Here’s the release from the Environmental Protection Agency:
[On April 8, 2021] the U.S. Environmental Protection Agency (EPA) [release] an updated toxicity assessment for perfluorobutane sulfonic acid (PFBS), a member of a larger group of per- and polyfluoroalkyl substances (PFAS). Today’s PFBS assessment is part of EPA’s commitment to restore scientific integrity to all of the agency’s actions and increase the amount of research and information available to the public on PFAS chemicals.
“This PFBS assessment reflects the best available science, involved extensive federal, state, and public engagement, and is critical to EPA efforts to help communities impacted by PFAS,” said senior career scientist Dr. Jennifer Orme-Zavaleta, Acting Assistant Administrator for the Office of Research and Development and the agency’s Science Advisor. “The assessment posted today fixes the errors in the version issued earlier this year, was developed by EPA career scientists, and upholds the values of scientific integrity. I’m proud to release such an important assessment that will help EPA and communities take action to address PFAS and protect public health.”
EPA, federal agencies, states, tribes, and local communities can use the PFBS toxicity assessment, along with specific exposure and other relevant information, to determine if and when it is necessary to take action to address potential health risks associated with human exposures to PFBS under appropriate regulations and statutes.
The assessment released today has gone through all appropriate reviews, includes input EPA received from external peer review, upholds the tenants of scientific integrity, was authored by expert career scientists in EPA’s Office of Research and Development, and has not been compromised by political staff – these were all issues with a version of the assessment that was posted during the previous administration. The release of today’s PFBS assessment upholds the integrity of EPA’s science, which EPA, states, tribes, and more rely on to make decisions that protect the health of their communities.
For the second time in less than a year, state health officials plan to ask lawmakers to fast-track permitting authority over hundreds of miles of streams left unprotected after a 2020 Trump Administration rollback of federal Clean Water Act rules.
The Colorado Department of Public Health and Environment’s move comes just weeks after a federal court denied Colorado’s effort to prevent the new federal rules from taking effect.
The CDPHE is holding work group sessions and seeking public comment on a proposed bill that is likely to be introduced in the next two weeks, officials said. The CDPHE declined to comment for this article.
Last May Colorado Attorney General Phil Weiser sued the U.S. Environmental Protection Agency and won a temporary injunction against the new rules, which would have taken effect in June 2020. But a federal appeals court overturned that decision last month.
As a result, the rules are set to take effect in Colorado April 23. Though many expect the Biden Administration to alter the new rules, once again, state health officials say an interim rule is needed to ensure the state has the permitting authority and the funds needed to protect streams.
Major water interests, such as the nonpartisan Colorado Water Congress, are closely watching the latest legislative effort.
Colorado Water Congress Executive Director Doug Kemper said right now there is too much uncertainty around which streams and which activities will be overseen by federal and state agencies.
“It’s a big deal right now because you don’t really know what activity is covered and what is exempted,” said Kemper. His group has not taken a position on the CDPHE’s initiative, in part because a formal bill has yet to be introduced.
Environmentalists said it’s important that the state moves quickly to assume the permitting authority to protect streams and to allow millions of dollars in construction, dam and road projects to be properly reviewed and permitted.
Industry groups, however, believe new legislation isn’t required right now because the state has some discretion to act already and because the U.S. Army Corps of Engineers, which oversees much of the work on federally protected streams, also has some discretionary authority to review and issue permits.
“We’re concerned that the focus is solely on legislative options,” said John Kolanz, an attorney who represents the Colorado Stone, Sand and Gravel Association. He believes the state could make changes to its own rules, rather than enacting a new law.
“We don’t think it’s advisable to rush through legislation and a complicated rulemaking by the end of the year,” Kolanz said during a public work group meeting hosted by the CDPHE Monday.
Melinda Kassen, general counsel for the Theodore Roosevelt Conservation Partnership who tracks water quality regulation, disagreed, saying the CDPHE must be given new legal authority quickly in order to adequately monitor and fund stream protection work over the next one to two years.
“The biggest part of this legislation is getting some fees so that the [Colorado Water Quality Control] division can do its job and go out and see what’s happening on the ground,” Kassen said Monday.
At issue is what’s known as the Waters of the U.S. (WOTUS) rule. The rule was designed to classify which streams are subject to federal rules and which activities must obtain permits from the Army Corps to ensure those streams are protected even when they are disturbed by home and road building, construction of new storm water systems, and other activities.
But WOTUS has been contested in courts for years over murky definitions about which waterways fall under its jurisdiction, which wetlands must be regulated, what kinds of dredge-and-fill work in waterways should be permitted, what authority the CWA has over activities on farms and Western irrigation ditches, and what is allowable for industries and wastewater treatment plants to discharge into streams.
It has also been difficult to administer because the U.S. is home to such a wide variety of waterways.
In the East and Midwest massive rivers are filled with barge and shipping traffic and are clearly “navigable.” That was the term early courts used to determine how water would be regulated. If a stream was considered navigable, it was subject to federal law.
But Colorado and other Western states rely on shallow streams that don’t carry traditional commercial traffic. The U.S. Geological Survey estimates 44 percent of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24 percent are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32 percent of Colorado streams are classified as being perennial, meaning they flow year round.
Under the new federal rule only perennial and intermittent streams, or those deemed navigable, are regulated, meaning that thousands of miles of streams in Colorado and other Western states are no longer protected under the law.
If the CDPHE’s new legislative effort succeeds, it would give state health officials the authority to issue so-called dredge-and-fill permits on stream segments no longer protected by the federal law.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org or @jerd_smith.
The EPA Office of Water published an advance notice of a proposed rule-making (ANPRM) under the Clean Water Act (CWA) that could lead to development of effluent limitations guidelines, pretreatment standards, and new source performance standards for PFAS manufacturers, formulators, and other industries being studied by EPA.
In its recent ELG program planning document, EPA described its ongoing Multi-Industry Detailed Study of industrial PFAS use, which focuses on: PFAS manufacturers, pulp and paper manufacturers, textile and carpet manufacturers, metal finishing companies, and commercial airports as industries of interest for potential PFAS discharges, reported The National Law Review.
The ANPRM is open for public comment through May 17, 2021.
There is no approved method for analysis of PFAS compounds in wastewater and EPA is requesting monitoring data that identifies the analytical methods used.
EPA is specifically requesting data about: PFAS in process wastewater, cooling water, contaminated storm water, wastewater from aqueous scrubbers or air pollution control equipment, off-specification products, equipment cleaning wastewater, and spills and leaks from manufacturing or formulating entities.
In addition to wastewater characterization data, EPA will also seek information and data for potential treatment technologies, reported The National Law Review.
The Senate on Wednesday confirmed Michael S. Regan, the former top environmental regulator for North Carolina, to lead the Environmental Protection Agency and drive some of the Biden administration’s biggest climate and regulatory policies.
As administrator, Mr. Regan, who began his career at the E.P.A. and worked in environmental and renewable energy advocacy before becoming secretary of North Carolina’s Department of Environmental Quality, will be tasked to rebuild an agency that lost thousands of employees under the Trump administration. Political appointees under Donald J. Trump spent the past four years unwinding dozens of clean air and water protections, while rolling back all of the Obama administration’s major climate rules.
Central to Mr. Regan’s mission will be putting forward aggressive new regulations to meet President Biden’s pledge of eliminating fossil fuel emissions from the electric power sector by 2035, significantly reducing emissions from automobiles and preparing the United States to emit no net carbon pollution by the middle of the century. Several proposed regulations are already being prepared, administration officials have said.
His nomination was approved by a vote of 66-34, with all Democrats and 16 Republicans voting in favor..
Mr. Regan will be the first Black man to serve as E.P.A. administrator. At 44, he will also be one of Mr. Biden’s youngest cabinet secretaries and will have to navigate a crowded field of older, more seasoned Washington veterans already installed in key environmental positions — particularly Gina McCarthy, who formerly held Mr. Regan’s job and is the head of a new White House climate policy office…
But most of the opposition centered on Democratic policy. Senator Mitch McConnell of Kentucky, the Republican leader, called Mr. Biden’s agenda a “left-wing war on American energy.”
“Mr. Regan has plenty of experience,” Senator McConnell said. “The problem is what he’s poised to do with it.”
In his testimony before the Senate last month Mr. Regan assured lawmakers that when it comes to E.P.A. policies, “I will be leading and making those decisions, and I will be accepting accountability for those decisions.”
Mr. Regan has a reputation as a consensus-builder who works well with lawmakers from both parties. North Carolina’s two Republican senators, Thom Tillis and Richard Burr voted to support his nomination. Even Senate Republicans who voted against him had kind words.
Denver drainage carries contaminants into waterways at levels up to 137 times higher than federal safety limit
Colorado health officials this week declared water quality in the South Platte River as it flows through Denver highly deficient, pointing to E.coli contamination at levels up to 137 times higher than a federal safety limit.
This intestinal bacteria indicates fecal matter and other pollution from runoff after melting snow and rain sweeps Denver pollution through drainage pipes into the river. To deal with the problem, the Colorado Department of Public Health and the Environment has imposed, in a permit taking effect next month, stricter requirements for managing runoff water pollution.
But Denver officials are fighting those requirements and twice petitioned the state health department to relax the new permit.
“What the new requirements do is drastically increase the amount of expensive system maintenance beyond what could make a meaningful impact on E.coli concentrations,” city spokeswoman Nancy Kuhn said.
Colorado public health officials last month rejected Denver’s latest appeal. They issued a statement standing by their demands for the city to reduce its water pollution, saying the agency hopes to avoid litigation.
A more aggressive approach is required, state health officials said in the statement, “because the South Platte remains in bad shape for pathogens.”
Denver officials told The Denver Post on Wednesday “no lawsuit has been filed” challenging the permit in state court and that they are “having conversations with the state on five or so new requirements with the hope of reaching compromise.”
“Denver’s storm sewer system is a clear part of the problem,” CDPHE permitting officials said in an email. When inspectors in 2019 sampled water flowing out of city drainage “outfall” pipes into the South Platte, they detected E.coli at levels as high as 1,970 cfu from one pipe and 8,400 cfu from another, state data shows…
“Denver has never opposed the numeric limit of 126 cfu per 100 milliliters,” [Nancy Kuhn] said, but opposes “the specific measures that CDPHE is mandating to achieve that limit.”
A consultant analyzing Denver stormwater runoff in 2018 proposed, in a document included in a 419-page state fact sheet accompanying the new permit, a comprehensive effort to slow down drainage flows, treating runoff water as a useful resource for re-greening in a semi-arid area. He recommended wide use of low-cost measures such as flattening crowned streets, installing small dams in alleys to re-direct culvert-bound gushing runoff, and converting sidewalks to “semi-pervious” surfaces that let water sink between stones into the soil.
Denver’s population growth and development boom have worked against greening to improve water quality. Developers have paved over more surfaces, leaving Denver as one of the nation’s most paved-over cities — especially in newly developed areas — sluicing away runoff water at high velocity without removing contaminants.
Denver officials directed contractors at the city’s new Globeville Landing outfall drainage pipe, in a park built over a former toxic dump site, to install an ultraviolet light. This light, city officials say, zaps away more than 90% of E.coli before runoff water reaches the river.
Wild animals such as raccoons in storm sewers add to the fecal pollution contaminating runoff, Kuhn said, and “dog waste that people don’t pick up is a huge problem and a significant source of E.coli.”
On March 2, 2021, the Tenth Circuit Court of Appeals reversed a ruling from the United States District Court for the District of Colorado in the case of Colorado v. EPA, et al., Nos. 20-1238, 20-1262, and 20-1263, that had issued a preliminary injunction blocking implementation of the Trump Administration’s Navigable Waters Protection Rule (“NWPR”) in the State of Colorado. Under the Tenth Circuit ruling, the NWPR was put back into force, and the State of Colorado’s case was remanded back to district court for further proceedings challenging the rule…
A number of lawsuits were filed challenging the NWPR, including Colorado v. EPA. The Colorado case was significant because Colorado sought, and was granted, a preliminary injunction blocking implementation of the NWPR in the State of Colorado. The State had argued that by reducing the reach of the Clean Water Act, the NWPR caused irreparable injury to the State because Colorado would be forced to undertake additional enforcement actions in place of the federal government to protect the quality of its waterways. While the district court had found this to be sufficient injury to support the State’s preliminary injunction, the Tenth Circuit found that it was too speculative and uncertain. Thus, the preliminary injunction was rejected and reversed because the State of Colorado could not show irreparable injury. Notably, the Tenth Circuit did not address the merits of the State’s challenge to the NWPR.
Additionally, prior to the Tenth Circuit’s ruling, EPA and the Army Corps of Engineers had requested the court hold the appeal in abeyance for 60 days in light of the new leadership at the agencies following the election of President Biden. The court denied the request and issued its ruling lifting the preliminary injunction the following day. The Biden Administration has indicated it is reviewing the NWPR and may want to make changes to broaden the definition of “Waters of the United States” once again. If that is the case, the agencies may look to settle the Colorado case and other similar litigation with a promise of changes to come.
By summer, fields of peonies, dahlias, sunflowers, zinnias, cosmos and some 40 other varieties of flowers will shimmer in the sun and bend in the breeze.
A pergola will become a cut-flower processing center. An old tuberculosis hut will be transformed into a flower stand.
The renovated barn will host weddings and community events, the empty pig pen will be converted into bachelor’s quarters and the former chicken coop will serve as an outdoor reception area…
Children will be able to pick a Pueblo-grown pumpkin during a fall festival, with hayrides and activities planned for every Friday, Saturday and Sunday in October.
“This is one of those places that people have good memories, and that’s one of the things that’s driving my desire to be involved — for people to be in the moment and make memories again,” said Nikki McComsey, owner of Gather Mountain Blooms.
McComsey is leasing a portion of the farm and managing the property, which in the 1930s was bought by the family of the late Nick and Bambi Venetucci and now is overseen by two local philanthropic foundations.
The aged fields, where thousands of pumpkins that were given away grew plump, beans and peas could be plucked from the vine and immediately savored, and grass-fed cows, pastured pigs and productive hens roamed, have lain barren for nearly five years.
Unforeseen contamination of the Widefield aquifer, which was saturated with perfluorinated compounds originating from firefighting foam used at Peterson Air Force Base, forced the farm to stop selling edible goods in 2016.
Revenue dried up along with the plants…
The farm’s primary source of income had been selling water from four of its seven wells to the Fountain Valley’s three water districts, said Samuel Clark, executive director of Pikes Peak Real Estate Foundation.
Water leasing netted the farm $260,000 in 2016, Clark said.
Lost revenue from produce and other consumables sold at farmers’ markets ranged from $30,000 to $190,000 annually, he said.
But the farm is poised to become bountiful once again.
After years of working with the Air Force and area water districts, Venetucci’s wells this week were connected to a new filtration system rendering water from the aquifer safe to use, according to Roy Heald, general manager of Security Water and Sanitation District.
Here’s an in-depth report from Emily Holden, Caty Enders, Niko Kommenda, and Vivian Ho that’s running in The Guardian. Click through and read the whole article and to check out the story map detailing the problem. Here’s an excerpt:
Millions of people in the US are drinking water that fails to meet federal health standards, including by violating limits for dangerous contaminants.
Latinos are disproportionately exposed, according to the Guardian’s review of more than 140,000 public water systems across the US and county-level demographic data.
Water systems in counties that are 25% or more Latino are violating drinking water contamination rules at twice the rate of those in the rest of the country.
America’s worst public water systems – those that have accrued more than 15 “violation points” for breaking standards over five years – serve more than 25m Americans, the research shows. An estimated 5.8m of these are Latino.
Texas, where millions of residents lost access to water and power during the recent storm, has the most high-violation systems, followed by California and Oklahoma. The average number of violations is highest in Oklahoma, West Virginia and New Mexico.
The six-month investigation of five years of Environmental Protection Agency (EPA) and other data also shows how:
Access to clean drinking water is highly unequal in the US, based on race, income and geography
Poorer counties have more than twice as many violation points as wealthy ones
Some water systems report hundreds of violation points year after year without any action from the government and without being required to notify customers
Rural counties have 28% more violation points than metropolitan ones
Scientists and former government officials describe a water regulation system that is broken. “Most policymakers believe compliance with environmental rules is high,” said Cynthia Giles, the former head of enforcement at the EPA under Barack Obama, but that belief was “wrong”.
Experts are most concerned about systems serving smaller communities. They say Latinos are particularly at risk because they often live near industrial farms in California and the west that have polluted local water with nitrates in runoff from fertilizers and manure. They are also more likely to live in the south-west, where arsenic violations are common.
FromThe Associated Press (Susan Montoya Bryan) via The Colorado Sun:
Under the settlement with the Navajo Nation, Sunnyside Gold Corp. — a subsidiary of Canada’s Kinross Gold — will pay the tribe $10 million
The Navajo Nation’s Department of Justice announced Wednesday it has settled with mining companies to resolve claims stemming from a 2015 spill that resulted in rivers in three western states being fouled with a bright-yellow plume of arsenic, lead and other heavy metals.
Under the settlement with the Navajo Nation, Sunnyside Gold Corp. — a subsidiary of Canada’s Kinross Gold — will pay the tribe $10 million…
The tribe said the toxic water coursed through 200 miles (322 kilometers) of river on Navajo lands…
The tribe’s claims against the EPA and its contractors remain pending. About 300 individual tribal members also have claims pending as part of a separate lawsuit…
The state of New Mexico also confirmed Wednesday that it has reached a settlement with the mining companies. Under that agreement, $10 million will be paid to New Mexico for environmental response costs and lost tax revenue and $1 million will go to Office of the Natural Resources Trustee for injuries to New Mexico’s natural resources…
The settlement was not an admission of liability or wrongdoing, but Sunnyside agreed to it “as a matter of practicality to eliminate the costs and resources needed to continue to defend against ongoing litigation,” Myers said in an email…
In August, the U.S. government settled a lawsuit brought by the state of Utah for a fraction of what that state was initially seeking in damages.
In that case, the EPA agreed to fund $3 million in Utah clean water projects and spend $220 million of its own money to clean up abandoned mine sites in Colorado and Utah.
After the spill, the EPA designated the Gold King and 47 other mining sites in the area a Superfund cleanup district. The agency still reviewing options for a broader cleanup.
From the Land Desk newsletter (Jonathan Thompson):
Whether the company [Kinross] is at all culpable for the spill is a question the courts have yet to answer. But there is definitely a connection, both hydrological and historical.
Here’s the short(ish) bulleted explanation:
The Gold King Mine workings are on one side of Bonita Peak (in the Cement Creek drainage) and the Sunnyside Mine workings are on the other side of Bonita Peak (in the Eureka Creek drainage). If you look at the two mines in a cross-section of the peak, they sit side-by-side, separated by a lot of rock.
In the early 1900s the owners of the Gold King started drilling the American Tunnel straight into Bonita Peak below the Gold King. The plan was then to link up with the Gold King in order to provide easier access. More than one mile of tunnel was dug, but the link was never completed, prior to the Gold King’s shutdown in the 1920s.
Photographic and other evidence suggests that prior to the construction of the American Tunnel, water drained from the Gold King Mine. However, after the tunnel’s construction the mine was said to be dry, suggesting that the tunnel hijacked the hydrology of the Gold King.
In 1959 Standard Metals continued drilling the American Tunnel through the mountain in order to provide a better access (from the Cement Creek side) to the then-defunct Sunnyside Mine.
After the Sunnyside shut down, the parent company at the time (Echo Bay), reached an agreement with the state to plug the American Tunnel with huge bulkheads to stop or slow acid mine drainage. They placed three bulkheads, one at the edge of the workings of the Sunnyside Mine (1996), one just inside the opening of the American Tunnel (2003), and another in between (2001).
Shortly after the bulkheads were placed, the Gold King ceased being a “dry” mine, and drainage resumed, eventually flowing at more than 250 gallons per minute. After the ceiling of the adit collapsed, water began backing up behind it until it was finally released in one catastrophic swoop in August 2015.
It seems pretty clear that one or more of the bulkheads caused water to back up inside the mountain and enter the Gold King Mine workings, eventually leading to the blowout. At this point, however, no one knows which bulkhead is the culprit, so no one knows whether the water is coming from the Sunnyside mine pool, or whether it is actually coming from the part of the American Tunnel that is still on Gold King property. Until that is determined, the root cause of the Gold King blowout will remain a mystery.
For the longer explanation of the Gold King saga, read my book, River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster. And for more maps showing the relationship between the Sunnyside and the Gold King, check out my River of Lost Souls reading guide.
The water treatment plant, however, is located on a site known as Gladstone, about 8 miles north of Silverton up County Road 110, owned by the same person who owns the Gold King Mine, Todd Hennis.
Hennis, an entrepreneur based in Golden, has long had an interest in the mines that dot the San Juan Mountains around Silverton, and over the years, has been buying up old mine sites with the hopes of revamping the industry…
After the spill, Hennis agreed to let the EPA use the Gladstone property for a temporary water treatment plant, albeit somewhat begrudgingly.
“When the Gold King event happened, I gave the keys to (the EPA) for Gladstone, and said ‘Go ahead, use anything, just return it after you’re done,’” Hennis said in October 2015. “That rapidly changed into having the hell torn out of my land.”
The water treatment plant continues to operate to this day, and is seen by some invested in the cleanup of mines around Silverton as a possible long-term solution to improving water quality in the Animas River.
Since 2015, the EPA has operated on the Gladstone property through a “general access order,” though the agency has not paid Hennis for use of the land, said EPA spokeswoman Katherine Jenkins.
The EPA has, however, worked for years to come to a long-term lease agreement with Hennis that would include payments for use of the land based on fair market value, but those efforts have not been successful.
“Mr. Hennis has declined EPA’s multiple requests for long-term access and has rejected a long-term lease agreement for EPA’s use of the Gladstone property,” Jenkins said.
Because, in part, of the resources and staff time required to send Hennis monthly general access orders, the EPA on Jan. 6 sent him an “administrative order” that requires him to give the EPA full access to the Gladstone property.
An administrative order, according to the EPA website, is an enforcement tool under the Superfund program.
“We want to have consistent access to the water treatment plant so we can maintain and provide water treatment, that’s the reasoning,” Jenkins said.
When contacted, Hennis said, “I cannot comment on this development, other than to say the EPA currently has access to the site.”
Indeed, Jenkins said that while Hennis has refused to come to a long-term lease agreement, he has not blocked access to the site.
The long-term future of the water treatment plant is an issue high atop the list of priorities in the Superfund around Silverton, known as the Bonita Peak Mining District Superfund site.
Some local officials and members of the public have called to expand the operating capacity of the plant to take in discharges from other mines around Cement Creek, a tributary of the Animas River.
But questions have loomed about this prospect, namely who would be financially on the hook to operate the plant in perpetuity.
But for Hennis, all this is a moot point. He’s still adamant that there are plenty of metals, like gold and tellurium, to be mined in the mountains around Silverton.
“Some of you have government pensions to rely on when you retire,” Hennis said at a public meeting in October 2015. “My retirement is Gladstone. Sitting here, listening to people say Gladstone would make a perfect site for a remediation laboratory, having my land cavalierly dealt with, is not a happy feeling.
“I know you wouldn’t want your backyard or your retirement stolen from you,” he continued. “This is not going to happen. I’ve tried to be very reasonable.”
The EPA’s Jenkins said the administrative order would terminate if a lease agreement is signed or if access to the property is no longer needed by the EPA to conduct response activities at the Bonita Peak Mining District Superfund site.
The fires burning in the American West were the prompt. Turning to the president, Wallace asked Trump what he believed about climate science and what he would do in the next four years to confront carbon pollution. Trump, at first, demurred.
“I want crystal clean water and air,” Trump responded. Then he pivoted to a familiar talking point: railing against cluttered forests as the cause of wildfires in California and other western states.
The initial line — the desire for crystal clean water — is one that the president repeats frequently, even dating to his 2016 presidential campaign. Immaculate water, he has also said. Clear water. Beautiful water. But the focus on appearances is superficial, according to a number of water advocates and analysts. Revisions to environmental rules that the administration has pursued during the first term of the Trump presidency will be detrimental to the nation’s waters, they said.
“President Trump loves to say that he wants crystal clear water,” Bob Irvin, president and chief executive of the conservation group American Rivers, told Circle of Blue. “But his administration has adopted policies that will result in dirtier water across the country.”
Irvin, an environmental lawyer by training, has worked in Washington D.C. for more than three decades, starting out as a trial attorney in the Justice Department during the Reagan administration. He was senior counsel for fish and wildlife for the Senate Committee on Environment and Public Works. He worked for conservation organizations like the World Wildlife Fund and the National Wildlife Federation. His career has spanned Republican and Democratic administrations and there was always at least some common ground for environmental priorities, he reflected.
Not during the Trump administration, though. Irvin could not name any beneficial administration policy for waterways. “It is stunning for me to say that,” he said.
Others interviewed for this story were not as absolute, but they echoed, to varying degrees, Irvin’s thoughts: “This administration has been unrelentingly hostile to the idea of conservation and environmental protection, and has been single-minded in its determination to undermine that protection.”
Failure to secure a big win for infrastructure was surpassed by an agenda to undo environmental protections.
First under Scott Pruitt and currently led by Andrew Wheeler, who lobbied for fossil fuel industries he now regulates, the U.S. Environmental Protection Agency took the reins in the administration’s plan to weaken federal authority and relinquish power to the states.
Like his boss, Wheeler made public statements that lifted water to a place of prominence.
“My frustration with the current dialogue around environmental issues is that water issues often take a backseat,” Wheeler told the audience at the Wilson Center on March 20, 2019, in an event to mark World Water Day. “It’s time to change that.”
And yet, many critics and analysts say that the administration did not change that. Regulatory rollbacks not only at the EPA but from the Army Corps of Engineers, Bureau of Reclamation, and the Department of Energy leave the country’s waters more vulnerable to pollution and development, they say. States, which are enduring budget cuts to their environmental units, are not in a position to be a backstop, argues Eric Schaeffer, executive director of the Environmental Integrity Project.
“The assumption that states are going to come in and fill the gap is not warranted,” Schaeffer told Circle of Blue. Schaeffer was the director of EPA’s Office of Civil Enforcement from 1997 to 2002. His group released a study showing that 31 states reduced funding for state pollution control agencies from 2008 to 2018. “When EPA leaves the field, it leaves a lot of work undone,” he said.
The list of places where EPA has left the field or stepped back from it is long. The administration gave coal power plants more time to close unlined waste pits and relaxed standards for pollutants in power plant wastewater that is discharged to rivers and lakes. It narrowed the scope of state reviews of pollution impacts under the Clean Water Act. It withdrew a proposal that would have required mining companies to provide more financial assurance that they could clean up future water contamination. Reversing an Obama-era decision, it decided not to regulate perchlorate in drinking water. Draft rules for lead in drinking water appear to give utilities more time to replace lead service lines.
The U.S. Forest Service, for its part, overturned an Obama-era prohibition on mining leases in about 234,000 acres of Superior National Forest in northern Minnesota. The administration is proceeding with an environmental review of the contested Twin Metals mine, a proposed copper-nickel mine that would be located in the national forest some five miles from Boundary Waters Canoe Area Wilderness.
The Bureau of Reclamation, meanwhile, has sought to increase the height of Shasta Dam over the objections of the state of California and the Winnemem Wintu tribe, which do not want higher waters to submerge salmon habitat and cultural sites along the McCloud River. And the Bureau is carrying out an executive order to maximize water exports from the Sacramento-San Joaquin delta.
Laura Ziemer, the senior counsel and water policy advisor for Trout Unlimited, said that there is a lot of opportunity for the Bureau of Reclamation to invest in drought and climate preparedness in the western states through certain forms of natural water storage and irrigation efficiency. But projects like the Shasta Dam raise are not that…
Out of all these deregulatory actions, one stood out. Most people interviewed for this story singled out the administration’s changes to the scope of the Clean Water Act — the definition of what counts as a water of the United States, or WOTUS — as the most damaging policy for water.
“It’s going to have consequences that are irreversible and far-reaching,” Kyla Bennett, New England director and science policy director at Public Employees for Environmental Responsibility, told Circle of Blue.
Written by the EPA and Army Corps, the WOTUS rule reduces protections for wetlands and ephemeral streams that only flow after rainfall. Agency staff used national hydrological datasets to calculate that as many as half of the nation’s wetlands and 18 percent of streams would be excluded under the new rule. That means developers will not have to seek permits to fill in wetlands and stream segments that formerly had protection. It also means that requirements to minimize damage and offset unavoidable impacts by restoring wetlands elsewhere have been stricken.
Ziemer noted that western rivers are particularly vulnerable to the removal of protections for ephemeral streams…
Watersheds that are connected from headwater channels to floodplains absorb high flows and retain that water through drought periods. “If we allow all of our hydrologic function to be paved over, we are going to expose ourselves to both flood and drought risk moving forward,” Ziemer said.
The EPA press office declined requests from Circle of Blue for interviews with Wheeler and David Ross, head of the Office of Water. It is the agency’s position that no existing map depicts accurately the boundaries of federal regulatory authority under the Clean Water Act. Several federal agencies are now working to publish such a guidepost.
Tipping the Balance of Power
What is the effect of this overhaul? In most cases, it is too early to say. Narrowing the scope of the Clean Water Act took effect this June for every state but Colorado. “It takes a while between the time you push the lever on a new policy or decision and the time the impacts show up in water quality,” Schaeffer said.
The administration touts other steps it has taken to secure the nation’s water: a national plan to coordinate the reuse of water, orders to speed up reviews and permitting of things like the management plan for federally managed dams on the Columbia River, and formalizing a water “subcabinet” of department heads who will coordinate policy, a determination that it will regulate two toxic PFAS substances in drinking water. FEMA, to the pleasure of green groups, also quietly advanced new guidance that allows greater use of federal flood prevention funds for natural infrastructure such as wetlands.
In general, the administration’s rules have tipped the balance of power to users of water: mining companies, energy developers, farmers, homebuilders. Even as it moves to regulate two PFAS in drinking water, the EPA is allowing the chemical industry to produce and sell new PFAS substances.
Among the president’s most ardent supporters is the American Farm Bureau Federation. Don Parrish, senior director of regulatory relations for the Farm Bureau, told Circle of Blue that the administration has assisted in three ways: collaborating with states on nutrient pollution, encouraging market-based systems for trading pollution credits, and simply listening to farm groups.
“One of our biggest priorities coming into this administration was a more realistic definition of waters of the United States,” Parrish told Circle of Blue. Narrowing the scope of the Clean Water Act accomplished that, Parrish said, though the Farm Bureau did not get everything it wanted in the revised rule.
The Utility Water Act Group, a coalition of energy utilities and industry groups that sued to overturn Obama-era coal ash regulations and to support the Trump administration’s environmental policies, declined to comment for this story.
It’s not just the policies that have drawn ire. The Trump administration has sought to transform the process by which those decisions are made: by sidelining scientific evidence and shrinking the environmental review process.
According to a survey of federal scientists, political appointees in the Trump administration raised barriers to using science in policy decisions. More than 4,200 federal scientists responded to the survey, which was conducted in 2018 by the Union of Concerned Scientists and Iowa State University. Half of respondents agreed or strongly agreed that political considerations outweighed scientific conclusions.
The legacy of these four years is still being written. The administration’s policy changes have fared poorly in court. Many have been overturned because of procedural missteps and hastily written justifications. Other rules like the definition of waters of the United States are in the early stages of litigation.
“The territorial seas and traditional navigable waters,”
“Perennial and intermittent tributaries to those waters,”
“Certain lakes, ponds, and impoundments,” and
“Wetlands adjacent to jurisdictional waters.”
The final definition “provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before,” according to the EPA. “Congress, in the Clean Water Act, explicitly directed the Agencies to protect ‘navigable waters.’ The Navigable Waters Protection Rule regulates the nation’s navigable waters and the core tributary systems that provide perennial or intermittent flow into them.”
In July, final changes to the rule were published by the EPA to implement section 401 of the CWA that many characterized as gutting a 50-year history of state and tribal water quality regulation.
“This section allows states and tribal nations to protect health and human safety within their geographic boundaries by making permitting decisions related to the discharge of waste into state waterways,” according to a press release published by the Washington State Office of the Attorney General. The press release went on to say that the rule would “handicap states’ abilities to regulate water quality.”
In July, Washington Attorney General Bob Ferguson filed suit against the EPA and the Army Corps of Engineers in the U.S. District Court for the Northern District of California. The case is co-led by New York and California and was joined by Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Wisconsin, and the District of Columbia.
The lawsuit alleges that the new rule “unlawfully violates the plain language, intent and established case law interpreting the Clean Water Act.”
“The final rule forces states to issue permits based on an incomplete review of what effects industries will have on waterways,” according to the Washington attorney general’s press release. “States will only be able to consider a narrow range of impacts these projects have on water quality, even when the consequences cause far-reaching and even irreversible environmental damage. The rule also limits the amount of information industry must provide, unreasonably reduces the amount of time states have to make decisions or deny permits and attempts to grant the federal government oversight of projects rather than states.”
Environmental and conservations groups estimate the final rule leaves 50% of U.S. wetlands and millions of miles of streams unprotected, according to the Milwaukee Journal Sentinel…
Colorado met with success in the U.S. District Court for the District of Colorado, where an injunction was granted to stop the rule within the state. “The court found that Colorado met the bar for preliminary injunction and agreed to freeze the rule until the litigation plays out,” according to E&E News.
Colorado’s case says the new rule is “significantly narrower” than prior WOTUS definitions and is “inconsistent with case law on the scope of the CWA and abandons the ‘significant nexus’ test laid out in U.S. Supreme Court Justice Anthony Kennedy’s concurring opinion in the 2006 case Rapanos v. United States,” according to Law Week Colorado. “According to this test, wetlands or non-navigable bodies of water fall under the CWA if they ‘significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as ‘navigable.’”
The 10th Circuit convened a remote three-judge panel to hear the EPA’s motion to overturn the injunction, during which Deputy Assistant Attorney General for the U.S. Department of Justice Jonathan Brightbill “argued the rules were narrowed to provide clarity in the wake of three Supreme Court cases.”
“Against this thoughtful interpretation of navigable waters and in light of the Supreme court precedent, including the SWANCC decision which definitively holds there is a stopping point to the term navigable waters short of the Interstate Commerce Clause, Colorado points only to generalized objective provisions of the Clean Water Act,” Brightbill said in a Courthouse News Service article, referring to the 2001 case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.
Representing the state of Colorado, State Solicitor General Eric Olson emphasized that important protections are missing from the new WOTUS definition.
Bobby Ray Baldock, senior U.S. Circuit judge, pointed out that Colorado could correct the issue with legislative measures.
“Olson explained that Colorado is one of 48 states that previously relied on the federal permitting system and that the new rule was implemented during a state legislative session shortened by Covid-19,” according to Courthouse News. “We absolutely agree we could put in a regulatory regime that could fill that gap, but we can’t do that in 60 days, which is all that they gave us under the rule,” Olson said.
U.S. Circuit Judge Carolyn McHugh disagreed. “That’s self-inflicted because the Colorado approach has been there will be no dredge-and-fill permits,” McHugh countered, according to Courthouse News. “The [federal] response was you’ve known since the executive order was signed, isn’t that fair notice?”
There’s new evidence about the extent of pollution from PFAS compounds—the so-called “forever chemicals”—that were used in non-stick cookware and many other products like firefighting foam and food packaging. PFAS has been linked to suppressed immune function, cancers, and other human health issues. Now, the compounds have been found in a mosquito pesticide, Anvil 10+10, which has been widely applied across the country and could be contaminating water supplies with the toxins.
Anvil is sprayed from helicopters, airplanes, and trucks and is used in at least 25 states from Massachusetts to California. A group known as Public Employees for Environmental Responsibility (PEER) found PFAS in Anvil samples, and as the Boston Globe reports, the state of Massachusetts confirmed the pesticide contains the compounds. Given the widespread use of the pesticide over the years, specialists say it’s likely that the chemicals have leached into groundwater and other water sources.
The Clarke company, which makes the product, said no PFAS ingredients are used in the formulation of Anvil, but acknowledged the chemicals could have been introduced though manufacturing or packaging. Officials at EPA, who’ve been criticized for delaying new standards to reduce PFAS exposure, said they were looking into the findings and plan to conduct their own analysis.
A representative of PEER said it’s frightening that we do not know how many other pesticides, insecticides, or even disinfectants contain PFAS.
Food & Water Watch executive director Wenonah Hauter declared that these findings shock the conscience and that states likely have unknowingly contaminated communities’ water with PFAS hidden in pesticides, and she charged that, once again, the EPA has failed to protect the American people from harmful pollution.
Here’s the release from the Environmental Protection AgencyK:
Aggressively addressing per- and polyfluoroalkyl substances (PFAS) in the environment continues to be an active and ongoing priority for the U.S. Environmental Protection Agency (EPA). Today, the agency is announcing two important steps to address PFAS. First, EPA issued a memorandum detailing an interim National Pollutant Discharge Elimination System (NPDES) permitting strategy for addressing PFAS in EPA-issued wastewater permits. Second, EPA released information on progress in developing new analytical methods to test for PFAS compounds in wastewater and other environmental media. Together, these actions help ensure that federally enforceable wastewater monitoring for PFAS can begin as soon as validated analytical methods are finalized.
“Better understanding and addressing PFAS is a top priority for EPA, and the agency is continuing to develop needed research and policies,” said EPA Administrator Andrew Wheeler. “For the first time in EPA’s history, we are utilizing all of our program offices to address a singular, cross-cutting contaminant and the agency’s efforts are critical to supporting our state and local partners.”
“Managing and mitigating PFAS in water is a priority for the Office of Water as we continue our focus on meeting 21st century challenges,” said EPA Assistant Administrator for Water David Ross. “These actions mark important steps in developing the underlying science and permitting techniques to address PFAS in wastewater where the discharge of these chemicals may be of concern.”
EPA’s interim NPDES permitting strategy for PFAS provides recommendations from a cross-agency workgroup on an interim approach to include PFAS-related conditions in EPA-issued NPDES permits. EPA is the permitting authority for three states (Massachusetts, New Hampshire, New Mexico), the District of Columbia, most U.S. territories including Puerto Rico, Indian Country, and certain federal facilities. The strategy advises EPA permit writers to consider including PFAS monitoring at facilities where these chemicals are expected to be present in wastewater discharges, including from municipal separate storm sewer systems and industrial stormwater permits. The PFAS that could be considered for monitoring are those that will have validated EPA analytical methods for wastewater testing, which the agency anticipates being available on a phased-in schedule as multi-lab validated wastewater analytical methods are finalized. The agency’s interim strategy also encourages the use of best management practices where appropriate to control or abate the discharge of PFAS and includes recommendations to facilitate information sharing to foster adoption of best practices across states and localities.
In coordination with the interim NPDES permitting strategy, EPA is also providing information on the status of analytical methods needed to test for PFAS in wastewater. EPA is developing analytical methods in collaboration with the U.S. Department of Defense to test for PFAS in wastewater and other environmental media, such as soils. The agency is releasing a list of 40 PFAS chemicals that are the subject of analytical method development. This method would be in addition to Method 533 and Method 537.1 that are already approved and can measure 29 PFAS chemicals in drinking water. EPA anticipates that multi-lab validated testing for PFAS will be finalized in 2021. For more information on testing method validation, see https://www.epa.gov/cwa-methods.
EPA continues to make progress under its PFAS Action Plan to protect the environment and human health, including:
Highlighted Action: Drinking Water
In December 2019, EPA accomplished a key milestone in the PFAS Action Plan by publishing a new validated method to accurately test for 11 additional PFAS in drinking water. Method 533 complements EPA Method 537.1, and the agency can now measure 29 chemicals.
In February 2020, EPA took an important step in implementing the agency’s PFAS Action Plan by proposing to regulate PFOA and PFOS drinking water.
EPA also asked for information and data on other PFAS substances, as well as sought comment on potential monitoring requirements and regulatory approaches.
In November 2020, EPA issued a memo detailing an interim National Pollutant Discharge Elimination (NPDES) permitting strategy for PFAS. The agency also released information on progress in developing new analytical methods to test for PFAS compounds in wastewater and other environmental media.
The recommendations provide a starting point for making site-specific cleanup decisions and will help protect drinking water resources in communities across the country.
In July 2020, EPA submitted the Interim Guidance on the Destruction and Disposal of PFAS and Materials Containing PFAS to OMB for interagency review. The guidance would:
Provide information on technologies that may be feasible and appropriate for the destruction or disposal of PFAS and PFAS-containing materials.
Identify ongoing research and development activities related to destruction and disposal technologies, which may inform future guidance.
EPA is working on the proposed rule to designate PFOA and PFOS as hazardous substances under CERCLA. In the absence of the rule, EPA has used its existing authorities to compel cleanups.
Highlighted Action: Monitoring
In July 2020, EPA transmitted the Unregulated Contaminant Monitoring Rule 5 (UCMR 5) proposal to the Office of Management and Budget (OMB) for interagency review. EPA anticipates proposing nationwide drinking water monitoring for PFAS that uses new methods that can detect PFAS at lower concentrations than previously possible.
Highlighted Action: Toxics
In September 2019, EPA issued an advanced notice of proposed rulemaking that would allow the public to provide input on adding PFAS to the Toxics Release Inventory toxic chemical list.
In June 2020, EPA issued a final regulation that added a list of 172 PFAS chemicals to Toxics Release Inventory reporting as required by the National Defense Authorization Act for Fiscal Year 2020.
In July 2020, EPA issued a final regulation that can stop products containing PFAS from entering or reentering the marketplace without EPA’s explicit permission.
Highlighted Action: Scientific Leadership
EPA continues to compile and assess human and ecological toxicity information on PFAS to support risk management decisions.
EPA continues to develop new methods to test for additional PFAS in drinking water.
The agency is also validating analytical methods for surface water, groundwater, wastewater, soils, sediments and biosolids; developing new methods to test for PFAS in air and emissions; and improving laboratory methods to discover unknown PFAS.
EPA is developing exposure models to understand how PFAS moves through the environment to impact people and ecosystems.
EPA is working to develop tools to assist officials with the cleanup of contaminated sites.
In July 2020, EPA added new treatment information for removing PFAS from drinking water.
Highlighted Action: Technical Assistance
Just as important as the progress on PFAS at the federal level are EPA efforts to form partnerships with states, tribes, and local communities across the country.
EPA has provided assistance to more than 30 states to help address PFAS, and the agency is continuing to build on this support.
These joint projects allow EPA to take the knowledge of its world-class scientists and apply it in a collaborative fashion where it counts most.
Highlighted Action: Enforcement
EPA continues to use enforcement tools, when appropriate, to address PFAS exposure in the environment and assist states in enforcement activities.
To date, across the nation, EPA has addressed PFAS in 15 cases using a variety of enforcement tools under SDWA, TSCA, RCRA, and CERCLA (where appropriate), and will continue to do so to protect public health and the environment.
Highlighted Action: Grants and Funding
Under this Administration, EPA’s Office of Research and Development has awarded over $15 million through dozens of grants for PFAS research.
In May 2019, EPA awarded approximately $3.9 million through two grants for research that will improve the agency’s understanding of human and ecological exposure to PFAS in the environment. This research will also promote a greater awareness of how to restore water quality in PFAS-impacted communities.
In September 2019, EPA awarded nearly $6 million to fund research by eight organizations to expand the agency’s understanding of the environmental risks posed by PFAS in waste streams and to identify practical approaches to manage potential impacts as PFAS enters the environment.
In August 2020, EPA awarded $4.8 million in funding for federal research to help identify potential impacts of PFAS to farms, ranches, and rural communities.
Highlighted Action: Risk Communications
EPA is working collaboratively to develop a risk communication toolbox that includes multimedia materials and messaging for federal, state, tribal, and local partners to use with the public.
The city would pay a fine of $2 million and commit to an additional $43 million in stormwater projects over 15 years, Mayor John Suthers announced earlier this week.
Suthers said “an agreement in principle” exists for a settlement between the city — the defendant in the case — and the plaintiffs including the Environmental Protection Agency, the Colorado Department of Public Health and Environment, Pueblo County and the lower Arkansas Valley Water Conservancy District.
“We’re now entering a 30-day comment period,” he said. “At the end of it, the judge will evaluate whether he wants to approve the settlement. I suspect he will.”
The mayor said that in the next few weeks, city officials will explain settlement details to the public, and that he already has City Council approval to pay the penalty.
“The federal government would get $1 million of the fine, and the state would get the other half,” he said. “The state’s share actually goes into a current project in the Arkansas River. That’s a lot better than a $12 million fine that was initially discussed.”
As a result of the penalty, however, Suthers said the city will have to raise its stormwater fee to homeowners and businesses over the next 15 years to pay the penalty…
Suthers said the city’s stormwater issues were a result of inaction by previous city councils, but upon his election as mayor in 2015 he pledged to address the issue and heal the rift between Pueblo County leaders, who had threatened to sue the city.
In fact, in the spring of 2016, Pueblo County agreed on a long-range plan in which the city would spend $460 million over 20 years on 71 stormwater projects, maintenance and enforcement.
To help generate the needed revenue, Suthers in 2017 pushed for the re-establishment of a stormwater fee ultimately passed by voters that November…
The city hoped its progress on stormwater issues would prevent a lawsuit, but in November 2016 the EPA initially filed suit and the other plaintiffs joined in. U.S. District Judge Richard Matsch presided over the weeklong bench trial in Denver in September 2018, and issued his ruling two months later.
The new regulations would require PAWSD to treat wastewater so that it is cleaner than the water initially taken in through their river diversions, Ramsey explained. This would mean the treated wastewater that gets discharged downstream would be cleaner than the water PAWSD takes in upstream.
Ramsey went on to explain how treating the wastewater to that extent may not be worth it, given the next water district to pull from that water source is over 100 miles away.
According to Ramsey, this would be upward of a $12 million capital investment project.
When asked in a phone interview about where the funding needed for a project like this would come from, he said, “We have no idea, that’s the problem.”
The board also discussed the possibility of raising the monthly sewer service base charge from $32 to $47 in 2025…
In the meeting, Ramsey ex- plained that PAWSD could fight the state on the imposed regulations.
PAWSD has already hired an at- torney to assist with the matter. According to Ramsey, PAWSD chose to hire attorneys with Law of The Rockies, who are currently representing Mt. Crested Butte in its dispute…
According to Walsh, the revised intergovernmental agreement with the Pagosa Springs Sanitation Gen- eral Improvement District (PSS- GID) “clearly stated that expansion and/or modification was a joint expense.”
PAWSD and the PSSGID entered into the agreement for PAWSD to treat the PSSGID’s wastewater.
Drought surcharge plan
The board also discussed the possibility of implementing a new drought surcharge rate plan. The new plan would include five stages of drought, progressing from a vol- untary stage to stage four.
The triggers used to determine the drought stage would include the San Juan River flow rate and the Hatcher Reservoir water level, along with the call date on the Four Mile diversion and the date when snowpacks on the mountains have melted away.
According to a presentation from Ramsey, for the voluntary through stage two categories, there would be no extra sur- charge for up to 4,000 gallons of water used in residential units per month. For stages three and four, there would be a surcharge of $7.68 per unit.
According to the presentation, for the voluntary stage and stage one, there would be no surcharge for residential units using more than 4,000 gallons of water a month. In stage two, a “2x stan- dard tier rate fee” would be ap- plied when using more than 4,000 gallons. Stage three would incur a “surcharge and a 3x standard tier rate fee” and stage four would in- cur a “surcharge and a 4x standard rate fee” for residential units using more than 4,000 gallons of water a month.
These new rates have not been applied yet, and according to Ramsey, PAWSD will be conducting a water usage study before imple- menting a new plan.
The lawsuit filed in 2016 claimed the city’s stormwater control efforts were underfunded and understaffed starting in 2009 and for years afterward. The suit also said the city’s failure to control stormwater degraded, eroded and widened Fountain Creek and its tributaries.
City officials stepped up stormwater control efforts in recent years after voters approved a stormwater fee in 2017.
But for years, poor stormwater control sent silt washing down Fountain Creek to the Arkansas River where it filled in the channels of both waterways and caused flooding in communities downstream, including Pueblo and La Junta, said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District…
The proposed consent decree will also hold the city of Colorado Springs accountable to complete the stormwater projects needed to improve water quality, he said. The document outlines required audits, milestones the city must meet, and hefty fines if it fails to complete the required work.
The proposed consent decree is expected to be finalized soon. It must be submitted to U.S. District Court Judge John Kane by Friday, according to court records. The judge set a deadline for submission of the decree, after the parties were granted six requests for more time to reach an agreement…
U.S. Department of Justice spokeswoman Danielle Nichols said the proposed consent decree requires the city to spend $11 million on projects intended to mitigate the alleged violations of water quality standards in Fountain Creek and its tributaries. In addition to helping reduce the flow of silt, the work will help keep oil, grease, heavy metals, pesticides, fertilizers and bacteria out of the waterways, she said…
Fulfilling the requirements of the proposed consent decree could require $100 million in spending to improve stormwater control and associated projects, Nichols said. However, the city would have spent $55 million of the $100 million anyway on operating, personnel and other costs, said Travis Easton, Colorado Springs’ public works director.
The $45 million required to fulfill the consent decree is in addition to the $460 million the city is spending over 20 years to build 71 stormwater projects to meet its 2016 agreement with Pueblo County, he said.
The spending on the consent decree includes $2.1 million mostly in fines that the Colorado Springs City Council approved Tuesday. That money will come from the general fund, not stormwater fees, Mayor John Suthers said.
The federal government will receive $1 million in fines and the Lower Arkansas Valley Water Conservancy District will receive $1 million in state fine revenue to fund projects, according to the proposed consent decree. Pueblo County will receive $25,000 to cover lawsuit costs and the conservancy district will receive $100,000 for lawsuit costs, the document shows…
The fine revenue set aside for the conservancy district will help it fund projects across its five-county territory and help it secure additional grant money to meet the needs for water quality projects, Winner said. The district needs to put in projects, such as riparian zones and ditch lining, he said.
The district could put in $100 million in water quality projects and still have work to do, he said.
Since the 2016 revelation that groundwater in Fountain Valley, which provided drinking water for Security-Widefield and Fountain, was contaminated with toxic per- and polyfluoroalkyl substances (PFAS), which include a number of individual chemicals such as PFOS, PFOA, PFHxS and PFHpA, government agencies, residents and community activists have been struggling to come to terms with what is arguably one of the largest ecological contaminations in Colorado’s history.
On Aug. 4, Chris Reh, associate director of the U.S. Agency for Toxic Substances and Disease Registry (ATSDR), led a virtual information session for residents of Security-Widefield and Fountain regarding its ongoing PFAS exposure assessment. The assessment will randomly select participants and test blood, urine and tap water for levels of PFAS chemicals. According to Reh, the assessment will identify how people might be exposed to chemicals, calculate the extent of exposure and determine if there is a threat to health.
ATSDR’s exposure assessment is the first part of a process that will continue in 2021 with the Pease Study, a national multi-site study conducted locally by the Colorado School of Public Health that will look at the human health effects of PFAS exposure through drinking contaminated water. While the sites chosen for this study are near Air Force operations, PFAS exposure extends far beyond Air Force bases. Much of the focus in El Paso County is on Fountain Valley, but the Air Force Academy on the city’s Northside also released PFAS chemicals, and residents of Woodmen Valley report health concerns as well, though they are not included in the ATSDR exposure assessment.
El Paso County is one of eight sites nationwide identified by ATSDR for exposure assessments related to PFAS chemicals. The sites, located in Alaska, Colorado, Delaware, Massachusetts, New York, Texas, Washington and West Virginia, are co-located with Air Force bases that used aqueous film forming foam (AFFF), a type of chemical used to extinguish fuel fires and that contains PFAS chemicals…
Since 2016, community activists have been working to raise awareness of this environmental threat, and Colorado legislators have recently passed laws to address PFAS contamination. While much of the blame, and legal consequences, for this massive and widespread contamination have been aimed at companies that produce PFAS chemicals, such as DuPont and 3M, the military has known of the potential dangers of these chemicals since at least 1989.
The Air Force Occupational and Environmental Health Laboratory published a study titled “Biological Analysis of Three Ponds at Peterson AFB [Air Force Base], Colorado Springs CO” in November 1989 that raised concerns about contamination coming from the installation. “A series of three man-made ponds on the golf course at Peterson AFB, Colorado Springs CO were analyzed to determine their current ecological status and future potential for recreational fishing,” notes the report, which goes on to identify that “Pond 3 cannot be recommended for stocking with fish in its current condition. Low species diversity suggests that this pond is being stressed by an unknown pollutant.” The report identifies a nearby storm drain as a “chronic source of pollutants for this pond.” While the Air Force analyzed a number of factors, such as pH and the levels of phytoplankton and zooplankton, it was quick to identify AFFF as a possible problem, noting that it “was accidentally spilled into pond 3 shortly before the first fish kill. A subsequent restocking resulted in a second fish kill.”
Stephen Brady of the Peterson-Schriever Garrison Public Affairs office commented, “When there is a potential our missions are having, or may have had, an adverse impact on communities, we take appropriate measures to protect it. When PFOS was discovered in the aquifer south of base in 2016, we immediately stopped using the legacy foam during fire response and training. We replaced the legacy foam in our fire response vehicles in November 2016 and in the hangar fire suppression systems in 2018 with a more environmentally responsible foam. Our first responders will only use the new environmentally responsible firefighting foam for emergency life-saving response, and do not discharge it during training. The Air Force takes environmental stewardship seriously, and continuously strives to meet or exceed environmental standards.”
By the early 2000s DuPont and 3M were facing lawsuits from residents near their plants and increased scrutiny from the Environmental Protection Agency, but it wasn’t until 2016 that the EPA formally issued a health advisory regarding PFAS chemicals and set advisory levels of contamination at 70 parts per trillion (ppt)…
While Rosenbaum was organizing FVCWC, the Colorado School of Public Health began to study exposure and health effects from PFAS chemicals. The study was named “PFAS Aware.” In 2018 the PFAS Aware team began sampling water in Fountain Valley. Initial results published in December 2018 showed that “total PFASs in untreated well water ranged from 18 – 2300 ppt” and that “PFASs detected are typical of fire-fighting foam-impacted groundwater.”
On Sept. 18, 2019, the Air Force Academy sent a notice to Woodmen Valley residents, signed by Col. Brian Hartless, the installation commander, warning them that “firefighting foam containing PFOS and PFOA was used for firefighter training at the Academy from the 1970s until 1990, when we began to consolidate all of our training at Peterson Air Force Base. After that time, the equipment used to dispense the foam was periodically tested until approximately 2005.” Hartless did note that “this firefighting foam has never been used to extinguish a petroleum-based aircraft fire at the Academy” and that “the foam now in use at the Academy is a more environmentally friendly formula that we began using in approximately 2017.” Hartless went on to inform residents that the Air Force would begin sampling wells within the Woodmen Valley Fire Protection District.
According to Hartless, Air Force Civil Engineer Center representatives “identified 37 private wells used for drinking water at homes closest in proximity to the southern base boundary for sampling. To date, 35 of the 37 wells have been sampled.”
Bill Beaudin, a Woodmen Valley resident since 1978, questions the Air Force’s testing process. “The north border of our property is the south border of the Academy,” he says. “We live on six acres. For many years until 1995 we all used well water. We were offered to go on city water at that time and most of us took that option. About 38 families chose not to go on city water for whatever reason.”
Longtime residents like Beaudin were concerned about the fact that the Air Force only tested the wells still in use. “The rest of us all drank that water and so did our children for all of those years in the ’70s, ’80s and early ’90s until we went on city water,” says Beaudin, “and yet the Air Force Academy chose to just do this select group.”
On March 24, the Air Force announced in a news release, “recent well water monitoring tests on the southeast perimeter of the U.S. Air Force Academy show Perfluorooctane sulfonate (PFOS) and Perfluorooctanoic acid (PFOA) below the Environmental Protection Agency’s Lifetime Health Advisory level of 70 ppt.”
While the Air Force reported PFOS and PFOA levels below the EPA advisory limits, Rosenbaum says that doesn’t tell the whole story. ”There’s 4,700 different types [of PFAS],” she says, “PFHxS is toxic firefighting foam, which may or may not have PFOA, which is Teflon, or PFAS, which is Scotchgard water-repellent. So when the Air Force Academy said ‘we’re below levels of PFOA and PFAS,’ all of us activists who have been doing this for four years were like, ‘duh.’ You don’t have a Teflon pan company. You don’t have a Scotchgard water-proofing company. You have toxic firefighting foam, so here, Public Employees for Environmental Responsibility [PEER] did a FOIA [Freedom of Information Act request] to try to get the PFHxS levels, and they are really high.”
On March 12, 12 days before the Air Force’s statement, PEER reported that “The Air Force Academy test data of neighboring drinking water wells found levels of two individual PFAS chemicals, PFHxS and PFHpA, at more than 200 ppt in two locations” and “combined PFAS levels at a single well of 503.9 ppt and 537.8 ppt across two separate tests.”
The consternation over the levels of PFAS chemicals in the water stems from concerns over the health effects of exposure to these chemicals. Heightened levels of PFAS chemicals have been linked to health problems such as increased cholesterol levels, changes in liver enzymes, decreased vaccine response in children and increased risk of kidney or testicular cancer, according to Rachel Rogers, an environmental health scientist with ATSDR.
“A neighbor that was four houses away, her husband died of testicular cancer,” says Beaudin. “A neighbor who has since passed away died from both kidney and bladder cancer. They were longtime neighbors of ours.”
Rosenbaum notes, “The main health issues here are kidney cancers, prostate cancer and a lot of autoimmune diseases.” Autoimmune disease are often difficult to diagnose because symptoms can come from other common conditions…
Lawmakers in Colorado addressed problems with PFAS contamination during the 2019 legislative session. Tony Exum, D-House District 18; Lois Landgraf, R-House District 21; Pete Lee, D-Senate District 11; and Dennis Hisey, R-Senate District 2, sponsored House Bill 1279, which bans the use of AFFFs that use PFAS chemicals for testing or training purposes. In 2020 the same group of legislators sponsored House Bill 1119, which further regulates the use of PFAS chemicals.
On July 10, The city of Colorado Springs and Colorado Springs Utilities, along with the cities of Aurora, Greeley, Fountain and a number of water districts filed a motion to vacate an administrative action hearing by the Colorado Water Quality Control Commission (WQCC) in regards to a proposed new policy to address PFAS contamination, referred to as policy 20-1. The motion states, “The Joint Parties recognize the importance of assuring that drinking water supplies are not contaminated by PFAS, and that water supplies contaminated by PFAS are cleaned up. Vacating the administrative action hearing will not preclude the cleanup of PFAS; it will require that regulatory measures imposed by the Water Quality Control Division are properly authorized through a rulemaking hearing.”
Rosenbaum was confused by the motion. “At first the injunction was pretty difficult to understand,” she says. “Here we are Saturday morning and it came across that they wanted all the PFAS discussions taken out of the meeting. This is our fifth contamination to our water district here. We have to do something completely different and drastic and start writing new policy. The state health department wasn’t making a new law, they were adding language to the policy they already had in place.
According to Jennifer Kemp, a public affairs specialist with Colorado Springs Utilities, “The reason for our joining several other Front Range entities on the motion to vacate is because we did not agree with the WQCC’s approach to regulating PFAS. Under Colorado’s State Administrative Procedure Act, a policy is a general statement of interpretation that is not meant to be a binding rule. Therefore, we joined other stakeholders in asserting that the regulation of PFAS is so important that it should have been accomplished with a thorough rulemaking process to establish a statewide PFAS standard.”
On July 14 the WQCC adopted policy 20-1. “What this policy does,” explains Rosenbaum, “is it forces wastewater to test for PFAS. Your drinking water is fine, it’s not contaminated yet, but do you have an industry that’s dumping everything into the wastewater? We have the Clean Air Act, Clean Water Act, so they’re not dumping in rivers anymore but they’re dumping into wastewater.
Now we’re making that accountable in our state. Now we’re explicitly stating in writing CDPHE [Colorado Department of Health and Environment] will receive extra funding to help that water district do an investigation of the industries that are connected to the wastewater system to see if they have PFAS. If they do, now they have to filter it at their site. If you own a restaurant, you have a grease trap. You can’t just dump in the wastewater. If you have a dental office, it’s explicitly written that they have to filter mercury. We’re not doing anything different, we’re just directly applying it where they’ve gotten away with no rules because they’ve been allowed to self-regulate.”
While ATSDR completes their current study, Rosenbaum is planning her next steps. “We need to set maximum contaminant levels in this state,” she says. “What we can do is stop the industry from adding more [PFAS contamination] in. New Hampshire set it at 18 ppt, where the state health department wanted to set it at 700 ppt for PFHxS, which is stupid. The EPA isn’t monitoring PFHxS, they’re just doing PFOA and PFAS, so we brought in evidence from other states saying PFHxs is actually the more harmful one because it’s more prevalent.”
In a speech commemorating the 50th anniversary of the EPA’s founding, Wheeler said the agency was moving back toward an approach that had long promoted economic growth as well as a healthy environment and drawn bipartisan support.
“Unfortunately, in the past decade or so, some members of former administrations and progressives in Congress have elevated single issue advocacy – in many cases focused just on climate change – to virtue-signal to foreign capitals, over the interests of communities within their own country,” he said.
Environmental groups and former EPA chiefs from both parties have accused Wheeler and his predecessor, Scott Pruitt, of undermining the agency’s mission by weakening or eliminating dozens of regulations intended to protect air and water quality, reduce climate change and protect endangered species.
“EPA was founded to protect people—you, me and our families—but the Trump administration has turned it into an agency to protect polluters.” said Gina McCarthy, who led the agency during the Obama administration and now is president of the NRDC Action Fund, the political arm of the Natural Resources Defense Council.
Under President Donald Trump, EPA has raised the bar for requiring environmental reviews of highway and pipeline construction; reduced limits and reporting requirements for methane emissions; rolled back vehicle fuel economy and emissions standards; slashed the number of protected streams and wetlands; and repealed federal limits on carbon emissions from power plants.
Courts have blocked some of the changes, but others have taken effect.
In his remarks, Wheeler said that if Trump is re-elected EPA would support “community-driven environmentalism” that emphasizes on-the-ground results such as faster cleanup of Superfund toxic waste dumps and abandoned industrial sites that could be used for new businesses.
He pledged to require cost-benefit analyses for proposed rules and to make public the scientific justification for regulations, saying it would “bring much needed sunlight into our regulatory process” and saying opponents “want decisions to be made behind closed doors.”
Critics say a science “transparency” policy EPA is considering would hamper development of health and safety regulations by preventing consideration of studies with confidential information about patients and businesses.
Wheeler spoke at the Richard Nixon library in Yorba Linda, California. The Republican president established the EPA in 1970 amid public revulsion over smog-choked skies and waterways so laced with toxins they were unfit for swimming or fishing. Some of the nation’s bedrock environmental laws, such as the Clean Air Act and the Clean Water Act, were enacted during his administration.
The Office of Mountains, Deserts and Plains will take charge of remediating abandoned mine lands, including the Gold King Mine in southwest Colorado
The Environmental Protection Agency is creating a new office in Lakewood that will focus on cleaning up abandoned hardrock mining sites west of the Mississippi River, including the Bonita Peak Mining District where the Gold King Mine disaster originated in 2015.
The Office of Mountains, Deserts and Plains will be located in the EPA’s regional office at the Denver Federal Center, the agency announced during a news conference at the Western Museum of Mining and Industry in Colorado Springs on Wednesday. EPA’s National Mining Team Leader Shahid Mahmud will be the acting director, and the team will have nine full-time staff positions.
The office, which will use existing agency funds, will primarily focus on remediation work at Superfund sites and other abandoned mining locations, which release millions of gallons of pollution into streams each year. Remediation efforts will include cleaning up sites and the surrounding environment, and in some cases rebuilding the mine for operations.
There are more than 63 Superfund Mining and Mineral Processing Sites west of the Mississippi River, including nine in Colorado. In Colorado alone, there are roughly 23,000 abandoned mines.
Many historic mining sites don’t have an owner or operator to facilitate cleanup operations themselves, placing it in the EPA’s hands…
The new office will also help speed up project timelines, including to clean up hundreds of abandoned uranium mines on the Navajo Nation.
An agreement finalized in February designated funding and resources to clean up 24 of the highest priority mines, five years after the federal government and tribe first reached a settlement on the mines…
Another goal of the office is to make it easier for so-called “good Samaritan” cleanup operations, such as those facilitated by Trout Unlimited or The Nature Conservancy. Current law says that if a group wants to contribute to cleanup efforts, they could be responsible for finishing the job, whether they’re capable of doing so or not. While the law is what it is, Benevento said, the new office will do what it can to make collaborative cleanup efforts “as unbureaucratic as possible.”
For a few days in August 2015, invisible mining pollutants could be seen by the world
Five years ago today, a breach at the Gold King Mine north of Silverton sent a deluge of water loaded with heavy metals into the Animas River, turning the waterway an electric-orange hue that caught the nation’s attention.
But five years later, and four years into the Environmental Protection Agency’s Superfund cleanup program, there has yet to be meaningful improvements to water quality and aquatic life.
Dan Wall, with the EPA’s Superfund program, said most of the focus since the Bonita Peaking Mining District Superfund site was declared in fall 2016 has been on studying the watershed and the multitude of mines impacting water quality.
The EPA is still in that effort, Wall said, and there’s no time frame for when the agency will present its final work plan for a comprehensive cleanup in the Animas River basin.
The EPA has spent more than $75 million on the site to date.
“It may be slower than what people want,” Wall said. “But we want to make sure our remedy selection is based on science … so the money won’t be wasted and we can be confident to see improvements based on the work we take.”
The stretch of the Animas River between Silverton and Bakers Bridge, about 15 miles north of Durango, is virtually devoid of aquatic life. Fish populations in the river through Durango are unable to reproduce, in part because of heavy metal contamination. And, years ago, the city of Durango switched its main source of water to the Florida River because of quality issues in the Animas.
The Animas River Stakeholders Group formed in 1994 and brought together a coalition of local, state and federal agencies, as well as mining companies and interested people, who sought to improve the health of the river amid heavy metal loading from legacy mines.
Despite the many Stakeholders Group successes, water quality in the Animas River in recent years has diminished, mainly from the mines leaching into one of the river’s tributaries, Cement Creek.
In 2014, the EPA decided pollution had gotten so bad that it stepped in with a $1.5 million cleanup project of its own…
Despite millions of dollars in claims, no one was reimbursed for their losses after the EPA claimed governmental immunity. A lawsuit still lingers in the federal courts from those seeking to recoup costs.
But ultimately, the Animas River did not appear to be too adversely impacted – the spill did not cause a die-off of fish, and long-term studies have shown little to no effect on aquatic life or the waterway…
What the spill did accomplish was to highlight the legacy of mines chronically contaminating the Animas River: The amount of metals released from the Gold King Mine spill is equal to that released every 300 days from all the mines around Silverton.
After years of the possibility of the EPA’s Superfund program stepping in, it became official in fall 2016, with the agency singling out 48 mining-related sites set for some degree of cleanup…
Immediately after the Gold King Mine spill, the EPA built a $1.5 million temporary water treatment plant that takes in discharges from the mine and removes metals, which costs about $2.4 million to $3.3 million a year to operate.
But other than some minor projects around the basin, the EPA has focused on studies to better understand the complex mining district, and evaluate what long-term options would be best for cleanup.
The EPA is set, remedial project manager Robert Parker said, to make stronger headway on a quick action plan to address about 23 mining sites over the next few years while longer-term solutions are being examined.
Here’s the release from the Environmental Protection Agency:
New grant program continues implementation of…Administration’s Federal Action Plan to Reduce Childhood Lead Exposure
(July 30, 2020) — Today, the U.S. Environmental Protection Agency (EPA) announced a new grant program to help protect children in tribal communities from lead in drinking water at schools and childcare facilities. With this action, the agency is continuing to make meaningful progress under the Trump Administration’s Federal Action Plan to Reduce Childhood Lead Exposures by engaging with tribes and working to protect childrens’ health in these underserved communities.
“Protecting children in tribal communities from lead in drinking water is a priority for the Trump Administration and EPA,” said U.S. EPA Administrator Andrew Wheeler. “This new funding helps tribes further reduce lead in drinking water by boosting testing for lead in schools and childcare centers. This, in turn, will increase the health and wellbeing of the coming generation.”
Authorized by the Water Infrastructure Improvements of the Nation (WIIN) Act, EPA is making $4.3 million available to support the Lead Testing in School and Child Care Program Drinking Water Tribal Grant Program. Grantees will use the EPA’s 3Ts for Reducing Lead in Drinking Water guidance to implement lead testing programs and develop monitoring, maintenance and/or sampling plans that protect children from lead exposure now and in the future. Beneficiaries of the program must be members of a federally-recognized tribe. EPA will host a webinar in August to provide more information about the 3Ts toolkit and an overview of the grant and its scope.
While the U.S. has made tremendous progress in lowering children’s blood lead levels, some children are still exposed to high levels of lead. In December 2018, EPA with other federal partners announced the Federal Action Plan to Reduce Childhood Lead Exposures. Today’s announcement continues the agency’s significant progress in implementing this plan.
Project needs approval from Sunnyside Gold, a company potentially on hook for costs
It appears the Environmental Protection Agency has found a place for long-term storage of mine waste near Silverton.
The EPA announced this week it is proposing a waste repository for the Bonita Peak Mining District Superfund site on top of the existing tailings impoundment near the Mayflower Mill, about 2 miles northeast of Silverton off County Road 2.
The site, EPA officials say, would serve as a long-term option to store waste that is generated from Superfund cleanup actions, as well as sludge from the water treatment plant that takes in discharges from the Gold King Mine.
“It’s going to be there for the long haul to accommodate any waste we’ll need to remove,” said Christina Progess, the EPA’s lead for the Superfund site.
The proposal comes with one caveat, however: The property is owned by Sunnyside Gold Corp. The EPA has asked for approval from Silverton’s last operating mining company and has yet to hear back.
Gina Myers, a spokeswoman for Sunnyside Gold, said in an email to The Durango Herald that “SGC … had previously offered EPA the use of Mayflower ground for storage of sludge from the underutilized treatment plant.”
Myers did not clarify whether Sunnyside Gold will allow EPA access or not.
The need for a centrally located, permanent dump site for mine waste has been an ongoing issue for EPA ever since the Superfund was declared in fall 2016, about a year after the agency triggered a blowout at the Gold King Mine.
The water treatment plant constructed after the blowout generates up to 6,000 cubic yards of sludge a year – or about a football field buried in 3 feet of muck – and there’s little room on-site for storage. And in the future, the EPA will need a place to take waste removed from other projects…
In August 2019, Sunnyside Gold offered the EPA access to its property at the Mayflower tailings repository, a large series of four impoundments of historic mine waste rock that operated until the early 2000s.
“(The site) is an ideal and proven site for a repository for the water-treatment plant, and, in the interest of good faith and improving water quality, SGC has granted EPA access for this evaluative work,” the company said at the time.
Progess said the EPA sent Sunnyside Gold a consent for access request and hopes to hear of a final decision by mid-August…
If access were granted, the EPA would start a phased approach at the Mayflower tailings, Progess said. A liner would be placed on top of the existing piles for the new waste, which would then be capped.
All told, the EPA’s plan would have the capacity to store up to 609,000 cubic yards of mine waste and sludge. Use of the site, however, would vary year to year, depending on current projects and need…
The Mayflower tailings are suspected of leaching heavy metals into the Animas River, which has prompted Sunnyside Gold to conduct its own multi-year investigation into the matter.
Progess said the investigation remains ongoing, and the EPA would use a different, more stable location at Impoundment 1 on the site to store its waste to begin with. She said leaching is suspected at Impoundment 4.
“We feel comfortable starting the work at Impoundment 1,” she said. “That will allow us years of use while the investigation on Impoundment 4 can continue.”
The public can comment on the proposed plan until Aug. 27. A virtual public hearing will be held at 6 p.m. Aug 11.
Progess said the EPA hopes to have the site constructed and ready for use by fall 2021, about the time storage at the water-treatment plant for the Gold King Mine is expected to reach capacity.
It’s fitting that President Trump invoked an interstate highway expansion in Atlanta last week to announce final rules that, if they survive the inevitable legal challenges, will undermine one of the nation’s bedrock environmental laws, the National Environmental Policy Act. American voters face a fork in their own road this November — stay on the Trump expressway to environmental degradation and catastrophic climate change, or shift to the road, bumpy as it may be, to a cleaner environment and more sustainable future of wind, solar and other energy sources that do not involve burning fossil fuels.
The COVID-19 pandemic understandably has seized the nation’s attention, but that hasn’t lessened the risk we all face from air and water pollution and carbon-fed global warming. Trump has unabashedly sought to dismantle federal regulatory structures to speed up construction projects while forging a national energy plan based on producing and burning fossil fuels.
His embrace of the oil, gas and coal industries defies the global scientific consensus that burning fossil fuels emits greenhouse gases that make the Earth less habitable by warming the atmosphere, feeding stronger and more frequent storms, triggering devastating droughts that propel human migration, and pushing up sea levels so that they encroach on cities and other human settlements. In fact, the National Oceanic and Atmospheric Administration reported last week that unusually high tides led to record flooding among one-quarter of Atlantic and Gulf Coast communities where the agency maintains tide gauges. Climate change is no dystopian vision of the future; it is here.
Trump’s efforts to eviscerate regulatory oversight of the environment is rooted in his belief that regulations are for the most part unnecessary hurdles to economic progress. He bewails the amount of time it takes for projects to clear environmental reviews and related court challenges, adding what, in his mind, are unnecessary costs and delays. To be honest, he may have something there. NEPA came into being five decades ago — signed into law by President Nixon — and it’s not out of line to suspect that there are places where the law and the regulations that arose from it could use some reasonable revising. But Trump and his industry-connected advisors are not the ones to trust with such a task.
These new rules are not reasoned updates. By requiring environmental impact analyses to be completed within two years (now they often take twice that), the administration seeks to cut short the consideration of those most affected by major projects — often people of color and low-income households — and disarm the environmental activists fighting to ensure that necessary environmental protections are respected. The rules also would require regulators to no longer weigh the cumulative effects of a proposed project and limit their review to effects “that are reasonably foreseeable” and “have a close causal relationship” to the work being done. So, for example, a proposed project’s emissions could not be added to those of other nearby emitters to determine whether their cumulative impact creates an excessive burden on a specific community.
Separately, the Government Accountability Office reported last week that the administration tweaked the formula for measuring the “social cost of carbon” so that estimates of the potential harm from emissions are seven times lower than they used to be. It’s foolhardy — and dangerous — to look at environmental impacts through such a narrow lens.
Meanwhile, presumptive Democratic nominee Joe Biden, after lengthy negotiations with progressive environmentalists who had backed Sen. Bernie Sanders (I-Vt.), released a $2-trillion plan for quickly shifting the nation from its reliance on fossil fuels to renewable sources.
It’s not the controversial “Green New Deal” that progressives have been pushing, but it’s in the neighborhood. Getting such a measure through Congress even if both chambers were controlled by Democrats would be no easy task, but Biden’s proposal at least recognizes the dire future we all face if the nation — and the world — do not fundamentally alter how we produce and consume energy.
The world cannot afford to backslide on environmental protections and the all-important fight to mitigate the worst effects of climate change. Yes, jobs are important, but survival more so. The errors and consequences of the past are crystal clear. The question is, will we heed those lessons?
FromBloomberg Law (Ellen M. Gilmer, Stephen Lee, and Jennifer A. Dlouhy):
States and environmental coalitions are set to wage multiple challenges to President Donald Trump’s overhaul of federal requirements for environmental permitting, setting up long-term regulatory uncertainty and the potential for a checkerboard of rules across the country.
Trump unveiled the plan Wednesday, replacing Nixon-era rules for how federal agencies conduct reviews under the National Environmental Policy Act. The changes are aimed at streamlining permitting timelines for major projects down to two years, Trump said in public remarks in Atlanta…
Yet the move poses risks for developers and federal agencies alike. Congress hasn’t rewritten the requirements in the underlying, 50-year-old environmental law, and streamlined reviews that fall short of its mandates could be struck down in court.
“Even though the president has said that he wants to make this process more efficient and effective, it’s going to make it even worse, because it’s going to create more litigation and uncertainty,” said Sharon Buccino, senior director of the lands division at the Natural Resources Defense Council. “The controversy and the confusion around these projects is going to increase, rather than decrease.”
The administration’s critics are already sharpening their legal tools, vowing courtroom fights over how the White House’s Council on Environmental Quality crafted the new regulation.
Governor Jared Polis and members of his administration released a statement following the Trump administration’s increased efforts to rollback the bedrock National Environmental Protection Act (NEPA).
“This bedrock law helps protect the air we breathe and the water that is the lifeblood of our communities. We know NEPA needs to be more streamlined to ensure renewable energy and infrastructure projects can get moving. The voices of Coloradans should be heard on the projects that impact our communities,” said Governor Jared Polis. “Yet the Trump administration continues to put its thumb on the scale in order to favor special interests over hardworking Coloradans who value our environment and support a deliberative, citizen involved government. While I share the goal of cutting red tape, this latest Trump move is a misstep.”
Director Lew and members of the Polis administration testified at a field hearing in Denver in opposition to the Trump administration’s misguided NEPA roll-back
“Our nation’s roads connect our country and economy, but, historically, they divided many communities in their path,” said CDOT Executive Director Shoshana Lew. “Construction of the interstate cut through the heart of many cities and rural areas in America, with right of way often acquired disproportionately from lower-income and minority communities. On the heels of this activity in the 1950s and 1960s, NEPA provided a structured way to ensure a conversation with citizens about how a road, bridge or railway would affect their neighborhood, and to ensure opportunity for them to articulate their views or concerns. We can and should always find ways to improve these processes, but it is critical that we do so in ways that improve our understanding of the cumulative, direct, and indirect impact of projects on both our environment and our neighbors. This action misses the mark.”
“The decision by the Trump Administration to significantly alter NEPA implementation is the wrong direction for our country and Colorado,” said DNR Executive Director Dan Gibbs. “Coloradans highly value clean air and water. They want to protect our wildlife and open spaces, and ensure their communities are safe and healthy. The Trump Administration’s changes reduce safeguards, minimize the need to consider the broader or long-term impacts of federal decisions, and put arbitrary limits on environmental studies. These are contrary to Coloradans’ values and will likely result in further harm to Colorado’s natural resources, our economy, and communities.”
“Colorado’s economy and quality of life depend on clean air, clean water, and a stable climate,” said CEO Executive Director Will Toor. “The Trump administration’s new guidelines appear to be surgically designed to avoid consideration of the climate impacts of projects, will eliminate consideration of the cumulative impacts of fossil fuel development, and will undermine efforts to protect air quality in Colorado and other states.”
“This is what disempowerment looks like,” said Jill Hunsaker Ryan, Executive Director of the Colorado Department of Public Health and Environment. “The federal government is telling agencies to tune out community voices and ignore the most important issues when making decisions. This includes disregarding or diminishing questions of environmental justice, climate change, ozone pollution, and cumulative impacts. Colorado will once again step into the breach to protect its communities’ health, as well as our air, water and lands.”
The state’s Water Quality Control Commission voted unanimously Tuesday to enact a policy to put new limits on per-and poly-fluoroalkyl substances, better known as PFAS. The class of chemicals is a common ingredient in everything from nonstick pans to foam used to smother flames from jet fuel.
A growing body of scientific evidence has linked the chemicals to a range of health problems, including cancer and pregnancy issues. Meanwhile, federal efforts to regulate the chemicals have lagged, leaving states to take action on their own.
Liz Rosenbaum, founder of the Fountain Valley Clean Water Coalition, was relieved to see Colorado join the list of states cracking down on the chemicals…
Rosenbaum’s community just south of Colorado Springs is widely seen as ground-zero for Colorado’s growing PFAS pollution crisis. In 2016, scientists found elevated levels of a specific PFAS in the drinking water for Security, Widefield and Fountain. The study traced the contamination to firefighting foam used at Peterson Airforce Base. Two years later, another study found elevated levels of the same chemical in community members’ blood.
Further testing has since revealed the chemicals in waterways across the state. Recent results from a state study found four water sources where levels exceeded a health guideline set by the Environmental Protection Agency in 2008. All of the samples had some detectable levels of the chemicals.
In an effort to control the problem, the Colorado Water Quality Control Division proposed rules to require wastewater treatment plants and industrial sites to monitor the chemicals. It also established the authority for the state to limit the chemicals in future wastewater permits.
But the focus on wastewater was met with a fierce backlash from cities and private interests.
Three days before the commission hearing, Aurora, Colorado Springs and Greeley joined utilities and water districts in demanding regulators pause deliberations over the new rules. The motion to vacate claimed the rules focused on wastewater treatment plants, which do not add PFAS to water systems.
The groups called on the regulators to instead focus the source of the chemicals, like companies making carpet products or consumers using nonstick pans.
The Metro Wastewater Reclamation District, which serves more than 2 million people around metro Denver, put an especially shocking number behind their objection. If the state required wastewater districts to clean up the chemicals, it could cost ratepayers over $700 million.
Representatives for the Colorado Water Quality Control Division dismissed those concerns. Manufacturers and airfields would also face new scrutiny to clean up the chemicals, which means the wastewater district probably wouldn’t end up stuck with the problem. Under the rules, the district also likely wouldn’t face any of the new limits on PFAS until 2031. Meg Parish, a permit manager with the division, said by then it could be far cheaper to clean up the chemicals.
The Trump administration’s adoption of narrower protections for wetlands and waterways can take effect almost everywhere in the nation, except Colorado, while courts review whether the move was legal.
A federal Judge in California on Friday rejected a request for a nationwide injunction of the rule. Hours later, a federal Judge in Colorado agreed to freeze the federal rule within that state.
The California court’s decision is a major blow to environmentalists and states that had hoped to block the Navigable Waters Protection Rule across the country before it takes effect Monday. Colorado, meanwhile, is celebrating its success in blocking the rule in the Centennial State.
A coalition of liberal states and cities challenged the joint rule from the Environmental Protection Agency and Army Corps of Engineers, saying the agencies violated multiple federal laws. The U.S. District Court for the Northern District of California heard a marathon session of arguments June 18…
Colorado had filed its own legal challenge in the U.S. District Court for the District of Colorado.
Judge William J. Martinez said some of the state’s arguments were “unusual and partly self-contradictory,” but concluded that the state met the bar for a preliminary injunction, which will put the regulation on hold in that state while the litigation plays out.
Other lawsuits attacking the regulation are pending in district courts across the country, where litigants are pursuing similar efforts to block the measure.
The Trump rule defines which types of wetlands and waterways are subject to federal regulations under the Clean Water Act. The interpretation replaces the Obama-era Clean Water Rule and a set of Reagan-era regulations.
Here’s the release from the Colorado Department of Public Health and Environment:
The state announced the results of a project that tested water statewide for PFAS, pervasive chemicals that originate from toxic firefighting foam and other sources. The state found that none of the treated drinking water tested was above the EPA’s health advisory level, but the state did find higher levels of the chemicals in some groundwater sources.
The results are posted online in a data dashboard. With $500,000 awarded from the state legislature, the department facilitated the sampling of 400 water systems and 15 firefighting districts– as well as 152 groundwater sources and 71 surface water sources like rivers and streams. The sampling included about half of the drinking water systems in the state serving around three-quarters of the population.
“The current results show that no drinking water tested above the EPA health advisory for two chemicals,” said Kristy Richardson, state toxicologist at the Department of Public Health and Environment. “At the same time, we know science is evolving, and we are committed to using the most current and best available information to provide health-based guidance on exposure to the chemicals. As new studies become available, our understanding of health effects in humans — and our recommendations — will continue to be refined.”
Four entities that tested source water had sample results that exceeded the EPA health advisory. Three of the four entities already tested for the chemicals in previous years and have notified the public of those results– Stratmoor Hills Water and Sanitation District and Security Water and Sanitation District located in El Paso County and Sugarloaf fire district located in Boulder County. The entities are either not using that source water or treating the water to remove the chemicals before using it as drinking water. The additional entity is Fourmile Fire District.
Fourmile Fire District, located in Teller County, had not previously tested for the chemicals and found high levels in a well at one of their stations, but the state was informed the firefighters do not drink this well water. The fire district, local public health agency, and state are examining the geographical area to see if any residents living nearby may be impacted. Residents that live near the Four Mile station will be notified of the results and what steps they can take if they are concerned.
The state also sampled rivers and streams. All of the samples collected had some detectable level of the chemicals. The sample collected at the mouth of Sand Creek in Commerce City was above the EPA drinking water health advisory, but the state isn’t aware of anyone directly drinking this affected water. Nonetheless, high levels of the chemicals in streams can impact downstream drinking water supplies since they don’t break down.
The data indicate that industrial entities that have permits to discharge wastewater into rivers and streams may play a large role in the buildup of the chemicals. Sand Creek was sampled twice– one upstream of Commerce City on the east end of Aurora and one downstream before it flows into the South Platte. A number of industries treat and discharge wastewater in that area. The upstream sample result was 13 ppt, and the chemical amount increased downstream to a combined level of 77 ppt for the chemicals, a level above EPA’s drinking water health advisory.
The state recently released a survey that state dischargers are required to fill out providing information about the use and storage of certain products containing the chemicals. This will help the state better understand the risk of the chemicals entering state waters.
The state is also using its hazardous waste authority to require various sites along the Front Range to evaluate potential impacts to groundwater. State inspectors have evaluated three oil and gas facilities in the area of Sand Creek, and found that one facility has significantly impacted groundwater next to Sand Creek. The state will use the groundwater data and the surface water data from Sand Creek to determine if additional measures are needed to protect the creek.
“This is an essential step in filling in the gaps in our understanding of where the chemicals are in the state,” said John Putnam, director of environmental programs at the Colorado Department of Public Health and Environment. “But, our work is not complete — we will continue to work to assess conditions for the other systems not sampled, private wells near areas of contamination, and Colorado’s waters. And, we’ll work to find solutions where the chemicals are found at high levels and to safely dispose of materials before they get to our waters.”
As part of its action plan to address the chemicals, the state will propose a water quality policy to the Water Quality Control Commission in mid-July to enhance its ability to get more data on discharges of the chemicals to state waters and provide guidance on the need for filtration or other treatment. The policy will also help the state set limits on the chemicals from entering our waters.
Additionally, in spite of the shortened session, the legislature passed two important laws regarding the chemicals. There are now restrictions on the use of firefighting foam that contains the chemicals and a fee structure so the state can have the necessary resources to provide guidance on the health impacts and investigate and support communities that may be impacted. The fees will provide critical resources to (1) support additional sampling and health assessment for systems; (2) implement a takeback program to take back and dispose of materials with the chemicals; and (3) assist systems that have found the material in their source water.
The nation’s largest Native American tribe and several environmental groups are waging a legal challenge to a revised federal rule that lifts protections for many streams, creeks and wetlands across the U.S.
The rule, which took effect Monday, narrows the types of waterways that qualify for federal protection under the half-century-old Clean Water Act. As a result, critics say the number of waterways across the Navajo Nation and other arid states in the West that were previously protected under the act have been drastically reduced.
Public health advocates, environmentalists and some Western states, among other opponents, had promised court fights once the rule was imposed, saying the rollback will leave many of the nation’s millions of miles of waterways more vulnerable to pollution.
“At this point in time, with climate change occurring around the world, it’s more prudent than ever to protect our land, water and air,” said Navajo President Jonathan Nez. “We, as Diné People, have a duty to preserve and conserve our natural resources to ensure that our future generations have access to clean water, air and land.”
The tribe filed its claim Monday in U.S. District Court in New Mexico.
Amigos Bravos, the New Mexico Acequia Association and the Gila Resources Information Project followed with their own appeal Tuesday and the Environmental Integrity Project filed a separate claim in Washington, D.C. on behalf of four other environmental groups. The cases name the U.S. Environmental Protection Agency and the Army Corps of Engineers, the federal agencies in charge of administering aspects of the rule…
Paula Garcia, the executive director of the New Mexico Acequia Association, said communities around the state rely on traditional irrigation systems that are fed by snow, rain and runoff for crops and livestock. With protections removed for the seasonal waterways that feed the acequia systems, she said agricultural livelihoods will be put at risk.
Rachel Conn with Amigos Bravos said the rule protects the interests of polluters. “The Trump administration has opened the pollution floodgates,” she said.
Under the new regulation, permits are no longer necessary for discharging pollution into many rivers, lakes and streams. Charles de Saillan, an attorney at the New Mexico Environmental Law Center, said the effects could be felt by a number of businesses, from rafting companies to community farmers.
On the Navajo reservation, which spans parts of New Mexico, Arizona and Utah, officials say there already are businesses not complying with tribal and federal environmental laws and the revised rule won’t help bring them into compliance…
New Mexico was among the states that went to court in May seeking to keep the rule from taking effect.
At the time, New Mexico Environment Secretary James Kenney warned that the rule would leave nearly 90% of the state’s rivers and streams and about 40% of its wetlands without federal protection. He predicted that would “devastate New Mexico’s scarce and limited water resources.”
The state had pointed out in comments previously submitted to the federal government that New Mexico has no state protections to fall back on. New Mexico is one of three states that don’t have delegated authority from the EPA to regulate discharges of pollution into rivers, streams, and lakes.
FromCronkite News (Ellie Borst) via Indian Country Today:
Two Arizona tribes and a Phoenix-based advocacy group joined a pair of lawsuits this week to reverse a Trump administration clean-water rule that critics said would open the “vast majority of Arizona’s waterways” to pollution and degradation.
The suits were filed Monday, the same day a new Environmental Protection Agency rule took effect replacing an Obama-era rule that expanded federal oversight to include seasonal and other waterways.
Critics said the old rule placed a huge burden on farmers and landowners and they unveiled the Trump administration plan in January as a “commonsense” solution.
But the lawsuits – one joined by Mi Familia Vota and the other by the Pascua Yaqui tribe and Tohono O’odham Nation – say the Trump administration’s replacement has virtually no protection, and that Americans “stand to lose their most important resource: clean water.” Mi Familia Vota CEO Hector Sanchez Barba derided the new regulation as the “Dirty Water Rule.”
“The widespread negative community impacts of the Dirty Water Rule are another demonstration that Trump’s Environmental Protection Agency is not interested in protecting scientifically critical sources of water in our neighborhoods, communities, and states from polluting corporations,” Sanchez Barba said in a statement.
The suits are just the latest efforts to block the Navigable Waters Protection Rule, after a federal district judge in the Northern District of California on Friday rejected a push by 17 states to block implementation of the rule.
That allowed the rule to take effect except in Colorado: It had pursued its own case and won approval from a federal judge, also on Friday, blocking the Trump administration rule in that state…
Molly Block, EPA assistant deputy associate administrator for policy, said the agency is reviewing the latest lawsuits, but thanked the district judge in California for upholding the navigable waters rule last week.
“EPA and the Army are confident that the new rule provides much-needed regulatory certainty for farmers, landowners, and businesses and protects the Nation’s navigable waters while striking an appropriate balance between federal and state authority over aquatic resources,” Block wrote in the email.
The court said that Colorado Attorney General Phil Weiser had met the requirements for a temporary injunction to be granted. The decision came as a federal court in California rejected a similar request that was nationwide in scope and backed by several states including California and New York, according to Bloomberg business news.
The decision means the state will have more time to set up a new regulatory program to replace at least a portion of the protections lost under the new Waters of the U.S. rule, or WOTUS, as it is known.
Hiking near a snow-speckled mountain on a late spring day, it’s not hard to find water running through a narrow stream. Come back several months later, and that stream might be empty.
In Nevada, most waterways work this way. Roughly 90 percent of the state’s streams are intermittent or ephemeral, running at only certain times of the year in response to snowmelt or precipitation, according to data compiled by the Nevada Division of Environmental Protection (NDEP).
It’s a fact throughout the West, from Arizona to New Mexico. Many streams are seasonal.
Scientists say these streams, despite running irregularly, are important for ecosystem health in arid areas. They connect waterways, replenish groundwater supplies and support wildlife. That’s one reason many environmentalists are concerned about a Clean Water Act rollback, set to go into effect later this month, that would exclude most of these streams from federal protection.
In 1972, Congress passed the Clean Water Act, giving the federal government the authority to protect and regulate water. But for years, states, activists and industry have argued over its scope. And the new rule offers a narrower interpretation of the federal government’s role.
Although the Clean Water Act will still protect heavily used waterways in Nevada, including the Colorado River and the Truckee River, it excludes many wetlands and most seasonal streams.
As a result, the rule has set off a flurry of legal challenges from environmental groups. And in recent months, several Democrat-led Western states, including Colorado, California and New Mexico, have sued the Trump administration to challenge the final rule.
Nevada has not joined those suits. In comments submitted last year, NDEP described it as a “considerable improvement” over the Obama-era rule it replaced. Still, state regulators say they are evaluating the new rule’s total effect, and they expect to have to adjust existing permitting programs. They argue any gaps in protecting water quality will be addressed under state law…
Joro Walker, a lawyer with the Western Resource Advocates, questions whether Western states have the enforcement resources to enforce the rules as the federal government steps back…
In other cases, the new rule calls into question whether even some larger rivers fall under the Clean Water Act. As part of the rulemaking, the Trump administration approved a more narrow federal definition of what the Clean Water Act protects as Waters of the United States, or WOTUS…
Pollution only tells one side of the story.
Development — filling wetlands or paving over small streams — can also degrade waterways. That’s why many environmental groups want to see wetlands and small streams, especially in Nevada, to be explicitly included in a broad definition of what the Clean Water Act protects.
Hartl, with the Center for Biological Diversity, notes that it has long been difficult to determine whether or not an ephemeral or intermittent stream fell under protection of the Clean Water Act.
“No one knows the answer until someone decides to pave over it,” he said.
For years, activists, politicians and the courts have argued over the scope of the Clean Water Act, specifically where the state’s jurisdiction begins and federal jurisdiction ends.
In 2015, the Obama administration broadened the scope of the Clean Water Act, applying it to wetlands and seasonal streams. The move came in response to significant confusion over a 2006 Supreme Court case that produced no majority opinion and five separate opinions…
Since the final rule was released in April, environmental groups and more than a dozen states have sued the Trump administration, kickstarting what is likely to be another round of lawsuits and court guidance. One of the litigants is Environment America, which has a Nevada chapter.
Levi Kamolnick, state director for Environment Nevada, said that water does not abide by state borders. He worries lax regulation of seasonal streams in one state could affect Nevada. For that reason, Kamolnick said seasonal streams should be protected by the federal government.
According to an EPA analysis completed in 2009, about 27,000 Nevadans were served by drinking water systems that relied on intermittent, ephemeral or headwater streams, he added.
“We absolutely think that the Trump Dirty Water Rule runs counter to the intent of the Clean Water Act,” Kamolnick said. “We believe strongly that any moves to exclude non-permanent water sources [from federal protection] is detrimental to the health of Nevadans.”
Even in these tumultuous times with significant challenges arising each day – there are some issues that continue to require our attention and effort. One of those issues is water security. Water is becoming increasingly scarce around the United States, particularly in the West. Access to safe and affordable water has become even more critical because of its role in fighting the coronavirus pandemic. In the Colorado River basin — which has a population of roughly 40 million and accounts for 15 percent of the country’s agricultural production — demand already outstrips supply. Climate change could also worsen the situation. Meanwhile, in Washington, the Trump administration is rolling back a number of Obama-era environmental rules that have implications for water quality and water quantity. As Congress tries to respond to the pandemic and rescue the U.S. economy through trillions of dollars in federal aid, there is a push to include water infrastructure improvements as part of the solution.
Join POLITICO on Monday, June 15, at 8:20 AM MT/10:20 AM ET for this virtual deep-dive panel discussion on the policies and legislation needed at the state, regional and federal levels to meet the water needs of Western states and secure long-term solutions at a time when the attention and resources of local and state leaders are consumed by the pandemic crisis.
8:20 AM MT — Opening Remarks
8:30 AM MT — A Conversation with Governor Jared Polis, Colorado
8:45 AM MT — POLITICO Editorial Panel Conversation
Governor Stephen Roe Lewis, Gila River Indian Community
Rebecca Mitchell, Director, Colorado Water Conservation Board
Click here to read the release from the State of Colorado (Chris Arend, Heatheryn Higgins, Jessica Bralish, Matt Inzeo):
The Colorado Departments of Natural Resources, Public Health and Environment, Transportation and the Colorado Energy Office joined together in a statement expressing concern about President Donald Trump’s Executive order to lift reviews of environmentally impactful activities.
“The June 4, 2020, Executive Order from President Donald Trump directs federal agencies to bypass requirements for a number of bedrock federal environmental laws, including:
The National Environmental Policy Act
Endangered Species Act
Clean Water Act
Federal Policy and Land Management Act
It leaves to the federal agencies what projects or decisions they may move forward without complying with the protections of these and other laws, and removes the public’s ability to know about and comment on how such agency decisions will affect them and their communities.
Our Departments have successfully worked with local governments, businesses, stakeholders and citizens on numerous high profile projects where public engagement and additional environmental review enabled better projects, greater community buy-in, and increased protections for wildlife and natural resources. Specific examples include the Central I-70 Development in Denver, I-70 Mountain Corridor near Glenwood Springs, Upper Colorado River Endangered Fish Recovery Program, Canyons of the Ancients National Monument and Chatfield Reservoir Reallocation Project.
The attempt to avoid public engagement, environmental analysis and mitigation will damage Coloradans’ health, environment and economy. It will affect all parts of the state, from our prized public lands to urban development. It will threaten protections and careful balancing for water projects, as well as progress towards environmental justice including in building transportation infrastructure — which has had a legacy of significantly impacting urban downtowns and minority communities in the 1950s and 1960s, before these environmental protections were put in place. At a time when the risks of respiratory illnesses are especially worrisome, we should be doing more to account for communities’ health, not less.
The state of Colorado prioritizes efficient government processes with respect to project approvals, but emphasizes that public input and participation is a critical step in that efficient process, ensuring we’re not allowing public resources to be spent or used for publicly harmful practices.
While emergency exceptions do occur for some federal environmental rules, they are intended for true physical emergencies such as washed out roads from the 2013 floods, replacement of critical facilities after wildfires or failing dams.
Neither the COVID-19 emergency nor current economic conditions fall into that category that would justify shortcutting engaged, smart and thoughtful projects and decisions. Indeed, now more than ever, we need to ensure that projects protect our communities and safeguard Coloradans’ health, land, air, water, and wildlife.
Unilateral Executive Orders will only serve to delay needed highway improvements, critical energy infrastructure or efforts to protect our endangered wildlife and their habitat through litigation and administrative appeals.
We urge the Trump Administration to work with the State of Colorado on mutual beneficial projects which are collaborative, thorough, and protective of our environment and communities while providing long term benefits for all Coloradans.”
Will Toor, Executive Director, Colorado Energy Office
Dan Gibbs, Executive Director, Department of Natural Resources
Jill Hunsaker Ryan, Executive Director, Department of Public Health and Environment
Shoshana Lew, Executive Director, Department of Transportation
The administration has brazenly axed another long list of environmental protections — when it should have been healing a nation wounded by the pandemic and racist violence.
Under cover of tear gas, the Trump administration last week intensified its ongoing demolition of the country’s bedrock environmental protections — a series of calculated moves made while the nation remained gripped by the twin viruses of COVID-19 and institutional racism.
It started on Thursday, June 4, when President Trump used the pandemic as an “emergency” excuse to issue an executive order allowing federal agencies to set aside key protections in the Endangered Species Act and the National Environmental Policy Act in order to speed up the construction of oil and gas pipelines, highways and other projects.
Trump’s long-threatened NEPA rollback, which will limit citizens’ ability to voice objections to destructive projects, poses a direct threat to minority communities already facing greater levels of illness and death under the COVID-19 pandemic following decades of environmental racism.
“Here we are in the midst of an epidemic that affects your respiratory system and communities that are concerned about respiratory health are losing a voice to stop projects that exacerbate serious health issues,” David Hayes, executive director of the State Energy and Environmental Impact Center at New York University’s School of Law, told The Hill.
The executive order came three days after Trump used police and teargas to clear away peaceful crowds protesting racially biased police violence to make room for his now-notorious photo op in front of St. John’s Episcopal Church.
And it came the same day the National Oceanic and Atmospheric Administration announced that world atmospheric carbon dioxide levels had reached a new record high of 417.1 parts per million, putting the planet further on the path toward runaway climate change. “Progress in emissions reductions is not visible in the CO2 record,” NOAA senior scientist Pieter Tans said in the announcement. “We continue to commit our planet — for centuries or longer — to more global heating, sea level rise and extreme weather events every year.”
The text of the press release continued: “If humans were to suddenly stop emitting CO2, it would take thousands of years for our CO2 emissions so far to be absorbed into the deep ocean and atmospheric CO2 to return to pre-industrial levels.”
Which made it all the more perplexing when the EPA, following Trump’s order for additional “emergency” deregulation, announced it would ease the rules that require factories and power plants to report — or even monitor — their pollution emissions, although it did state that these industries should continue to obey existing pollution limits.
In another giveaway to industry, the new policy has been made retroactive to March 13, 2020.
As if those two changes weren’t enough, the slash and burn of environmental protections continued Friday, June 5, when Trump opened Northeast Canyons and Seamounts Marine National Monument to commercial fishing. The 4,913-square-mile reserve, located 130 miles off the coast of Cape Cod, was established by President Obama in 2016 under the Antiquities Act and is home to “fragile and largely pristine deep marine ecosystems and rich biodiversity,” according to NOAA.
The move came exactly one week after Trump declared June to be “National Ocean Month” in a bizarre proclamation that focused more on offshore oil and gas development and seafood production than conservation.
The changes were, of course, immediate criticized.
“This rollback essentially sells off the future of the ocean and the future of the ecosystem for almost no present economic benefit,” Miriam Goldstein, ocean policy director at the Center for American Progress, told The Guardian. She added that it’s “puzzling that the president is doing it now, in the middle of the pandemic and with police riots going on around the country.”
Mystic Aquarium was instrumental in providing the scientific rationale for the designation of the Northeast Canyons and Seamounts Marine National Monument, an area critical to combating the climate crisis that we are facing. To roll back protections is a mistake. pic.twitter.com/E9pdH1m6jd
Much like Trump’s similar moves to shrink or eliminate other national monuments established by Obama under the Antiquities Act, the change to Northeast Canyons and Seamounts is probably illegal. As we’ve written before, presidents have the legal authority to establish monuments but not to rescind or downsize them. Lawsuits over Trump’s previous monument reductions continue to work their way through the courts, and new suits over this rollback are already expected to follow.
Still more rollbacks are on the way.
Also on Friday June 5, the Trump administration moved forward with plans to reduce the protections offered under the Migratory Bird Treaty Act, another giveaway to the oil and gas industries — a particularly tone-deaf move during the middle of Black Birders Week, a nationwide event celebrating diversity in nature that coincided with the protests over racial police violence.
The changes to the 1918 international treaty law, which has helped hundreds of species over the past century, would decriminalize “incidental” (non-intentional) bird deaths caused by industrial projects such as oil pits, mines, telecommunications towers, wind turbines and other threats.
The changes aren’t final and are subject to a public-comments period, although citizens have already submitted approximately 200,000 public comments in favor of keeping the law as-is. But as National Audubon Society CEO David Yarnold pointed out, comment periods under the Trump administration “have become a cruel joke. The administration continues to ignore scientists, experts and … bird-lovers in favor of a few bad corporate actors who can’t be bothered with common sense environmental protections.”
Rep. Alan Lowenthal (D-Calif.) also criticized the changes, saying they would “lead to the deaths of thousands and thousands of birds protected under the MBTA. The administration’s radical action needlessly ties the hands of the [U.S. Fish and Wildlife Service], while at the same time undermining our international treaty obligations.”
What does all of this really mean in the long run? Legal experts have already pointed out that Trump’s executive order doesn’t have many teeth. “The Order is legally shaky and unlikely to accomplish much,” Dan Farber of UC Berkeley School of Law wrote this week.
Even corporate interests expressed some doubt, especially since the executive order will undoubtedly face court challenges. One engineer tweeted, as quoted by the Washington Post, that “there is *NO WAY* I would turn a shovelful of dirt based on this Order.”
But industry groups actively celebrated the changes and expressed hope they would extend beyond the “emergency” period.
“We value the importance of these reforms now and underscore the need for finalizing rules across regulatory agencies that will implement permanent reforms,” American Exploration and Production Council chief executive Anne Bradbury told the Post.
It’s the last two words of Bradbury’s quote — “permanent reforms” — that say the most. We can expect industry to continue to ask for — and the Trump administration to grant — expanded, permanent deregulatory favors beyond this “emergency” period, changes that will continue to worsen our environment for people, wildlife and entire ecosystems.
And as with so much the Trump administration has done over the past three and a half years, these slash-and-burn changes will come as quietly as they can manage, with regressive actions continuing to take place under cover of darkness or tear gas.
Of course none of them will address the many other real crises this nation faces — and as we’ve seen this past week, all of them will likely only serve to make things worse.
FromBloomberg Law (John Dunbar and Christina Brady):
After decades of inaction, the federal government has gotten serious about cleaning up PFAS, a class of compounds known as “forever chemicals” that have been linked to health problems and inhabit the bloodstream of nearly every American.
Congress has introduced dozens of bills mentioning “PFAS” so far in the 2019-2020 Congress, many more than in previous years. The boom in legislation has sparked a major increase in lobbying. In 2017, only four entities mentioned the issue in government lobbying reports. In 2018, the number grew to 35, and by 2019, it rocketed to 164.
More water utilities—which have pushed back against certain provisions to clean up PFAS—have lobbied on regulation of the chemicals than any other group. They rank above the air travel industry, cities, and chemical companies, a Bloomberg Law analysis shows.
“I continue to be shocked that people charged with keeping our water clean have been among the most vocal opponents of getting PFAS out of our water, and are in many respects just as bad as many of the polluters whose mess they are charged with cleaning up,” said Scott Faber, senior vice president for government affairs with the Environmental Working Group, a nonprofit advocacy organization…
One basic question underlies the debate over what to do about what is arguably one of the most pervasive public health threats facing Americans in years: Who is going to pay to clean up this mess?
Under proposed EPA regulation and congressional action, utilities are faced with removing the stubborn compounds from their systems and disposing of them in landfills which could be designated as Superfund sites. Water utilities are already dealing with an aging infrastructure, worries about lead, and costs associated with the coronavirus pandemic and its economic impact.
Among the tools in the EPA’s toolbox for cleaning up toxic chemicals like PFAS is the Superfund law, enacted in 1980, which gave the agency the authority to force polluters to pay for cleanup of toxic sites…
In July 2019, the Democrat-controlled House approved the National Defense Authorization Act (H.R. 2500), which contained an amendment by Michigan Democratic Rep. Debbie Dingell that would force the EPA to designate PFOA and PFOS as “hazardous” within a year, thus triggering the Superfund designation that would allow the EPA to compel cleanup.
An alliance of water associations wrote to the House and Senate armed services committees in August, saying the Superfund designation could “create liability for communities that encounter PFAS in their water treatment activities.”
The letter was signed by the American Water Works Association, the American Association of Metropolitan Water Agencies, the National Association of Water Companies, and the National Rural Water Association.
A coalition of industry groups also argued against the Superfund designation, saying such decisions are “not political questions that Congress is best positioned to address,” in a letter to the House. “EPA should retain its traditional authority to study potentially hazardous substances and to ascertain whether they should be designated under CERCLA.”
The letter was signed by more than a dozen industry associations, including the American Chemistry Council, whose members include 3M, which still manufactures PFAS compounds, and DuPont spinoff, Chemours Co., which now holds most of DuPont’s PFAS liabilities.
Faber, of the Environmental Working Group, said utilities aren’t usually big contributors of PFAS to sites that could be designated under Superfund and subjected to liability. And they don’t have deep pockets. The government usually goes after companies with resources, not “cash-strapped entities,” he continued.
Mehan, from the utilities group, said that EPA doesn’t sue municipalities under Superfund, but other entities—like polluters that have been declared responsible for cleaning up contaminated sites—”have and will. Hundreds of them.”
Mark W. LeChevallier is the former chief environmental officer for publicly traded American Water and is now a consultant. “Any utility has to be worried,” he said. “The ultimate disposal is an issue here. And that might be a concern that some utilities have. Will they have ultimate responsibility?”
In Colorado, where groundwater contamination is a problem thanks in part to the military’s use of firefighting foam at its facilities, state lawmakers proposed testing requirements for drinking water and setting limits for PFAS. But the proposal didn’t survive the bill’s first hearing.
“We had pushback from the utility companies,” said state Rep. Tony Exum Sr., a Democrat who represents a part of the state that has been contaminated with the chemicals. “To mitigate and prevent is very, very expensive, as well as enforcement.”
Similar to the federal level, the groups had liability concerns, which lawmakers sought to address, “but we just didn’t have enough time to move forward,” Exum said.
“We’re going to keep working on it so we can come to an agreement,” he continued. “We can’t take clean water for granted.”
FromColorado Politics (Marianne Goodland) via The Colorado Springs Gazette:
A bill on toxic firefighting chemicals that have contaminated water supplies in southern El Paso County won unanimous support Thursday from the House Finance Committee.
[HB20-1119] was approved by the House Energy and Environment Committee on March 9, before the General Assembly shut down for 10 weeks due to the novel coronavirus pandemic.
According to bill co-sponsor Rep. Lois Landgraf, a Colorado Springs Republican, the measure is a fix of sorts for legislation that passed in 2019 which banned the use of perfluoroalkyl and polyfluoroalkyl chemicals, known collectively as PFAS.
The 2019 law banned Class B firefighting foams that contain “intentionally added” per- and polyfluoroalkyl substances. Those chemicals were used for decades at Peterson Air Force Base in El Paso County and have been found in the Widefield aquifer, which serves Security, Widefield and Fountain, communities near the base…
Last year’s bill created the clean water process for PFAS, Landgraf said. “What we didn’t realize is that it also eliminated the ability of the airports to stay in business. United could not get their insurance because we banned any use of PFAS. They have to practice with it a couple of times every year to keep their insurance in place,” Landgraf said.
This year’s measure allows the testing to take place in airline hangars. The runoff will be captured in catch basins and then disposed of.
The bill also requires a the state’s solid and hazardous waste commission to come up with a certificate for any facility — like an airport — or firefighting department that shows PFAS is present on the premises.
Landgraf said the certificate will help the state track PFAS. “Right now we don’t know who’s using it and not using it,” she said.
The Colorado Aviation Association backs the bill in its current form, according to lobbyist Kelly Sloan, who pointed out that the use of PFAS is on its way out. The Federal Aviation Administration is planning to phase out the use of PFAS at airports, but for now, airports still have to comply with those federal regulations, he said…
The bill now heads to the House Appropriations Committee.
On behalf of the State of Colorado, Attorney General Phil Weiser today filed a lawsuit in federal district court in Denver to protect Colorado’s streams and wetlands from a dangerous federal rule that would leave them vulnerable to pollution under the Clean Water Act.
By radically changing how the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers define “waters of the United States” that are protected under the Clean Water Act, the new 2020 rule will leave a substantial portion of Colorado’s streams and wetlands without federal protection and jeopardize the integrity and quality of Colorado’s waters.
“The federal government’s new definition of ‘waters of the United States’ violates the Clean Water Act, contravenes controlling U.S. Supreme Court precedent, and ignores sound science,” Weiser said. “This illegal action shirks the federal government’s responsibility to implement this law and thrusts on Colorado the responsibility of protecting water quality with limited warning and with no support to do so. We are bringing this lawsuit to stop this new rule and reckless action from taking effect.”
The Clean Water Act protects U.S. streams, wetlands, and rivers from pollution. Previously, under Supreme Court precedent, the rule included ephemeral streams—streams that run because of melting snow or precipitation—and wetlands that aren’t connected on the surface to larger bodies of water.
“We need to challenge this action to avoid a bigger problem for our economy at a time when our state is already hurting from COVID-19. Some flood control, stormwater erosion, transportation, and other important projects may not be able to move forward because the new rule takes away the permitting path needed to ensure environmental protection and project development. That’s a problem that we need to fix,” said John Putnam, Environmental Programs Director, Colorado Department of Public Health and Environment.
The new 2020 rule does not include many ephemeral streams or wetlands without a surface connection. The lawsuit states that the new, narrower definition of the types of water protected under the Clean Water Act eliminates federal jurisdiction over a significant number of Colorado’s tributaries, adjacent waters, and wetlands that affect downstream waters, without providing any rational basis for the rule. This leaves Colorado’s snowmelt streams and wetlands vulnerable to pollution, which would negatively impact our state’s agriculture and outdoor recreation economy.
Through the lawsuit, Colorado is asking the court to maintain the definition in place since the 1980s and to stop the new, unlawful rule from going into effect. In so doing, Colorado is following up on its comment to the agencies, which praised earlier 2008 guidance as legally sound and grounded in science. Maintaining the status quo will also protect important agriculture exemptions, respect state authority to administer water rights, and provide the appropriate level of federal partnership.
Colorado and other Western states will be hard pressed to shield their rivers and streams under a new federal Clean Water Act rule finalized last month, largely because hundreds of shallow Western rivers are no longer protected, and writing new state laws and finding the cash to fill the regulatory gap will likely take years to accomplish, officials said.
“We are pleased the final rule protects important agriculture exemptions and provides continued assurance that states retain authority and primary responsibility over land and water resources…However, the federal government’s decision to remove from federal oversight ephemeral waters, certain intermittent streams, and many wetlands is based on flawed legal reasoning and lacks a scientific basis,” Weiser said in a statement.
Whether Colorado will seek an injunction to stop the new rule from being enforced and whether it will join other Western states in a legal challenge isn’t clear. Weiser and Pfaltzgraff declined to discuss their legal strategy, other than vowing to take action.
The Colorado Water Congress, which represents hundreds of water agencies and agricultural interests, had been largely supportive of the new rule before it was finalized. But Executive Director Doug Kemper said the group hasn’t finished its analysis of the final version.
Formally adopted by the U.S. Environmental Protection Agency April 21, the move to significantly revise the WOTUS rule began after President Trump took office and vowed to reverse policies established under the Obama Administration.
The new rule has already triggered a handful of lawsuits seeking to stop the EPA from enforcing them. One was filed by cattle growers in New Mexico alleging that the rule is still too onerous, and at least two others have been filed by environmental interests in South Carolina and Massachusetts, who say the rule leaves too many streams unprotected.
And more are expected.
The Clean Water Act (CWA) has been legally hamstrung for years over murky definitions about which waterways fall under its jurisdiction, which wetlands must be regulated, what kinds of dredge-and-fill work in waterways should be permitted, what authority the CWA has over activities on farms and Western irrigation ditches, and what is allowable for industries and wastewater treatment plants to discharge into streams.
One rule never fits all
Administered by the U.S. Army Corps of Engineers and the EPA, the CWA, now nearly 50 years old, is credited with making U.S. waters some of the cleanest in the world. But it has also been, at times, fiendishly difficult to administer, in part because of the nation’s widely different geographies.
Go to the East or Midwest, and massive rivers, such as the Ohio and Missouri, are filled with barge and shipping traffic and are clearly “navigable.” That was the term early courts used to determine how water would be regulated. If a stream was considered navigable, it was subject to federal law.
But Colorado and other Western states rely on shallow streams that don’t carry traditional commercial traffic. The U.S. Geological Survey estimates 44 percent of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24 percent are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32 percent of Colorado streams are classified as being perennial, meaning they flow year round.
Under the new rule, only perennial and intermittent streams, or those deemed navigable, will be regulated, meaning that thousands of miles of streams in Colorado and other Western states would no longer be protected under the law.
A financial quandary
And that worries state water quality officials who are responsible for protecting Colorado’s streams.
They warn that writing state rules and finding millions of dollars in new cash to enforce water quality protections will be difficult, especially as the COVID-19 budget crisis unfolds. Officials of the Colorado Department of Public Health and Environment (CDPHE), which includes the Water Quality Control Division, say that until state rules are in place, new housing developments and other projects could be stopped because there is no mechanism yet to issue the permits that were once issued by the federal government.
“While the specific impacts of this rule still are being determined, there’s no question this rollback removes huge swaths of Colorado’s waters from federal jurisdiction—the most of any administration since the passage of the Clean Water Act in 1972. The state will need to put in significant resources to determine how to continue to protect these waters and to determine how this rule will be implemented as the rule is unclear as written,” the CDPHE said in an email.
“Specific construction projects and associated permitting processes that were originally covered…won’t be able to move forward without doing so illegally and harming the environment,” the CDPHE said.
Melinda Kassen, general counsel for the Theodore Roosevelt Conservation Partnership, said it would make sense to pursue an injunction to give the state time to set up its own regulations and find a way to fund them.
“If you read the economic analysis that accompanies the rule, there are assumptions that the states will step up and take this over. The potential is for it to be really dysfunctional. We’ve got to get something set up,” Kassen said.
EPA officials have said they don’t expect federal funding to enforce the Clean Water Act will be reduced, even though the new WOTUS rule is smaller in scope and governs fewer waterways.
Still the CDPHE and most opponents of the new rule believe millions of dollars will be needed to fill in any regulatory gap.
How far Colorado will go to challenge the new rule isn’t clear. The CDPHE’s Pfaltzgraff said his agency is still analyzing its next steps.
“It is now up to the state to provide the necessary protection of both Colorado’s economy and the environment,” Pfaltzgraff said in a statement. “We are going to do everything we can, while also addressing the impacts from COVID-19, to ensure Coloradans live in the healthy state they deserve.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at email@example.com or @jerd_smith.
Two separate coalitions of environmental advocacy groups filed litigation on Wednesday against the U.S. Environmental Protection Agency and the Army Corps of Engineers challenging the Trump Administration’s rollback of the Clean Water Act.
At the core of the litigation is the definition of federally protected waterways, as recent changes in regulatory language have reduced legal protections for huge numbers of streams, especially around the arid West…
“This regulation is plainly unlawful. It violates the simple but powerful mandate of the Clean Water Act to protect the integrity of our nation’s waters,” Jon Devine, the Natural Resources Defense Council’s director of federal water policy, said in a statement announcing one of the legal petitions.
The NRDC — joined by seven other environmental groups from Wisconsin, New Mexico and elsewhere — filed a challenge in a federal district court in Massachusetts.
The other lawsuit was launched by more than a dozen national and local environmental organizations in the federal district court in South Carolina. It claims that the EPA and the Army Corps “neglected fundamental rulemaking requirements meant to constrain whimsical agency action.”
The Environmental Protection Agency and the Department of the Army published April 21 in the Federal Register the final replacement rule defining what waters are federally regulated under the Clean Water Act. The rule, which is set to take effect June 22, had been met with both support and promises of legal action.
The EPA and Department of the Army have 60 days to respond to the lawsuit.
The groups that joined in the legal challenge include the North Carolina Coastal Federation, which publishes Coastal Review Online, along with American Rivers, Charleston Waterkeeper, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Environment America, Friends of the Rappahannock, James River Association, National Wildlife Federation, North Carolina Wildlife Federation, Public Employees for Environmental Responsibility, Roanoke River Basin Association and South Carolina Coastal Conservation League.
“We are particularly concerned that many wetlands along our coast will no longer be regulated by the federal government,” said Todd Miller, executive director of the Coastal Federation.
“These areas include pocosins, Carolina Bays and other forested wetlands. These wetlands protect water quality in our coastal estuaries and reduce floods during storms. Current wetland rules, that have been in place for decades, balance the needs of landowners with these environmental and economic benefits,” he continued. “Losing this oversight by adoption of these new rules will result in more water pollution, less fish, and more costly disasters in coming years.”
The administration’s Navigable Waters Protection Rule is the second step in revising the definition of the scope of waters subject to federal regulation under the Clean Water Act and repeals the 2015 Clean Water Rule: Definition of “Waters of the United States,” often called “WOTUS.” The final rule “recognizes that waters of the United States are those within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that not all waters are waters of the United States,” according to the April 21 document.
The final rule specifically states that waters of the United States do not include groundwater; ephemeral, or impermanent, streams, swales, gullies, rills and pools made by rain; diffuse stormwater runoff, which is rainwater that spreads across the landscape, and features that control stormwater; previously converted croplands; ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands; and other exclusions.
Environmental activists got an unwelcome gift from the federal government on the eve of the fiftieth anniversary of Earth Day, when officials with the Environmental Protection Agency revoked clean-water protections for thousands of streams across Colorado. Now advocates and state officials are taking President Donald Trump’s administration to court.
One of many bedrock environmental laws targeted for rollbacks by the Trump administration, the Clean Water Act has protected the “waters of the United States,” including rivers, lakes, streams and wetlands, since its passage in 1972. But a rule change announced by the Trump administration on April 21 would dramatically narrow the definition of those “waters,” removing protections for many wetlands and smaller, intermittent streams, and potentially threatening ecosystems and drinking water supplies…
The EPA’s decision will hit especially hard in Colorado and other Western states where water is already a precious resource. The new rule excludes all “ephemeral” streams, which only flow after rainfall or snowmelt, and some “intermittent” streams, which only flow for part of the year. An estimated 55 percent of streams in Colorado are classified as intermittent or ephemeral, according to conservation group Trout Unlimited…
Under the new rule, which will formally take effect on June 20, developers and industrial interests will be able to build in many wetland areas or near ephemeral streams without applying for Clean Water Act permits. That could dramatically speed up construction of projects like oil and gas pipelines, while environmental-review processes are significantly weakened.
“Lobbyists for corporate agribusiness, developers, and the oil and gas industry have long demanded that federal protections be removed for streams and wetlands,” says Hannah Collazo, director of Environment Colorado. “This is just plain wrong. Clean water is vital for our health, our way of life, and for nature itself.”
Environmental groups have already announced plans to sue over what they call Trump’s “Dirty Water Rule,” and so has Colorado Attorney General Phil Weiser, who said in a statement that the administration’s decision is “based on flawed legal reasoning and lacks a scientific basis.”
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From Water Education Colorado (Laura Paskus and Caitlin Coleman):
When Water Justice is Absent, Communities Speak Up
Two years ago, a company that analyzes property data crunched the numbers on more than 8,600 zip codes in the United States and found that America’s most polluted neighborhood was in northeast Denver. The study, from ATTOM Data Solutions, shows that Denver’s 80216 zip code, which includes Globeville, Elyria-Swansea and River North, topped its “environmental hazard index.” As of 2017, the U.S. Environmental Protection Agency’s Toxic Release Inventory reported that 22 facilities were still releasing toxic chemicals in 80216, chemicals such as nickel, lead, methanol, creosote and more.
“The neighborhood is parked between gas refineries, the former airport, and then, also, what was at one time an Army base making mustard gas,” says University of Denver law professor Tom Romero, II, who has spent his career dissecting the factors behind environmental injustices in Colorado. There are two Superfund sites and six brownfield sites in 80216, plus the knot of Interstate 70 and Interstate 25 severs the neighborhood from the rest of Denver and increases pollution from highway traffic. The area is also home to a predominantly low-income, Hispanic and Latinx community, says Candi CdeBaca, Denver City Councilwoman for northeast Denver’s District 9.
Last year, CdeBaca became the first person from the neighborhoods to represent on the Denver City Council, ever. She points to an opposition campaign to the Central 70 Project as the beginning of the neighborhood rallying to achieve representation against environmental inequities.
The Central 70 Project broke ground in 2018 to widen the highway through Denver. It will demolish the viaduct that carries I-70 over Elyria-Swansea, replacing it with a below-grade highway. Residents had a list of worries: losing their homes to eminent domain, living even closer to the highway, and unearthing a Superfund site, which they feared would re-expose harmful heavy metals and increase health risks, CdeBaca says.
Their opposition campaign didn’t stop the highway work, but the community came together and won in one sense—the Colorado Department of Transportation will pay for a long-term health study, collecting data to determine whether toxins in the air, soil and water are making residents sick. They also gained a louder voice. “Those losses were the first start of me galvanizing some community power around environmental racism,” says CdeBaca. “Now we have this amplification of groups who never had representation in our government from the neighborhoods that were polluted.” She points to the importance of local voice and representation in all issues, particularly for communities that want to bring about environmental justice. “There is nothing that I support more than activating people power,” CdeBaca says.
With water affordability, access and quality challenges—all of which can translate into health impacts—the role of water in Colorado isn’t always one of fostering healthy communities, yet it could and should be. What contributes to these less-than-whole communities? And what does it take to recognize the issues and how they evolved, address power imbalances, engage the community, and restore equity where it’s been missing?
What is Environmental Justice?
Environmental injustices in Colorado, or anywhere, can span cities and suburbs, sovereign tribal lands, and rural communities. They have their roots in narratives of immigration, development and industry, and political power dynamics, further influenced by evolving legal and regulatory frameworks.
In 1990, EPA Administrator William Reilly created an Environmental Equity Workgroup to assess evidence that “racial minority and low-income communities bear a higher environmental risk burden than the general population.” The agency, which went on to establish an Environmental Equity office in 1992, later changing its name to the Office of Environmental Justice in 1994, defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” It has since expanded to offer a range of programs that provide services from grant funding to technical assistance and training. It also runs a National Environmental Justice Hotline.
Another early definition of environmental justice came from University of Michigan professor Bunyan Bryant, who said it refers to places “where people can interact with confidence that the environment is safe, nurturing and productive. Environmental justice is served when people can realize their highest potential.”
Scholars add additional layers to the term—it’s not just about identifying who is or isn’t harmed but includes some form of restitution, says Kelsea MacIlroy, an adjunct professor and PhD candidate in the sociology department at Colorado State University.
“There are a lot of different ways to talk about justice that aren’t just about who and how but also about a long-term social justice component,” MacIlroy says. “Does the community actually have an authentic seat at the table in addressing the ills?”
80216 may feel it all. “Denver was segregated, and that segregation manifested itself in a variety of ways in terms of water,” Romero says. “It meant that Denver’s communities of color, particularly African Americans and Mexican Americans, were living in close proximity to the areas with heavy industry, where the affordable housing is.” That’s a pattern and practice, he says, that was established in the 20th century and continues today. Many environmental justice cases have similar roots, as repeated practices that ultimately create winners and losers.
When Government Fails
Americans watched one of the most high-profile environmental justice cases unfold in Flint, Michigan, in 2015 and 2016 when corroded lead pipes poisoned the population.
To save money, in April 2014, the city switched its drinking water source and began supplying residents with Flint River water that wasn’t treated under federal anti-corrosion rules. The population was predominantly black, and more than 40 percent of residents were below the poverty threshold. According to the National Institute of Environmental Health Sciences, no level of lead exposure is safe but higher lead exposure leads to more health challenges including anemia, kidney and brain damage, heart disease, decreased IQ and more. In children, the impacts are especially toxic.
Residents began noticing a rusty tint to their tap water in the summer of 2015, but it wasn’t until October 2015 that the governor ordered Flint’s water source switched. By then, though the new water was safe, the plumbing wasn’t—corroded pipes continued to leach lead into drinking water. Bottled water and free faucet filters to remove lead at the point of use were distributed.
More than five years after the crisis in Flint began, the city and its residents are still recovering. The city’s FAST Start program is removing and replacing lead and galvanized steel service lines across the city, but it’s a big, expensive job. FAST Start has been funded with $25 million from the State of Michigan and $100 million allocated by Congress through the Federal Water Infrastructure Improvement for the Nation Act of 2016. As of December 2019, less than 40 percent of the city’s pipes had been replaced, with many residents still relying on faucet filters or bottled water.
Fifteen state and local officials were charged with various crimes, including involuntary manslaughter—some took plea deals and most cases were dropped. Residents now mistrust their water and water providers. That mistrust has flooded the nation, with many more communities now coping with elevated lead levels and lead pipe replacement.
According to the independent Flint Water Advisory Task Force’s final report, released in 2016, breakdowns in protocol, dismissal of problems, and failure to protect people occurred at nearly every level of government. Not only were customers supplied with unsafe drinking water, government officials were slow to acknowledge the problems and rectify the issue by providing safe water. According to the 2016 report, the Flint water crisis is a “story of government failure, intransigence, unpreparedness, delay, inaction, and environmental justice.” Had there been local control of resources and decisions, they write, the problems wouldn’t have occurred in the first place.
Coping with Forever Chemicals
Flint’s toxic water is not unlike the water quality issues discovered in 2016 in the Colorado towns of Fountain and Security-Widefield. That’s when water providers and residents learned that PFAS chemicals, short for per- and poly-fluoroalkyl substances, were detected at levels above EPA’s new 2016 health advisory levels. The source of the chemicals: firefighting foam used for decades to extinguish training fuel fires at the U.S. Air Force’s Peterson Air Force Base. The Air Force now uses a replacement foam at the base, and in 2019, the Colorado Legislature enacted restrictions and bans on PFAS foam, but the damage has been done. PFAS are known as “forever chemicals” because they bioaccumulate and remain in the environment for a long time, with half lives (the amount of time it takes the chemical to decrease to half its original value) in humans of two to eight years, depending on the chemical. They have been linked to cancers, liver and kidney damage, high cholesterol, low infant birth weight, and other ailments.
“We ended up having 16 family members that lived within that area that had cancer, and five of them died of kidney cancer,” said Mark Favors, during a public event on PFAS at Colorado School of Mines in January 2020. Favors is a former resident of Security, a U.S. Army veteran, a PFAS activist, and member of the Fountain Valley Clean Water Coalition. “A lot of [my family] are military veterans. One of my cousins, while he was doing two combat tours in Iraq, the Air Force was contaminating their drinking water. That’s the crazy part. How they’ve admitted it and it’s just hard to get any type of justice on the issue,” Favors says.
These southern El Paso County towns aren’t home to what are often considered disadvantaged populations—the poverty rate is between 8 and 9 percent, slightly less than the statewide average; about 60 percent of residents are white, and about 20 percent are Hispanic or Latinx, according to the 2017 U.S. Census. However, census numbers don’t represent military personnel who temporarily reside in the area. According to El Paso County’s Health Indicators report, published in 2012, four military bases in the county employ 40,500 military personnel and about 21,000 contract personnel.
When EPA tightened its health advisory levels in 2016, they were 10 times more restrictive than what the agency had previously advised, and water providers realized they had a problem. They acted quickly to provide residents with free bottled water and water filling stations while they suspended use of the aquifer, then worked to broker deals to purchase clean water from other municipalities. Some of those deals were only temporary. Since June 2018, the City of Fountain has worked to get back on its groundwater supply, treating the groundwater with granular activated carbon units provided by the Air Force. Now it is working with the U.S. Army Corps of Engineers to construct a full, permanent groundwater treatment plant. The story in Security is similar—the Security Water and Sanitation District has been importing water, primarily from Pueblo Reservoir, to meet the needs of its residents since 2016, which involved building new pipelines and purchasing extra water from Colorado Springs Utilities—an added cost. Security avoided raising water rates for a time, paying those costs out of its cash reserves. By 2018, residents had to absorb a 15 percent rate increase, with another 9.5 percent increase in 2019.
The Army Corps of Engineers is constructing a treatment facility in Security, too, which should be complete by the end of 2020. Once the plant is finished, Security will switch back to a combination of groundwater and surface water, and rates should stabilize once the costs of those pipelines are recovered, says Roy Heald, general manager at Security Water and Sanitation Districts.
Who pays to protect the health of those who rely on this water? “What responsibility did [the Air Force] have in rectifying this? What about the local sanitation districts? They have to deal with this. It’s not their fault but they’re tasked with giving clean water,” says MacIlroy at Colorado State University.
“The Air Force really has stepped up,” Heald says. But they may have to step up further—in 2019, the Security Water and Sanitation Districts and the Pikes Peak Community Foundation, another affected entity, sued the Air Force to recoup the costs of purchasing and piping in clean water. Their lawsuit cites negligence for disposal of chemicals, remediation of contamination, and breaching a responsibility to prevent dangerous conditions on the defendant’s property. Heald wouldn’t comment on the pending lawsuit, but says, “As long as [cash] reserves are at an adequate level, if we received a windfall there would be no place else for it to go besides back to our customers.” Those recouped costs would likely take the form of lower or stabilized rates.
Residents are also pushing for justice through a class-action lawsuit brought by the Colorado Springs-based McDivitt Lawfirm, which has teamed up with a personal injury law firm in New York to file against 3M, Tyco Fire Products, and other manufacturers of the firefighting foam.
“There’s going to have to be some sort of accountability and justice for these people who unknowingly, for years, drank colorless, odorless high amounts of PFAS,” says Favors. He calls for better oversight and demands that polluters are held accountable.
As for coping with PFAS-related health challenges, there are still a lot of unknowns, but El Paso County was selected to participate in two national Centers for Disease Control and Prevention studies to better assess the dangers of human exposure to PFAS, and to evaluate exposure pathways.
Locally, the study and lawsuits might help recoup some financial damages—but PFAS-related water contamination isn’t isolated to these Colorado communities. In July 2019, the Environmental Working Group mapped at least 712 documented cases of PFAS contamination across 49 states. Lawmakers in the U.S. House of Representatives, hoping to implement a national PFAS drinking water standard, estimate the number is even higher: 1,400 communities suffer from PFAS contamination. A U.S. Senate version of a PFAS-regulating bill has yet to be introduced. But in February, EPA released a draft proposal to consider regulating PFOS and PFOA, just two of the thousands of PFAS.
Justice through Water Rights
Environmental justice isn’t exclusively an urban issue. Injustices involving pollution, public health, access, affordability and water can be wrought anyplace—including rural and suburban areas. For rural communities, the issue comes to a head when people, organizations or entities in power seek more water for their needs at the cost of others.
In southern Colorado’s San Luis Valley, acequia communities fought for years to protect their water rights and way of life. Acequias are an equity-based irrigation system introduced by the original Spanish and Mexican settlers of southern Colorado. “What it means is that the entire community is only benefitted when all resources are shared,” says Judy Lopez, conservation project manager with Colorado Open Lands. There, Lopez works with landowners to preserve wildlife habitat, forests, culturally significant lands, and ag lands—including those served by acequias.
The Town of San Luis, the heart of Colorado’s acequia community, is one of the most economically disadvantaged in the state. It’s in Costilla County, where more than 60 percent of the population is Hispanic or Latinx—more than any other county in Colorado—and 25 percent of the population live in poverty, according to the 2017 U.S. Census. But the people there are long-time landowners, never separated from the land their ancestors settled, four to seven generations back, Lopez says. They have the state’s original water rights to match, including Colorado’s oldest continuously operated water right, the San Luis People’s Ditch, an acequia established in 1852.
Prior to statehood, the territorial government recognized acequia water rights. But when the Colorado Constitution established the right of prior appropriation, the priority scheme of “first in time, first in right” became the law, challenging communal rights.
“It was very difficult for [acequias] to go to water court and say, ‘This guy is taking my water,’” Lopez says. “It was very difficult to quantify the use and who was using it.”
It wasn’t until 2009 that the Colorado Legislature passed the Acequia Recognition Law. The law was developed by Rep. Ed Vigil with the help of the Sangre de Cristo Acequia Association, an entity that represents more than 73 acequias and 300 families who depend on them. Amended in 2013, the law solidifies the rights of acequia users. According to the Colorado Acequia Handbook, it allows “acequias to continue to exercise their traditional roles in governing community access to water, and also strengthens their ability to protect their water.”
In order to be recognized under the Acequia Recognition Act, acequias needed bylaws. Over the past six years, Colorado Open Lands, the Sangre de Cristo Acequia Association, and the University of Colorado Boulder have partnered to help 42 acequias write bylaws, thereby protecting their water. “The bylaws were still based, in large part, on those oral traditions,” Lopez says, “and included protective language that said, ‘If a water right is sold, or a piece of land is sold, that acequia gets the first right to purchase those rights.’”
Even having water rights doesn’t guarantee water access: Over the past few decades, the federal government has settled longstanding water rights cases with sovereign tribes, in many cases backdating tribal water rights to the dates of their reservations’ establishment. Although the tribes now have the nation’s oldest established water rights, they haven’t always, and they still come up against structural and financial barriers that prevent them from developing water and getting the real benefit of those rights.
Of the more than 570 federally recognized tribes in the United States, as of 2019 only 36 tribal water rights settlements had been federally approved. The Ute Mountain Ute and Southern Ute tribes in Colorado are among that small number, but despite their long journey, the tribes still don’t have access to all the water they own.
Tribal water rights have their roots in the Winters Doctrine, a 1908 case which established tribal water rights based on the date the federal government created their reservations—thereby moving tribal water rights to “first in line” among users.
In the 1970s and ‘80s, the U.S. government filed and worked through claims on behalf of the Ute Mountain Ute and Southern Ute tribes to surface waters in southwestern Colorado. In the 1980s, Congress approved a settlement between the tribes, the federal government and other parties; in 2000, the Colorado Ute Indian Water Rights Settlement Act was amended, entitling tribes to water from the U.S. Bureau of Reclamation’s proposed Animas-La Plata Project (A-LP), as well as from the Dolores Project’s McPhee Reservoir. Construction on A-LP began in 2001, and the project’s key feature, Lake Nighthorse—named for Sen. Ben Nighthorse Campbell—began filling in 2009.
Prior to the Dolores Project, many people living in Towaoc, on the Ute Mountain Ute Reservation, did not have running water and instead trucked it in to fill water tanks at their homes, says Ernest House, Jr., senior policy director with the Keystone Policy Center and former director of the Colorado Commission of Indian Affairs. His late father, Ernest House, Sr., was pivotal in that fight for water. “I was fortunate, my father was able to see A-LP completed. I think he probably, in his own right, couldn’t believe that it would have been done and could be done,” he says. But even today, some Southern Ute and Ute Mountain Ute communities still lack access to water, and aging infrastructure from the 1980s needs updating and repairs.
“Our tribes as sovereign nations cannot maintain or move forward without access to water,” House says. “We have to remind people that we have tribal nations in Colorado, and that we have other tribes that continue to call Colorado home, that were removed from the state, either by treaty or forced removal,” he says, adding that acknowledging the difficult past must be a part of conversations about the future.
Those conversations include state, regional, and federal-level water planning. The Colorado tribes are engaged in Colorado’s basin roundtable process, with both tribes occupying seats on the Southwest Basin Roundtable, says Greg Johnson, who heads the Colorado Water Conservation Board’s Water Supply Planning Section (and serves on the Water Education Colorado Board of Trustees). Through the roundtables, local stakeholders conduct basin-wide water planning that is eventually integrated into the statewide Colorado Water Plan. However, until recently, tribal involvement in regional Colorado River negotiations between the seven U.S. basin states and federal government has been nonexistent. Change is brewing—a 2018 federal Tribal Water Study highlighted how tribal water resources could impact Colorado River operations, while a new Water and Tribes Initiative is working to build tribal capacity and participation in water negotiations throughout the basin.
“The Utes have been in what we call Colorado for the last 10,000 to 12,000 years,” House says. “It would be a shame if we were left out of the conversations [about water].”
The External Costs of Industry
Government is vital to addressing the legacy of environmental injustice, and preventing future problems, but finding solutions also demands reconsidering how business is done.
Consider Colorado’s relationship with the extraction industry, visible in the 19th-century mines that pock mountain towns, uranium-rich communities like Nulca, and the escalation of oil and gas drilling today. Colorado is an “epicenter” of extraction and environmental justice issues, says Stephanie Malin, associate professor at Colorado State University and a sociologist who studies energy development and extraction.
Lack of local control in the past has been especially frustrating, Malin says, since private corporations earn profits off the resources but then outsource the impacts. In the end, extractive industries have a track record of leaving communities and governments to bear the costs of cleanup.
Take Gold King Mine as one high-profile example. In August 2015, wastewater from an abandoned mine in San Juan County contaminated the Animas River between Silverton and Durango. Contractors hired by EPA accidentally caused 3 million gallons of mine waste, laden with heavy metals, to wash into the Animas. New Mexico, Utah, and the Navajo Nation all filed to sue EPA, with farmers reporting that they couldn’t water their crops and others saying they had to truck in alternative water supplies. But those responsible for the contamination were long-gone. Like tens of thousands of other mines in the region, the Gold King Mine was abandoned in the early 20th century.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—more commonly called Superfund—which Congress passed in 1980, was originally set up as a “polluter tax” on oil, gas and chemical companies at risk of contaminating communities or the environment. But Congress never reauthorized the tax, which expired in 1995. By the early 21st century, the fund was bankrupt. Today, these cleanups are funded entirely by taxpayers.
“It’s part of a bigger pattern of privatizing profit and nationalizing, or socializing, risk,” Malin says. “Then, communities and the environment are left holding the ‘external’ costs.” Those external costs, she says, are nearly unquantifiable: “The intergenerational impacts in particular are so hard to gauge, in terms of what the communities are absorbing.”
While these problems can seem intractable, there are solutions, Malin says. For example, the bond amounts companies are required to pay up-front should better reflect the actual cost of cleanup, she says. Last year, Colorado lawmakers made strides to unburden taxpayers in just that way, with an update to Colorado’s old mining law.
The new Colorado law, HB19-1113, makes sure water quality impacts from mining are accounted for and long-term impacts are avoided. The law says that the industry can no longer self bond—a practice that allowed mine operators to demonstrate they had the financial resources to cover clean-up costs rather than providing the resources up front. Without self bonding, taxpayers won’t be left paying for remediation if the company goes bankrupt. It also requires mine operators to factor water quality protection costs into their bond—and requires most to develop a water quality treatment plan. This means that reclamation plans must include a reasonable end date for any needed water quality treatment, hopefully ensuring Colorado will avoid new perpetually polluting mines.
State lawmakers are currently looking at a more encompassing environmental justice bill, HB20-1143, introduced in January 2020. At press time the bill was still under consideration. If it moves forward as introduced, the bill would increase the maximum civil fine for air and water quality violations—from $10,000 per day to $47,357 per day, which would be adjusted annually according to the consumer price index—reallocating some of the financial burden back on polluters. It would also authorize the use of the money in the state’s water quality improvement fund, which is where those water quality violation fines go, to pay for projects addressing impacts to communities. The bill would also bolster the state’s environmental justice efforts, with a new environmental justice advisory board and environmental justice ombudsperson who would run the advisory board and advocate for environmental justice communities.
Speaking up for Tomorrow’s Climate
Environmental justice can’t be about a single issue, says Lizeth Chacón, executive director of the Colorado People’s Alliance, a racial-justice, member-led organization based in Denver and Pueblo. That means looking at water-focused environmental justice alongside related issues such as climate change, racial justice, inequities, poverty, housing, power dynamics, and more.
“When we are talking to our members, we are talking to them about the fact that they are working two jobs and still cannot put dinner on the table in the week, talking that they live in fear of being deported and being separated from their families, talking about the fact that they are sick, or have headaches, or have to spend money on water because they can’t drink the water coming out of their tap like other people can,” she says. “It can’t be seen as one issue … This work has to be holistic.”
Currently, the Colorado People’s Alliance is working on a climate campaign directed by its members in Commerce City. “They said, ‘This is something that’s impacting all of us, regardless of where we’re from, whether we’re undocumented or documented, what our economic status is,’” she says. The Alliance is focused on greenhouse gas emissions, which have immediate health impacts and long-term water effects.
Another approach in northeast Denver is proceeding thanks to an EPA environmental justice grant, in which organizers will convene youth, local leaders, and scientists to create a community science project that leads to a more fishable and swimmable Denver South Platte River. The river flows through Elyria-Swansea and Globeville, but it used to be a dumping ground, with a landfill beside its banks. Clean ups and improved recreational access, much of which has been spearheaded by the nonprofit Greenway Foundation since its founding in 1974, have created opportunities for kayakers downtown, but river access in northeast Denver, beyond the popular Confluence Park, is limited. In addition, E. Coli levels are often high, making swimming inadvisable. Access to a healthy waterway makes communities more vibrant and whole, supporting health, wellbeing, recreation, and cultural and spiritual practices, but also connection. This may be the only recreational water access available to some urbanites.
“Rivers are one of the major pathways to healing the environment and healing ourselves,” said Jorge Figueroa at an initial workshop for this project in December 2019, where they began to establish a youth advisory board. Figueroa runs El Laboratorio, an organization that brings people together from different disciplines and cultures to creatively solve environmental challenges. (He is also on the Water Education Colorado Board of Trustees.) He’s working on this project with Lincoln Hills Cares, a nonprofit that provides outdoor education, recreation and experiences to youth who may not otherwise have these opportunities; and Colorado State University, which is developing a new campus at the National Western Center, called Spur, in the neighborhood. The partners expect to have a plan ready by the end of 2020, and the project should begin in 2021.
Figueroa, who grew up and has family in Puerto Rico, also witnessed, up close, the wave of climate refugees who left his home state after Hurricane Maria devastated it in 2017.
“It’s critical for us to invest in climate-resilient infrastructure and in the reliability of our municipal potable water systems,” Figueroa says. “But from an equity perspective, we need to ensure that the more than a trillion dollars that will be invested in the nation’s public water systems provide the most benefit to the most people.” His suggestion to build climate resiliency in an equitable way: water conservation. “Water conservation can be a supreme water equity tool: It provides cheaper water for the community and more resiliency and reliability for the system. It’s not only an ideal climate change adaptation strategy but also is one of the top, by far, equity water strategies.” When you don’t consider equity in water decisions, you can make vulnerable communities more vulnerable, he says.
Whether working to improve environmental justice structurally and physically through conservation and resiliencies, or politically and financially through new regulations, bonding or taxation, there are many opportunities to do better. But there are also social justice elements to work on. Chacón recommends involving community members at the beginning of a process—not at the end. She says it’s important to listen—and to not dismiss people when they disagree.
Looking forward, it’s up to everyone in positions of power to actively create space for disadvantaged communities to lead, says Chacón. “To us, the people who are closest to the pain are the ones closest to the solution because they know what’s happening in their community best of anyone.”
Some of the principles of engaging communities in these situations are “almost universal,” says Colorado’s Michael Wenstrom, an environmental protection specialist in EPA’s Environmental Justice Program. Wenstrom worked in Flint over the course of a year following the water emergency, “assisting them to connect with processes, in understanding what their rights are, and helping them learn how to raise their voices effectively,” he says.
He says that where communities and families are already overburdened—with poverty, crime, racism—they often don’t have time, expertise or resources to recognize the problems, nevermind address them. “In addition, people in low-income communities may be less inclined to raise their voices for various reasons,” Wenstrom says. Reasons could include racism, job discrimination, or, for some, the fear of being identified as an illegal resident.
He says officials like him who come into communities as outsiders must be careful, persistent, and work to build trust. “As trust builds, we can then start pointing people toward tackling issues related to pollution or public health,” he says. But, Wenstrom cautions, if people don’t believe they can make a difference, they won’t raise their voices in the first place.
Laura Paskus is a reporter in Albuquerque N.M., where her show, “Our Land: New Mexico’s Environmental Past, Present and Future,” airs on New Mexico PBS. Caitlin Coleman is editor of Headwaters magazine.
A new analysis confirms drinking water or groundwater contamination at 328 installations across the country that have levels of “forever chemicals” that never break down and pose health risks.
Three of those incidences of contamination were confirmed in Utah including at Hill Air Force Base, Camp Williams and the Salt Lake City International Airport…
While these water samples may be confined to groundwater, the organization emphasized concerns over the adequacy of treatment for private wells and noncommunity providers that deliver water to a variety of facilities that include campgrounds.
Another four sites in Utah — all military — are suspected of having levels of forever chemicals because of the Pentagon’s use of a particular type of firefighting foam…
Testing of drinking water systems in Utah showed no levels of the chemicals above the EPA standard and there is no history of the chemicals being manufactured in Utah, according to the agency.
The environmental nonprofit’s analysis found more than 100 sites in California that were potentially discharging PFAS into air or water in the process of manufacturing sheet metal for planes, paint, semiconductors, petroleum products and numerous other goods.
Many of these sit clustered in the Los Angeles metropolitan area. Several sites that are believed to be releasing PFAS were found farther east near Riverside and San Bernardino.
EWG and some politicians accused the U.S. Environmental Protection Agency of falling asleep at the wheel and failing to police industries that have been producing these chemicals since the 1940s.
“We’ve seen a systematic approach by the Trump administration to decimate the EPA’s obligations under the legislation that has previously been passed,” Rouda said.
In February 2019, the EPA unveiled its PFAS Action Plan to begin addressing contamination. This February, the EPA published an update, which said it was partnering on cleanup efforts in 30 states and Washington, D.C., and that it was making $15 million available for more research.
Here’s the release from Wild Earth Guardians (Rebecca Sobel):
Response to Trump Administration’s Plan to Relax Public Health Protections for Oil Refineries and Other Industries
WildEarth Guardians joined a coalition of environmentalists objecting to the Environmental Protection Agency (EPA) new Trump administration policy that relaxes environmental compliance rules for petrochemical plants and other big polluters during the coronavirus crisis.
“Relaxing pollution controls in the midst of a deadly health crisis is an obscene new low for the Trump administration,” said Rebecca Sobel, Senior Climate and Energy Campaigner for WildEarth Guardians. “While the pandemic worsens, the administration is propping up polluters in poisoning clean air, instead of focusing on the health and safety of Americans.”
The environmental organizations voiced their concerns in response to an announcement yesterday that the Trump administration EPA will “provide enforcement discretion under the current, extraordinary conditions.”
“It is not clear why refineries, chemical plants, and other facilities that continue to operate and keep their employees on the production line will no longer have the staff or time they need to comply with environmental laws,” said the statement, which was written by Eric Schaeffer of the Environmental Integrity Project, former Director of Civil Enforcement at EPA.
The Environmental Integrity Project released a report last year documenting the sharp drop in environmental enforcement during the Trump administration.
In February, WildEarth Guardians joined the Environmental Integrity Project in publishing a report documenting EPA air monitoring data at the fencelines of oil refineries which demonstrated excessive release of cancer-causing benzene into nearby communities at concentrations far above federal action levels. The second worst refinery in the U.S. was the Holly Frontier Navajo Artesia refinery in Artesia, New Mexico, where monitors at the plant’s fenceline detected benzene in amounts four times the EPA action level.
“Instead of reining in illegal polluters, this administration is propping them up, further endangering the health of New Mexicans and all Americans in the process,” continued Sobel. “We are all in this together, and now is the time to protect people, not polluters.”
FromThe High Country News [March 31, 2020] (Oliver Milman and Emily Holden):
The decision has caused an uproar among former agency officials.
This story was originally published by the the Guardian and is reproduced here as part of the Climate Desk collaboration.
The United States Environmental Protection Agency (EPA) has suspended its enforcement of environmental laws during the ongoing coronavirus outbreak, signaling to companies they will not face any sanction for polluting the air or water of Americans.
In an extraordinary move that has stunned former EPA officials, the Trump administration said it will not expect compliance with the routine monitoring and reporting of pollution and won’t pursue penalties for breaking these rules.
Polluters will be able to ignore environmental laws as long as they can claim in some way these violations were caused by the Covid-19 pandemic. In the event of an imminent threat to public health, the EPA will defer to the states and “consider the circumstances” over whether it should intervene.
There is no end date set for this dropping of enforcement.
Andrew Wheeler, administrator of the EPA, said that coronavirus had made it difficult for businesses to protect workers and the public while adhering to clean air and water rules.
“This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment,” Wheeler said.
The new stance has caused uproar among former EPA officials and environmental groups who warn that the sweeping will pose a further risk to public health amid the pandemic.
“EPA should never relinquish its right and its obligation to act immediately and decisively when there is threat to public health, no matter what the reason is,” said Cynthia Giles, who was head of EPA enforcement during the Obama administration.
“I am not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo. This memo amounts to a nationwide moratorium on enforcing the nation’s environmental laws and is an abdication of EPA’s responsibility to protect the public.”
A letter sent to the EPA by Giles and a number of other environmental advocates states that while it may be “reasonable in limited circumstances” to relax certain enforcement during the crisis, the blanket waiver of environmental requirements poses a danger to the American public.
There is particular concern over air pollution emitted by industrial facilities, which are predominantly located in communities with large numbers of low-income people and people of color. Covid-19 attacks the respiratory system, with its spread causing states to scramble for more ventilators to prevent thousands of infected people from dying.
The air pollution that industrial plants will not have to monitor damages the respiratory system, which is especially dangerous for already at-risk populations who may also become infected with Covid-19, which attacks the lungs.
“Excusing the potential release of excess toxic air pollutants and other pollution that exacerbates asthma, breathing difficulty and cardiovascular problems in the midst of a pandemic that can cause respiratory failure is irresponsible from a public health perspective,” the letter states.
“This is not about reporting and paperwork,” said Eric Schaeffer, executive director of the Environmental Integrity Project.
“If you’re flying blind because you’re not monitoring for pollution and the public’s flying blind because you’re not reporting it, a lot of problems that come to light when you do those things are going to stay hidden,” Schaeffer said.
In one example, oil refineries will not be compelled to report on and reduce their carcinogenic benzene emissions. Ten refineries, most of them in Texas, have already been exceeding limits.
The relaxation of environmental laws follows lobbying from the American Petroleum Institute, an oil and gas industry group, which sent the EPA a letter this week calling for the suspension of rules requiring repair of leaky equipment as well as monitoring of pollution.
The EPA’s move goes even further than this request, although the regulator said it expects businesses will comply with laws “where reasonably practicable” and that it will not tolerate flagrant, intentional breaches of the law.
However, Michael Brune, executive director of Sierra Club, indicated that the move may be challenged in the courts. “While there may be no limit to the lengths Trump and Wheeler are willing to go for corporate polluters, there is a limit to what the public will allow,” Brune said. “This illegal and reckless action will not go unchecked.”
Oliver Milman and Emily Holden are environment reporters for Guardian US. Email High Country News at firstname.lastname@example.org.
The Environmental Protection Agency on Thursday announced a sweeping relaxation of environmental rules in response to the coronavirus pandemic, allowing power plants, factories and other facilities to determine for themselves if they are able to meet legal requirements on reporting air and water pollution.
The move comes amid an influx of requests from businesses for a relaxation of regulations as they face layoffs, personnel restrictions and other problems related to the coronavirus outbreak.
Issued by the E.P.A.’s top compliance official, Susan P. Bodine, the policy sets new guidelines for companies to monitor themselves for an undetermined period of time during the outbreak and says that the agency will not issue fines for violations of certain air, water and hazardous-waste-reporting requirements.
Companies are normally required to report when their factories discharge certain levels of pollution into the air or water.
“In general, the E.P.A. does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the E.P.A. agrees that Covid-19 was the cause of the noncompliance and the entity provides supporting documentation to the E.P.A. upon request,” the order states.
It said the agency’s focus during the outbreak would be “on situations that may create an acute risk or imminent threat to public health or the environment” and said it would exercise “discretion” in enforcing other environmental rules.
The order asks companies to “act responsibly” if they cannot currently comply with rules that require them to monitor or report the release of hazardous air pollution. Businesses, it said, should “minimize the effects and duration of any noncompliance” and keep records to report to the agency how Covid-19 restrictions prevented them from meeting pollution rules…
Gina McCarthy, who led the E.P.A. under the Obama administration and now serves as president of the Natural Resources Defense Council, called it “an open license to pollute.” She said that while individual companies might need flexibility, “this brazen directive is nothing short of an abject abdication of the E.P.A. mission to protect our well being.’’
Cynthia Giles, who headed the E.P.A. enforcement division during the Obama administration, said: “This is essentially a nationwide waiver of environmental rules. It is so far beyond any reasonable response I am just stunned.”
The EPA is involved in multiple PFAS-related criminal investigations, the agency said Wednesday, adding another knot to an already complex legal landscape for “forever chemicals.”
The Environmental Protection Agency acknowledged the probes in a new progress report on its 2019 PFAS Action Plan. The document says the agency “has multiple criminal investigations underway concerning PFAS-related pollution.”
EPA Administrator Andrew Wheeler told Bloomberg Law the agency is committed to using all its enforcement authorities to address contamination.
“We do use all of our enforcement tools, so if it’s warranted for criminal, we would certainly look to do that,” he said after a National Association of State Department’s of Agriculture event in Arlington, Va.
Wheeler declined to give further detail, saying he couldn’t comment on pending investigations. Federal criminal investigations and related files are confidential.
“Multiple investigations clearly signals EPA is serious about understanding what the manufacturers knew about the chemicals’ toxicity and when they knew it,” said Earth & Water Law Group founder Brent Fewell, an EPA official during the George W. Bush administration. “EPA is likely focused on whether the PFAS manufacturers knowingly failed to disclose to EPA the known risks of the chemical.”
“It’s not at all surprising,” he added, “that EPA has signaled a criminal investigation or even multiple investigations into PFAS given the heightened health concerns and public attention.”
The Santa Fe River starts high in the forests of New Mexico’s Sangre de Cristo mountains and flows 46 miles to the Rio Grande. Along the way it plays important roles for wildlife, irrigation, recreation and other cultural uses, and provides 40% of the water supply for the city of Santa Fe’s 85,000 residents.
But some stretches of the river don’t flow year-round, and that means parts of this vitally important water system could lose federal protections under changes to clean-water rules just passed by the Trump administration.
The administration’s new Navigable Waters Protection Rule replaces the Obama-era Waters of the U.S. (or WOTUS) rule that defined which waterways were protected under the Clean Water Act. The Obama administration broadened and clarified which waters were safe, but the new rule takes a much narrower view. Under the changes many waterways lose federal protection. That includes ephemeral streams and rivers that depend on seasonal precipitation — like parts of the Santa Fe — as well as waters that cross state boundaries and wetlands that aren’t adjacent to major water bodies.
This loss of protections means pesticides, mining waste, and other pollutants can be dumped into these streams and unconnected wetlands can be filled for development without running afoul of federal authorities…
The rule flies in the face of basic science about river ecology and groundwater, according to the Environmental Protection Agency’s own scientists. Even if streams don’t flow all the time or wetlands don’t touch major bodies of water, dumping pollutants into them can still harm the watershed — and by extension drinking water and wildlife.
The Trump administration promised these changes would offer more control to states, but many state officials say they find the new rules problematic, confusing and potentially dangerous.
“One of our biggest concerns with the final rule is that it’s not rooted in sound science,” says Rebecca Roose, water protection division director of the New Mexico Environment Department. “And there was really no attempt by the agency to reconcile the final rule with the scientific basis for the 2015 WOTUS rule and advice from the scientific community.”
While these changes will be felt in every state, they won’t be felt equally.
One Year After EPA Pledged to Act on PFAS Exposure, Key Parts of the Strategy Have Yet to Be Implemented
Today, Colorado U.S. Senator Michael Bennet joined a group of senators in a letter to Environmental Protection Agency (EPA) Administrator Andrew Wheeler requesting he provide an updated timeline for when the EPA will implement commitments made in the agency’s plan to combat exposure to per- and polyfluoroalkyl substances (PFAS). The EPA released its PFAS Action Plan one year ago today and has yet to implement many of the commitments outlined in the strategy. Bennet, who raised concerns about flaws in the EPA’s initial plan, is an author of the PFAS Action Plan of 2019 and has long worked to address contamination issues across Colorado.
“As you are aware, communities across the country are struggling to respond to the widespread issue of PFAS contamination. The human health risks from this class of chemicals, which include birth defects, various forms of cancer, and immune system dysfunction, are still being examined, and the uncertainty has caused great concern among our constituents,” wrote Bennet and the senators in the letter.
The lawmakers went on to underscore that the PFAS Action Plan alone is insufficient to address the full scope and urgency of the problems associated with PFAS exposure, which is why failure to take an initial step to implement this plan is particularly concerning. They also highlighted that the EPA committed to establish federal drinking water standards last year for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most prevalent PFAS chemicals, but have also failed to follow through on that pledge.
In their letter, the senators also addressed other parts of the plan that have not been prioritized, including important remediation efforts to help expedite cleanup of PFAS contamination under the EPA Superfund law.
“Yet, despite then-Administrator Scott Pruitt committing the EPA to designating these materials [PFOA and PFOS] as hazardous substances in May 2018, the EPA has not even sent a proposal to the Office of Management & Budget for interagency review, let alone published it for public comment,” wrote Bennet and his colleagues.
The senators closed their letter with a request that the EPA provide an update on the status of every commitment made in the PFAS Action Plan, as well as an update on the timeline for executing the priorities included in the strategy.
Bennet has long worked to address the health effects, cleanup, and reimbursement issues associated with PFAS, chemicals used in firefighting foams that have contaminated drinking water sources near military bases across the country, including at Peterson Air Force Base (AFB) in Colorado Springs.
Bennet pushed for a nationwide study on the health effects of PFAS and for additional funding for remediation and clean up.
Bennet secured $10 million for the nationwide Centers for Disease Control and Prevention (CDC) study in the 2018 omnibus package.
Bennet secured an additional $44 million in funding for Air Force environmental restoration and remediation in the 2018 omnibus package. A significant amount of that funding was used for remediation around Peterson AFB in Colorado.
Bennet supported a provision in the Fiscal Year 2018 National Defense Authorization Act (NDAA) that required a plan on how the Department of Defense might reimburse state or municipal agencies that expended funds to provide alternative water supplies.
Bennet wrote to the CDC to ask that the nationwide study include communities in Colorado near Peterson AFB.
Bennet visited communities around Peterson AFB to receive an update on remediation efforts. There, Bennet also received an update on the challenges water districts are having receiving reimbursement for steps they took to clean up drinking water.
Bennet demanded the Trump Administration (CDC and the Agency for Toxic Substances and Disease Registry (ATSDR)) release the results of a study regarding what levels of certain chemicals are safe in drinking water. According to news reports at the time, the EPA had been working to block the release of results from a Department of Health and Human Services (HHS) study on the toxicity of certain PFAS.
Bennet passed an amendment to provide funding for the Department of Defense to reimburse state and municipal water authorities for actions they took to clean up and mitigate PFAS in drinking water. The amendment was included in the Department of Defense-Labor-Health and Human Services-Education Appropriations bill, which passed the Senate in 2018. The provision was not included in the final version of the bill that was signed into law.
Bennet wrote to the CDC/ATSDR to voice disappointment that the CDC will not include military and civilian firefighters in its investigations of the human health effects of PFAS contamination pursuant to Section 316 of the FY19 NDAA.
Bennet and his colleagues introduced the PFAS Action Plan of 2019, legislation that would mandate the EPA, within one year of enactment, declare PFAS as hazardous substances eligible for cleanup funds under the EPA Superfund law, and enable a requirement that polluters undertake or pay for remediation.
Bennet introduced an amendment to the NDAA to authorize the U.S. Air Force to reimburse local water districts, like those around Peterson AFB, for actions they took to treat and mitigate PFAS contamination.
Following Bennet’s 2018 letter calling on the CDC to include Colorado communities near Peterson AFB in the nationwide study on the health effects of PFAS, Bennet praised the agency’s decision to include these communities.
More than 12,000 El Paso County water users have been impacted by the chemical, which tainted the Widefield aquifer.
In 2016 the EPA lowered its health advisory levels for the compounds, vastly expanding the number of southern El Paso County residents considered at risk for exposure. A subsequent study tied the contamination to the decades-long use of a firefighting foam at Peterson Air Force Base.
Water districts in the towns of Security, Widefield and Fountain have either tied into uncontaminated water from Colorado Springs Utilities, or installed filtering systems to eliminate the chemicals.
In the letter, the senators say they believe the agency has not acted quickly enough to make water safe…
The lawmakers are asking for the EPA to prioritize the establishment of a maximum contamination level for drinking water and to allow cost-recovery for cleanup by labeling PFAS as hazardous substances.
A new court document states that progress continues toward resolving an environmental lawsuit against Colorado Springs for degrading Fountain Creek.
The document was filed last week in Denver at the U.S. District Court for Colorado, where the lawsuit is pending.
“The parties have continued to make significant progress toward a settlement that encompasses an agreement for relief for all violations alleged,” the court filing states…
After a trial last year, a judge decided Colorado Springs had violated its permit that regulates discharges of the city’s storm water sewer system into the creek. Remaining to be decided is what the city would do to remedy the violations.
The new document states that since October, the five parties have been exchanging drafts of a proposed agreement on how to settle the dispute.
“The parties have met monthly (since November and) continued to have monthly scheduled settlement meetings so that they can continue their progress toward (a settlement),” the document states.
Last week, Senior Judge John L. Kane granted the parties’ request to keep the case on hold until May 22, so they can continue their work. Kane is presiding over the case.
He emphasized, however, he would not keep the case on hold beyond May 22 based on the same grounds that the parties have been stating.
FromThe High Country News, February 12, 2020 (Jonathan Thompson):
Three years of rollbacks have taken a toll, without delivering real benefits.
“I’m approving new dishwashers that give you more water so you can actually wash and rinse your dishes without having to do it 10 times,” President Donald J. Trump told a crowd in Milwaukee in January. “How about the shower? I have this beautiful head of hair, I need a lot of water. You turn on the water: drip, drip, drip.”
While this may sound like just another Trumpism intended to distract his base from his impeachment troubles, the words nicely encapsulate the administration’s disastrous approach to environmental policy. First, he gins up a false problem. Then he blames the false problem on “regulatory burdens.” Then he wipes out said regulations with complete disregard for any actual benefits or the possible catastrophic consequences.
Trump followed this pattern in January, when he announced one of his most significant rollbacks yet, a drastic weakening of the National Environmental Policy Act, or NEPA — the bedrock law passed during the Nixon era that requires environmental reviews for projects handled by federal agencies.
Trump said the overhaul is necessary because the law imposes interminable delays on infrastructure projects, hampering economic growth. “It takes many, many years to get something built,” he said in an early January speech at the White House. “The builders are not happy. Nobody is happy. It takes 20 years. It takes 30 years. It takes numbers that nobody would even believe.”
Maybe nobody would believe them because — like Trump’s assertion that modern toilets must be flushed “15 times” — they simply aren’t true. Every year, the nonpartisan National Association of Environmental Professionals analyzes the implementation of NEPA. The group has found that over the last decade, full environmental impact statements have taken, on average, less than five years to complete. Only about 5% of all reviews take longer than a decade, and less than 1% drag on for 20 years or more. These rare cases can be caused by a project’s complexity, or by delays or changes made by its backers that have nothing to do with NEPA or any other environmental regulations.
Trump isn’t letting facts get in his way, however. The proposed changes would “streamline” reviews, according to the administration, and, most notably, “clarify that effects should not be considered significant if they are remote in time, geographically remote, or the result of a lengthy causal chain.”
A project’s potential contribution to climate change, in other words, would be discounted. Indeed, environmental effects will no longer be considered significant — except for the most direct, immediate ones. A proposed highway plowing through a low-income neighborhood, for example, would result in more traffic, leading to more pollution, leading to health problems for residents and exacerbating global warming. But since all of that is “remote in time” and the result of a “lengthy causal chain,” it would not necessarily be grounds to stop or modify the project. By discounting long-term and cumulative impacts, this seemingly simple change would effectively gut a law that has guided federal agencies for a half-century.
That, Trump claims, will speed up approvals and create more jobs. But a look back at the effects of his previous regulatory rollbacks suggests otherwise.
Since the moment he took office, Trump has been rescinding environmental protections. He drastically diminished Bears Ears National Monument, he tossed out rules protecting water from uranium operations, he threw out limits on methane and mercury emissions, weakened the Clean Water Act, and, more recently, cleared the way for the Keystone XL pipeline, yet again. According to Harvard Law School’s regulatory rollback tracker, the Trump administration has axed or weakened more than 60 measures that protect human and environmental health since he took office.
Trump often boasts that his policies have created 7 million jobs during his term. Correlation, however, does not equal causation. Even as the overall economy has boomed — a trend that was already in place when Trump took office — the sectors that should have benefited the most from Trump’s rollbacks continue to flail.
Trump killed or weakened at least 15 regulations aimed at the coal industry in hopes of bringing back jobs. By nearly every measure, the industry is weaker now than it was when Trump was elected. Trump shrank Bears Ears National Monument to make way for extraction industries and rescinded regulations on uranium in part to help Energy Fuels, a uranium company. But in January, the company laid off one-third of its workforce, including most of the employees at the White Mesa Mill, adjacent to Bears Ears. Nearly every one of the protections that Trump killed were purportedly “burdening” the nation’s mining, logging and drilling industries. Regardless, the number of people working in that sector is down 20% from five years ago.
Rolling back environmental regulations will no more create jobs than removing “restrictors” from showerheads will give Donald Trump a thick head of hair — it won’t. It will merely result in more waste, dirtier air and water, and a more rapid plunge into climate catastrophe.
Now, Trump is going after energy-efficient lightbulbs, and his reasoning is as specious as ever. “The new lightbulb costs you five times as much,” he told his followers at the Milwaukee rally, “and it makes you look orange.”
Jonathan Thompson is a contributing editor at High Country News. He is the author of River of Lost Souls: The Science, Politics and Greed Behind the Gold King Mine Disaster. Email him at email@example.com.