by power plants into public waterways. The Obama-era rule, set to commence in 2018, would’ve destroyed jobs, according to Pruitt.

27 April The EPA successfully convinces a US appeals court to halt a challenge by states and industry groups to an Obama administration rule aimed at reducing toxic emissions from power stations. Pruitt, in his previous role as attorney general of Oklahoma, had sued the EPA to stop the rule, which is known as MATS.

23 May A three-month pause is put on landfill methane rules so they EPA can “reconsider certain aspects” of the regulation. Methane is a powerful greenhouse gas and is emitted from rotting garbage in landfills, as well as other sources such as agriculture.

13 June The EPA announces plans for a two-year pause on regulations that would reduce emissions leaks from oil and gas operators. The regulator acknowledges that pollution from the leaks results in “disproportionate” harm to children but proposes to go ahead with the suspension of the rule anyway.

27 June The EPA, along with the US army, proposes to scrap the clean water rule. This would reverse an Obama-era move that expanded federal government protections to the drinking water of around a third of all Americans. Pruitt said the rollback will provide “regulatory certainty to our nation’s farmers and businesses.” The announcement didn’t reference public health.

US Supreme Court declines to hear #GoldKingMine lawsuit, #NM v. #Colorado

This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]

From The Naitional Law Review:

On June 26, the US Supreme Court denied New Mexico’s petition seeking to institute an original action against Colorado for the 2015 Gold King Mine spill. An original action in the US Supreme Court is a lawsuit between states. Invoking that rarely used procedure, New Mexico sought to hold Colorado liable for the Gold King Mine spill. New Mexico asserted claims under the intricate provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Resource Conservation and Recovery Act of 1976 (RCRA). New Mexico also sought analogous relief against Colorado under federal interstate common law.

Attorneys assisting the State of Colorado, successfully argued that the US Supreme Court should not entertain New Mexico’s novel lawsuit. As explained in Colorado’s briefing, New Mexico’s RCRA claim failed because a CERCLA response action had been initiated to address the relevant hazardous substance release. New Mexico’s CERCLA claim failed, Colorado argued, for a number of reasons, including that once a site is under investigation under CERCLA authority, several of New Mexico’s claims are barred because they would interfere with the CERCLA investigation and remedy decision making. Colorado additionally argued that Congress displaced New Mexico’s putative federal common law claims through its enactment of comprehensive environmental statutes, most importantly the Clean Water Act, but also CERCLA and RCRA. Finally, Colorado’s briefing also explained that Colorado should not be held liable for its regulatory activities in remediating and managing abandoned mines…

Colorado’s victory at the US Supreme Court protects Congress’s carefully constructed statutory scheme for the effective management and remediation of water pollution across the country. It also protects Colorado’s sovereign ability to remediate abandoned mines.

On April 7, 2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear.
Eric Baker

The path to a new @EPA #CleanWaterRule will be through the courts

Photo via Greag Hobbs March 29, 2015.

Scott Pruitt now faces an uncertain outcome in the courts. Here’s a report from Patrick Parenteau (Vermont Law School) writing for The Conversation. Here’s an excerpt:

EPA developed the Clean Water Rule in an attempt to resolve uncertainty created by a fractured 2006 Supreme Court decision, Rapanos v. United States. The Rapanos ruling caused widespread confusion about which waters were covered [Click through for the Reagan Waskom and David J. Cooper explainer about Ag and the rule], creating uncertainty for farmers, developers and conservation groups. Efforts to clarify it through informal guidance or congressional action had failed, and EPA acted under mounting pressure from various quarters, including some members of the court.

As Oklahoma’s attorney general, Pruitt unsuccessfully sued to kill the rule, which he has called “the greatest blow to private property rights the modern era has seen.” Now he is seeking to accomplish by administrative fiat what he failed to achieve in court. However, he faces a stiff challenge from supporters of the rule, and the courts may not buy his arguments for wiping a rule off the books.

Under the Administrative Procedure Act, federal agencies must follow specific steps when they seek to establish or repeal a regulation. These procedures are meant to establish efficiency, consistency and accountability. To promote fairness and transparency, the law requires that the public must have meaningful opportunity to comment on proposed rules before they take effect.

The Clean Water Rule emerged from an extensive rule-making process that featured over 400 meetings with state, tribal and local officials and numerous stakeholders representing business, environmental and public health organizations. It generated over one million comments, the bulk of which supported the rule.

This process was preceded by a comprehensive peer-reviewed scientific assessment that synthesized over a thousand studies documenting the importance of small streams and wetlands to the health of large rivers, lakes and estuaries. According to a 2015 fact sheet, which has been scrubbed from EPA’s website but is archived here, the rule protects streams that roughly one in three Americans depend upon for their drinking water.

To undo the Clean Water Rule, EPA will have to go through the same notice-and-comment process. Pruitt’s proposal to rescind the rule will be published in the Federal Register sometime in the near future. From that date, the public will have just 30 days to file written comments electronically. (Normally public comment periods last for 60 days, and the Clean Water Rule was open for comment for 120 days.)

[…]

EPA must then review and respond to the comments, make any changes it deems necessary and publish a final rule. Parties with standing can then challenge the final rule, although there is a question as to which court will have jurisdiction to hear them. The Supreme Court is scheduled to hear arguments on this issue in the fall. In weighing challenges, the key question the court must address is whether EPA’s action is “arbitrary and capricious,” meaning that the agency has failed to consider important aspects of the problem or explain its reasoning.

In a seminal 1983 decision, the Supreme Court ruled that an agency must supply a “reasoned analysis” when it rescinds a rule adopted by a previous administration. The court acknowledged that agencies have some discretion to change direction in response to changing circumstances. However, it noted that “the forces of change do not always or necessarily point in the direction of deregulation.” Further, the court said that a decision to rescind a rule would be arbitrary and capricious if it offers an explanation “that runs counter to the evidence before the agency.”

Pruitt asserts that his repeal “need not be based upon a change of facts or circumstances,” citing a 2009 opinion by Justice Antonin Scalia. But in my view, Pruitt reads too much into that decision, which simply held that an agency did not face “heightened scrutiny” – that is, an extra-high bar – when changing policy, but must still “show that there are good reasons for the new policy.” As Justice Breyer observed, dissenting in the same case, “Where does, and why would, the Administrative Procedure Act grant agencies the freedom to change major policies on the basis of nothing more than political considerations or even personal whim?”

Drinking water at risk with new @EPA proposals #WOTUS

Middle Dutch Creek near the Grand River Ditch. Photo credit Greg Hobbs.

From The Colorado Connection (Josephine Peterson) via The Durango Herald:

The American public will have 30 days to comment on the Trump administration’s plan to repeal and replace the 2015 Clean Water Rule, once it’s published in the Federal Register.

Jan Goldman-Carter, wetlands and water resources director for the National Wildlife Federation, said the move would remove pollution limits from streams and wetlands that supply a third of the nation’s drinking water and which also are home to countless fish and wildlife species.

“The American public has long thought – since the 1972 act – that their water is protected, their wetlands are protected, their streams are protected from pollution,” she said. “None of us can really take that for granted anymore.”

The Clean Water Rule restored protections under the Clean Water Act for headwaters, streams and wetland habitat that had been left uncertain because of convoluted U.S. Supreme Court rulings. Current Environmental Protection Agency Administrator Scott Pruitt has argued that rolling back the measure will provide certainty to farmers and other businesses by returning regulatory authority to states.

Carter said western states rely on clean water to fuel their multi-billion-dollar outdoor recreation industries. She pointed to polls that show nearly 80 percent of hunters and anglers favor Clean Water Act protections. Dozens of craft brewers also have come out in support of the 2015 measure. Carter said a majority of the nation’s stream miles and wetland acres are at stake…

But some Colorado legislators see the beginning of the process to rollback this rule as a victory for private water rights.

Sen. Cory Gardner, R-Colo., called the withdraw of this rule as “a victory for agriculture, rural communities, and all Coloradans.”

[…]

Gardner has been a consistent opponent of the administrative rule from the beginning.

Rep. Scott Tipton, R-Cortez, said he also welcomed the news and that the rule was a threat to private water rights…

Samantha Slater, a spokeswoman for Sen. Michael Bennet, D-Colo., said the senator is opposed to the rule’s full appeal, and wants only what is best for the state.

According to the Environment America Research and Policy Center, the Clean Water Rule, supported by more than 80 percent of small-business owners, was expected to generate more than $400 million annually in economic benefits. Public comments can be submitted at http://www.regulations.gov.

The EPA plan is online at epa.gov/wotus-rule, and the Environment America brief is at environmentamericacenter.org.