The Water Values Podcast: Current Issues with the Clean Water Act with Mark Ryan

screen-shot-2017-02-21-at-11-23-40-am

Click here to listen to the podcast. (via David McGimpsey)

Mark Ryan, a former top US EPA attorney now in private practice, joins The Water Values Podcast and provides an insider’s view on the Clean Water Act and several important developments affecting the Clean Water Act. Apart from his outstanding analysis of three pending cases (Waters of the U.S. Rule, Water Transfer Rule, and Des Moines), Mark also fills us in on some general administrative law issues (the Regulatory Accountability Act of 2017) and his thoughts on how the Trump administration might handle these issues.

In this session, you’ll learn about:

  • The history of the Clean Water Act
  • What limnology is
  • What the purpose of the Clean Water Act is
  • How the Clean Water Act is administered
  • The five-part test for Clean Water Act applicability
  • How the Clean Water Act has evolved from 1972 to present
  • The Waters of the U.S. Rule & related litigation
  • The Water Transfer Rule case
  • The Des Moines drainage tile point source case
  • What “point source” means
  • #Colorado Springs responds to @EPA/CDPHE lawsuit

    From The Pueblo Chieftain (Robert Boczkiewicz):

    The city’s denial is its first response in court to a lawsuit that claims discharges of pollutants into Fountain Creek and other tributaries violate the laws. The discharges are from Colorado Springs’ stormwater system…

    Colorado Springs asserted in Monday’s filing that it “has at all times been in compliance” with permits issued by the state agency to govern the discharges and the stormwater system.

    The city contends it should not be subjected to court orders or monetary penalties that the environmental agencies want a judge to impose.

    Colorado Springs also contends that allegations in the lawsuit misrepresent the facts of issues in dispute.

    Colorado Springs with the Front Range in background. Photo credit Wikipedia.
    Colorado Springs with the Front Range in background. Photo credit Wikipedia.

    Second Circuit: Water transfer ruling in favor of EPA’s rule that trans-basin diversions do not require a federal NPDES permit under the CWA

    newyorcitywatersupplysystem

    From email from Greg Hobbs:

    [Here] is the Second Circuit’s water transfer ruling issued [January 18, 2017] in favor of EPA’s rule that trans-basin diversions do not require a federal NPDES permit under the Clean Water Act..

    Colorado has long taken the position that trans-basin diversions do not require such a permit.

    Click here to read the decision.

    Fountain Creek: Pueblo County and Lower Ark join @EPA/CDPHE lawsuit

    From The Colorado Springs Gazette (Billie Stanton Anleu):

    Pueblo County commissioners and the Lower Arkansas Valley Water Conservancy District can intervene in the suit, U.S. District Judge Richard P. Matsch ruled Thursday.

    A year ago, Pueblo County commissioners signed off on an intergovernmental stormwater agreement with Colorado Springs, ensuring that the city will spend $460 million over 20 years to provide 71 stormwater projects aimed at minimizing Fountain Creek’s effects on downstream communities.

    The creek flows downstream carrying excess sedimentation, E. coli contamination and other pollution, claims the Lower Ark, which represents the largely agricultural areas of Bent, Crowley, Otero, Prowers and Pueblo counties.

    County officials have echoed those concerns.

    And the EPA, after conducting audits in 2013 and 2015 of the city’s stormwater system, found that the creek and its tributaries were eroded and widened, their waters combining with surface runoff to create excessive sedimentation and substandard water quality.

    Federal officials upbraided the city for not demanding enough infrastructure from developers and for not maintaining the culverts and creeks snaking through the city.

    The lawsuit, filed by the U.S. Department of Justice on the EPA’s behalf, and by the Colorado Department of Public Health and Environment, is a serious concern for Mayor John Suthers, who has made the city’s long-neglected stormwater infrastructure a top priority.

    In addition to the agreement with Pueblo County, he has more than doubled the stormwater division’s staff, added a new manager and overseen the Nov. 2 release of an inch-thick Stormwater Program Implementation Plan.

    The EPA and state filed suit one week later, on Nov. 9.

    From The Pueblo Chieftain (Anthony A. Mestas):

    Pueblo County was granted a motion Thursday that allows the county to join in a federal/state lawsuit against the city of Colorado Springs.

    The Lower Arkansas Valley Water Conservancy District also was allowed to join the case as an intervenor to protect the district’s interest during the litigation…

    Pueblo County filed the motion to intervene last week. The lawsuit was filed Nov. 9 in U.S. District Court in Denver by the Environmental Protection Agency and the Colorado Department of Public Health and Environment against Colorado Springs.

    The Lower Ark district filed the same motion in November.

    The lawsuit claims there is harm caused by discharges of pollutants down Fountain Creek into Pueblo and east to the Arkansas River’s other tributaries.

    It also claims the city of Colorado Springs made numerous violations of their Municipal Separate Storm Sewer System permit issued by the state.

    Alleged violations by Colorado Springs include the failure to adequately fund its stormwater management program, to properly maintain its stormwater facilities and to reduce the discharge of pollutants to the maximum extent practicable.

    Hart and fellow Commissioners Sal Pace and Garrison Ortiz have said they cherish the relationship the county has developed with Colorado Springs through negotiations over the Southern Delivery System’s 1041 permit agreement and hope this will not do anything to damage it.

    The Fountain Creek Watershed is located along the central front range of Colorado. It is a 927-square mile watershed that drains south into the Arkansas River at Pueblo. The watershed is bordered by the Palmer Divide to the north, Pikes Peak to the west, and a minor divide 20 miles east of Colorado Springs. Map via the Fountain Creek Watershed Flood Control and Greenway District.
    The Fountain Creek Watershed is located along the central front range of Colorado. It is a 927-square mile watershed that drains south into the Arkansas River at Pueblo. The watershed is bordered by the Palmer Divide to the north, Pikes Peak to the west, and a minor divide 20 miles east of Colorado Springs. Map via the Fountain Creek Watershed Flood Control and Greenway District.

    Fountain Creek: Pueblo County commissioners approve county joining @EPA, CDPHE lawsuit

    Fountain Creek erosion via The Pueblo Chieftain
    Fountain Creek erosion via The Pueblo Chieftain

    From The Pueblo Chieftain (Anthony A. Mestas):

    The Pueblo County commissioners on Wednesday asked staff to file a motion to intervene in a lawsuit filed Nov. 9 in U.S. District Court in Denver by the Environmental Protection Agency and the Colorado Department of Public Health and Environment against Colorado Springs.

    Pueblo County wants to join the case to protect its interest during the litigation.

    “We did it primarily to make sure we have a seat at the table,” said Pueblo County Commission Chairman Terry Hart.

    “It’s one of those issues that whenever any kind of conversation is going on that concerns Fountain Creek or the water volume or quality that’s in the creek, we feel it affects the citizens in our community.”

    […]

    By intervening in the lawsuit Pueblo County hopes to:

    Support the EPA and CDPHE in its regulatory mission.

    Ensure that stormwater control infrastructure within Colorado Springs is properly operated and maintained.

    Ensure that there are no conflicts or inconsistencies between the stormwater intergovernmental agreement recently entered by the county and Colorado Springs and any remedy, judgment or settlement entered in this case.

    Require Colorado Springs to become, and then remain, compliant with the Clean Water Act, the Colorado Water Quality Control Act, stormwater regulations and the conditions of Colorado Springs’ MS4 permit, and protect against future violations.

    Work with Colorado Springs to develop, implement and enforce its’ Stormwater Management Program as required by the MS4 permit.

    Prohibit Colorado Springs from discharging stormwater that is not in compliance with its MS4 permit or its SMP.

    #Animas River: Feds seek dismissal of #NM and Navajo Nation #GoldKingMine lawsuits

    The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)
    The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)

    From the Associated Press (Susan Montoya Bryan) via The Durango Herald:

    The Justice Department filed its motion Monday, following up on arguments first made by the Obama administration that the U.S. Environmental Protection Agency is protected by sovereign immunity.

    The federal government contends the agency doesn’t fit the definition of a liable party.

    New Mexico was first to sue over the mine spill, alleging that the agency had not taken full responsibility for triggering the spill of 3 million gallons of toxic wastewater from the mine near Silverton. The plume coursed through the Animas and San Juan rivers in Colorado, New Mexico and Utah.

    New Mexico officials say the government’s motion was expected.

    Fountain Creek: Pueblo County Commissioners direct staff to draft motion to join @EPA, CDPHE lawsuit

    Fountain Creek swollen by stormwater November 2011 via The Pueblo Chieftain
    Fountain Creek swollen by stormwater November 2011 via The Pueblo Chieftain

    From The Colorado Springs Gazette (Billie Stanton Anleu):

    Pueblo County – having already received a commitment of $460 million in stormwater projects from Colorado Springs over 20 years – now wants to join in a federal and state lawsuit citing Colorado Springs for violating its federal stormwater permit…

    Wednesday, Pueblo County commissioners decided to try to join in the lawsuit, following a December effort by the Lower Arkansas Valley Water Conservancy District to also become a plaintiff. The motion to include the Lower Ark, as it is known, hasn’t been decided.

    The Lower Ark, representing Bent, Crowley, Otero, Prowers and Pueblo counties, has seen Colorado Springs break stormwater promises repeatedly, said district Executive Director Jay Winner.

    Pueblo County commissioners echoed such complaints, saying the city doesn’t adequately fund its stormwater management program, maintain the infrastructure or reduce discharge of pollutants.

    In addition to the $460 million stormwater pact, the city has increased stormwater funding to $19 million a year, including $3 million from Colorado Springs Utilities. That’s up from $5 million in 2015.

    Pueblo County and Lower Ark both cite increased E. coli levels, erosion, sedimentation and flooding.

    The county’s action was another blow for Mayor John Suthers, who has committed to rectifying the city’s stormwater problems since he took office in June 2015…

    Said Pueblo County Commission spokeswoman Paris Carmichael: “This isn’t about picking a fight with Colorado Springs. This is about giving the citizens of Pueblo County a voice.”

    The county had threatened last year to withhold a permit essential for completion of the $825 million Southern Delivery System, a massive water project delivering Arkansas River water to Colorado Springs, Security, Fountain and Pueblo West.

    So Suthers and other city officials worked with Pueblo city and county officials to hammer out the $460 million intergovernmental agreement, which facilitated release of the permit.

    Meanwhile, Suthers also got to work reorganizing the city’s Stormwater Division, bringing in new director Richard Mulledy, who had worked in Pueblo; ratcheting up its staff from 28 to an eventual 66; and releasing an inch-thick new Stormwater Program Implementation Plan on Nov. 2, one week before the EPA filed suit.

    The mayor now is asking voters to approve an April 4 ballot measure that would let the city retain $6 million in excess sales tax revenues to further improve the stormwater system. The city’s extra tax money is expected to top out at $9 million or more, with any amount above the $6 million request being refunded to residents if the ballot issue passes.

    From The Pueblo Chieftain (Anthony A. Mestas):

    The Pueblo County commissioners on Wednesday asked staff to file a motion to intervene in a lawsuit filed Nov. 9 in U.S. District Court in Denver by the Environmental Protection Agency and the Colorado Department of Public Health and Environment against Colorado Springs.

    Pueblo County wants to join the case to protect its interest during the litigation.

    “We did it primarily to make sure we have a seat at the table,” said Pueblo County Commission Chairman Terry Hart.

    “It’s one of those issues that whenever any kind of conversation is going on that concerns Fountain Creek or the water volume or quality that’s in the creek, we feel it affects the citizens in our community.”

    […]

    Hart and fellow Commissioners Sal Pace and Garrison Ortiz said although there are pros and cons in entering the lawsuit, representing Pueblo County citizens is the most important issue.

    “I feel that we have an obligation as a board, as elected officials and as leaders in Pueblo County to ensure that we are doing absolutely everything we can to protect our infrastructure, quality of water and the health and welfare of our citizens,” Ortiz said.

    Pace said he greatly cherishes the relationship the county has developed with Colorado Springs through negotiations over the Southern Delivery System’s 1041 permit agreement and hopes this will not do anything to damage it…

    Suthers’ office issued a statement from the mayor when contacted Wednesday.

    “In light of the fact that Pueblo County is well aware of the outstanding stormwater program Colorado Springs is putting together and that we are meeting and exceeding our commitments under the intergovernmental agreement between our entities, I am very disappointed in their decision to seek to intervene in the EPA lawsuit. Intervention by parties without regulatory authority will only serve to make the litigation more complex, more lengthy, more expensive for all parties and possibly more unproductive.”

    […]

    The Lower Arkansas Valley Water Conservancy District also wants to join the case as an intervenor to protect the district’s interest during the litigation.

    The district filed the same motion in November. A federal judge has yet to make a decision on if the district can join the suit…

    Pueblo City Council President Steve Nawrocki said the city manager will ask Council on Monday to give him direction on the issue…

    WHAT IT MEANS

    By intervening in the lawsuit Pueblo County hopes to:

    Support the EPA and CDPHE in its regulatory mission.

    Ensure that stormwater control infrastructure within Colorado Springs is properly operated and maintained.

    Ensure that there are no conflicts or inconsistencies between the stormwater intergovernmental agreement recently entered by the county and Colorado Springs and any remedy, judgment or settlement entered in this case.

    Require Colorado Springs to become, and then remain, compliant with the Clean Water Act, the Colorado Water Quality Control Act, stormwater regulations and the conditions of Colorado Springs’ MS4 permit, and protect against future violations.

    Work with Colorado Springs to develop, implement and enforce its’ Stormwater Management Program as required by the MS4 permit.

    Prohibit Colorado Springs from discharging stormwater that is not in compliance with its MS4 permit or its SMP.