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 firstname.lastname@example.org 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 email@example.com.
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 firstname.lastname@example.org.
Activists with a wide range of conservation and indigenous-rights groups had been bracing themselves for a fight over a critical environmental-protection law known as the National Environmental Policy Act, or NEPA, since soon after President Donald Trump took office three years ago. But they were caught off-guard by the specifics of what the White House’s Council on Environmental Quality proposed when it unveiled its plan to “modernize” NEPA regulations last month — including an abbreviated outreach process that featured just two hearings where the public would have an opportunity to comment on proposed changes.
“It’s unprecedented,” says Jeremy Nichols, an activist with environmental group WildEarth Guardians. “This is sweeping. This isn’t some little tweak of an air regulation or a rule that affects only a specific sector. This affects all aspects of American life. You can draw a line between any person here and a relevant, recent NEPA process — I-70, Rocky Flats, there’s so much.”
For Nichols and other Colorado-based activists, there was one small consolation: They didn’t have to travel very far to speak at the first of the two public hearings, which was held at the Environmental Protection Agency’s regional headquarters in Denver on Tuesday, February 11. There, CEQ officials outlined their plan to dramatically weaken NEPA regulations, which require federal agencies to perform extensive reviews of the environmental impacts of major industrial and infrastructure projects.
“The proposed rule is proposed to modernize and clarify the CEQ regulations to facilitate more effective, efficient and timely NEPA reviews by federal agencies,” said Ted Boling, associate director of NEPA policy at CEQ. “The revisions are intended to make the regulations easier to read, understand and follow.”
But activists say that’s just code for undermining environmental protections at the behest of powerful industry groups. As laid out by Boling, the new rules would make sweeping changes to the NEPA process, imposing time and page limits on key environmental reports, limiting the scope of many reviews and increasing the number of projects that could be excluded from the process altogether.
Because NEPA reviews include extensive public comment processes, the changes could prevent impacted communities from weighing in on proposals with potentially serious environmental implications. That’s particularly troubling to Native Americans who have long been victimized by the federal government, said indigenous activists who spoke during a public comment period on February 11.
“I think that the proposed changes are a slap in the face to our democracy, and a slap in the face to the integrity of our mother earth,” said Lyla June Johnston, an activist and member of the Diné (Navajo) Nation. “The policies of Trump tend to favor business, and they are willing to expedite business at the expense of the health of our water, our ecology and future generations.”
Supporters of the proposed change included representatives of the U.S. Chamber of Commerce, oil and gas groups and other industrial interests, who argued that NEPA reviews have become too lengthy and burdensome…
For full NEPA reviews, federal agencies prepare lengthy documents known as Environmental Impact Statements that examine the potential effects on public health, safety, air and water quality, natural landscapes, wildlife, noise and more. The Trump administration’s proposed rule changes would limit the scope of the impacts that such reviews could evaluate — especially with respect to climate change, said Colorado Energy Office director Will Toor, who testified in opposition at the February 11 hearing and was especially critical of a section in the revised rule that instructs federal regulators not to consider environmental effects “if they are remote in time, geographically remote, or the product of a lengthy causal chain.”
“This language appears to be surgically designed to eliminate consideration of climate impacts, since these are precisely caused by the cumulative impacts of emissions greenhouse gases,” Toor said. “Our agency is particularly concerned about decisions the federal government may make about energy and transportation infrastructure, or about fossil-fuel development on federal public lands in Colorado, that could undermine our state policy goals and harm residents.”
Toor was one of four members of Governor Jared Polis’s cabinet to testify against the proposed changes. But despite hours of testimony from state agency heads, elected officials, dozens of grassroots activists and other speakers from across Colorado and the West, activists fear that their voices will matter less to the Trump administration than the handful of highly paid lobbyists who expressed their support…
As hearings continued throughout the day inside the EPA’s Denver office, activists from a broad coalition of environmental groups gathered just across the street for a series of rallies outside the Alliance Center, hoping to send a message to Trump and his allies even as they worried that the outcome of its abbreviated public outreach process is preordained.
“We have no illusions that we’re going to show up and change CEQ’s mind, but at least we can demonstrate the political power here,” Nichols says. “We want the Trump administration to regret they ever decided to hold a hearing in Denver.”
The political fight over the Trump administration’s efforts to trim environmental reviews for new development flared across a deep divide Tuesday at a federal hearing in Denver, with climate change looming heavily and frustrations high.
It pitted a large coalition of state and local government leaders, tribal activists and community groups against powerful commercial interests led by construction, real estate, trucking and fossil fuel developers.
On one side, as a White House Council on Environmental Quality panel held its only field hearing outside Washington, D.C., those in favor of “modernizing” reviews under the National Environmental Policy Act, or NEPA, lamented the “weaponizing” of this 50-year-old law to delay pipeline, road, mining and other projects where federal agencies play a decision-making role.
“Too often, it is used by groups opposed to projects going through at all,” Western Energy Alliance vice president Tripp Parks said, referring to efforts to drill on public land to extract oil and gas.
Colorado Motor Carriers Association president Greg Fulton pointed to delays on road expansion projects, saying “congestion on our nation’s highways now costs the trucking industry $70 billion annually.”
An environmental review for the $1.2 billion realignment of Interstate 70 as it cuts across north Denver spanned 13 years, led to five lawsuits and 148 required mitigation efforts that raised the cost by $50 million — evidence of “a broken system,” said Matt Girard, a Denver-based director of the American Road and Transportation Builders Association.
On the other side, WildEarth Guardians attorney Jeremy Nichols countered that “delay is a sign that NEPA is working.” Nichols submitted a petition that he said contained signatures of 15,000 Americans opposed to the proposed NEPA changes.
The 170 or so full reviews launched nationwide each year that require environmental impact statements take, on average, four and a half years to complete, White House officials said. Some 10,000 lesser “environmental assessments” are conducted more quickly…
A preponderance of the 100 people who testified were against the proposed overhaul, including Colorado government leaders and environmental protection advocates. They argued that careful, science-driven reviews, tedious as they can be, are essential for democracy and lead to better decisions. NEPA reviews in Colorado ensured that building I-70 through Glenwood Canyon did not lead to blasting away pristine cliffs and re-channeling the Colorado River as originally planned.
Dozens of other opponents who could not secure tickets to testify, including Denver City Council President Jolon Clark, held rallies outside in a snow-drenched parking lot near the Environmental Protection Agency building where the all-day hearing was held…
Inside the EPA hearing room, Nebraska landowner Jeanne Crumly, facing installation of an oil and gas pipeline from Canada across her land, urged the White House officials to reverse proposed changes that would limit review of indirect impacts that are “remote in time” or place because that could mean reviewers fail to anticipate likely toxic spills and decreasing land values that reduce local government tax revenues.
And a proposed change that would let project developers conduct their own environmental impact studies, while consulting with feds, could give a foreign corporation, such as the pipeline company TransCanada, influence over U.S. federal decisions.
Native Americans led the struggle against streamlining NEPA reviews, which also include restrictions on public comment and a rule that agencies could only consider scientific studies that are deemed “reliable.”
“We sit on the precipice of environmental and ecological collapse… We cannot have an economy on a dead planet,” said Navajo musician and poet Lyla June Johnston.
Navajo high school student Najhozhoni Rain Ben, 17, studying math and aiming for physics and business, drove from her home in Shiprock, N.M., to Denver — joining other out-of-state residents from as far as North Carolina who seized the opportunity to weigh in for comprehensive NEPA reviews.
Crying as she testified, Ben said: “I am no coward. … And we do not care only for ourselves. … This should not be happening. We shouldn’t be talking about this. We should be implementing plans for the future. This is not for the future. This is for profit.”
Colorado Energy Office director Will Toor said the White House-backed changes “appear surgically designed to eliminate consideration of climate impacts.” Toor testified that residents of Colorado and the West disproportionately feel climate warming impacts, including worse droughts, catastrophic wildfires, reduced snowpack, increased 100 degree-plus days and extreme storms.
“The persistent burning of fossil fuels both in and outside our state has altered the climate,” Colorado Department of Natural Resources director Dan Gibbs told the White House officials, urging continued reviews that address wide impacts. Proposed trims of the process would undermine NEPA, Gibbs said.
John Putnam, the Colorado health department’s environmental programs chief, pointed to the ozone air pollution for which Colorado now ranks among the most serious violators of federal air quality health standards as “the ultimate cumulative or indirect impact” because it comes from multiple sources and forms through chemicals mixing in the atmosphere…
White House officials told The Denver Post they will give equal weight to oral testimony and 43,000 or so comments received online as of Tuesday at regulations.gov (docket number CEQ-2019-0003).
Council on Environmental Quality panel member Stuart Levenbach said testimony citing specific proposed changes, such as removal of the words “cumulative effects,” likely would make the most difference as the White House and other federal agencies conduct reviews and consider possible adjustments in their proposed overhaul. A second hearing is set for Feb. 25 in Washington, D.C., and online comments must be sent by March 10.
From the Western Council of Resource Councils via Indian Country Today:
Community leaders from across the Western U.S. traveled to Denver, Colorado today to testify at a hearing held by the Council on Environmental Quality (CEQ), the division of the White House charged with implementing the National Environmental Policy Act (NEPA). In the public hearing, farmers, ranchers, tribal members, environmental experts and others from across the West turned out in force to tell the Council on Environmental Quality that the National Environmental Policy Act’s public comment process promotes public participation in government decision-making, and should be strengthened, not weakened. Those testifying told the Council on Environmental Quality that the National Environmental Policy Act fosters better government decisions and prevents harm to the environment and public health.
Mark Fix, rancher and Northern Plains Resource Council leader from Miles City, Montana, spoke about how he and other ranchers mobilized during a National Environmental Policy Act review to oppose a coal railroad that jeopardized their private property rights and ranching operations. “Thanks to the National Environmental Policy Act, landowners and irrigators who live along the Tongue River are safe from having the railroad condemn their property. However, if the National Environmental Policy Act is changed, the railroads and coal companies could literally force their way across our property and our public lands and develop a railroad and a coal mine that are not needed. We must protect the land and water for future generations. Without the National Environmental Policy Act there will be little hope that citizens can protect the land and water that we need to survive.”
“The National Environmental Policy Act’s public participation requirements are especially important for landowners and others who are directly impacted by decisions related to oil and gas development, power line construction, pipeline right of ways, and other federal actions that are proposed by private corporations,” said Liza Millett of Laramie, Wyoming, a member of the Powder River Basin Resource Council. “The National Environmental Policy Act is the process by which those of us impacted by these kinds of decisions get to submit comments to the agency. In many cases, public comments result in a better decision. Comments help reduce impacts and often force the agency to look at alternatives and other options that it would not have considered but for the public involvement in the process.”
“For tribal communities like Fort Berthold, which bear the brunt of health problems such as heart disease and asthma from the poorly planned federal projects, the National Environmental Policy Act isn’t just an environmental protection law, it’s a critical tool for ensuring our voice. We cannot afford to lose it.” said Lisa DeVille, a leader with Fort Berthold Protectors of Water and Earth Rights, from Mandaree, North Dakota. “Any law that provides broad opportunities for public participation in government decisions that affect the environment and local communities shouldn’t be rolled back; rather, laws like the National Environmental Policy Act should be embraced and strengthened. The National Environmental Policy Act is one of the only avenues for tribal members to have any input on federal actions.”
“From personal experience, industry dishonesty and agency fear cause document review delays and excessive paperwork,” said Shannon Ansley, Environmental Hydrogeologist and Idaho Organization of Resource Councils member from Pocatello, Idaho. “If the Council on Environmental Quality approves the proposed changes to the National Environmental Policy Act, there will be increased litigation on federal actions, effectively slowing, instead of speeding up, the process of reviews and approval.”
Under the proposed rules, government agencies could ignore the landscape-scale or global impacts of a project, such as climate change; public participation would be reduced to the lowest legal amount; and complex environmental reviews would be subject to arbitrary time and page limits. The proposal also explicitly allows a project applicant, such as a company proposing to mine or drill public minerals or on tribal lands, to prepare its own environmental impact statement and removes the prohibition on hiring contractors that have conflicts of interest, such as financial ties to the applicant.
The Western Organization of Resource Councils (WORC) is a network of grassroots organizations that span seven of the Western states with 15,000 members. Many Western Organization of Resource Councils members live on lands overlying and neighboring federal, tribal, state and privately owned mineral deposits, and experience numerous impacts due to federal mineral production and other federal projects. Headquartered in Billings, Montana, Western Organization of Resource Councils also has offices in Colorado and Washington, D.C.
Northern Plains is a grassroots conservation and family agriculture group that organizes Montanans to protect our water quality, family farms and ranches, and unique quality of life.
The Powder River Basin Resource Council, founded in 1973, is a family agriculture and conservation organization in Wyoming. Resource Council members are family farmers and ranchers and concerned citizens who are committed to conservation of our unique land, mineral, water, and clean air resources.
Gov. Jared Polis and members of the Polis administration released the following statement ahead of a federal field hearing in Denver about the Trump administration’s attempt to roll back the National Environmental Policy Act (NEPA), a bedrock federal environmental law.
“While I would strongly support reasonable NEPA reforms that speed up construction permits and reduce red tape, it is troubling to see the White House instead propose changes that would undermine the fundamental purposes of the law and increase the danger of disasters including pipeline leaks and explosions,” said Governor Polis. “Maintaining the federal role as custodians of our environment – to prevent things like costly pipeline spills and contamination – is critical to ensure we protect our state’s most precious environmental resources that support our economy and our way of life.”
Shoshana Lew, executive director of the Colorado Department of Transportation is set to testify at the hearing today.
“When we look to the history of transportation in America, there are countless places where infrastructure fundamentally changed the shape of communities — be it through roads that connected or disconnected neighborhoods; arterials that bifurcated or circulated urban cores; or beautiful mountain highways that put vacation destinations on the map,” said Director Lew. “Transportation infrastructure can grow our economy, connect, and improve peoples’ lives in so many ways, but it can also carry costs — to the natural landscape, to neighborhoods, or to the air that we breathe. For half a century, NEPA has provided a vital framework for assessing those trade-offs.”
“We support reasonable modernization of the National Environmental Policy Act, but these proposed changes fundamentally undermine the law by willfully blinding agencies to the effects of their actions. They will prevent federal agencies from considering the full consequences of their actions and threaten the quality of Colorado’s air, water and soil. Federal agencies will not adequately consider how federal decisions affect ground-level ozone, greenhouse gases and water pollution,” said John Putnam, director of Environmental Operations at the Department of Public Health and Environment.
Putnam and Colorado Energy Office Executive Director Will Toor will also testify at today’s hearing.
“Colorado has adopted science-based emissions targets designed to align our state with the scale and pace of reductions needed to mitigate the worst of climate impacts,” said Colorado Energy Office Executive Director Will Toor. “We are working with businesses and communities across the state to reduce emissions while seizing the economic benefits and consumer cost savings of clean, zero-emissions electricity. The proposed changes to NEPA essentially eliminate all consideration of climate impacts in federal decision-making and will put us at risk for greater harm to our health, economy, iconic landscapes and quality of life.”
Colorado Department of Natural Resources executive director Dan Gibbs also weighed in.
“Since its passage in 1970, NEPA has allowed the State and citizens of Colorado to play informed, meaningful roles in federal decision-making and resulted in better federal projects though consideration of their broader impacts on Colorado’s natural resources and environment,” said Dan Gibbs, Executive Director, Colorado Department of Natural Resources. “I am concerned that a number of the modifications proposed by the Council on Environmental Quality will undermine the fundamental aspects of NEPA that have made it so successful and result in significant negative impacts to our state’s land, water, wildlife and natural resources.”
Water wells within a one-mile drain path from Buckley Air Force Base will soon be tested for chemicals similar to those that have contaminated water sources adjacent to other military bases across the United States, the state health department and the Air Force announced Friday.
The Air Force Civil Engineer Center and the Colorado Department of Public Health and Environment plan to begin taking sample from wells to the north and west of the base by February 18.
Well owners will be notified by February 10.
The operation seeks to determine whether firefighting foam used in prior years’ aircraft fire training exercises has accumulated to levels deemed unhealthy by the Environmental Protection Agency…
The South Adams County Water & Sanitation District shut down three wells in 2018 after the water supply near Interstate 270 and Quebec Street was found to measure high levels of PFAS. That location is approximately six miles northeast of Buckley.
Owners of wells near Buckley will be notified if testing reveals unacceptable levels of PFAS. In that case, the Air Force said it would immediately provide alternate sources of water, including bottled, and seek permanent resolution through the well owner and regulators.
New tests by Clovis’ water utility show toxic chemicals associated with groundwater contamination from Cannon Air Force Base have been found in the city’s water supply.
According to a letter sent to customers of the utility EPCOR late this week, trace amounts of PFAS, or per- and polyfluoroalkyl substances were found in about 10 percent of the company’s 82 intake wells. In the letter, Clovis operations supervisor Mark Huerta wrote that EPCOR detected the chemicals at levels between four and seven parts per trillion.
In his letter, EPCOR’s Huerta wrote, “None of the sample results came close to EPA’s health-based recommended advisory level. And none of the water EPCOR supplies to you comes from the area surrounding the Cannon plume…”
The presence of the toxic chemicals in the municipal water supply for Clovis, however, raises questions about how the plume might be moving underground, or if other above-ground uses could be spreading contaminated water.
In the letter to customers, Huerta wrote that “there is no health concern,” and added that the wells that sampled positive for PFAS have been taken out of service…
The Air Force and the New Mexico Environment Department have filed suits and countersuits over the PFAS contamination and its cleanup.
In early 2019, the Air Force sued the state, challenging New Mexico’s attempt to force the military to address the PFAS contamination under the hazardous waste permit issued by NMED. In March 2019, New Mexico filed its own complaint against the Air Force, asking a federal District Court judge to order the military to act on and fund cleanup at Cannon and Holloman.
On Jan. 23, the Trump administration finalized a rule that would remove protections for waterways throughout the country, and as much as 70% of Colorado’s water, according to the Colorado Department of Public Health and the Environment…
The new Navigable Waters rule specifies four protected types of waterways: territorial seas and large rivers and lakes; tributaries that flow year-round; lakes and ponds that are connected to larger bodies; and adjacent wetlands. In the West, where many tributaries don’t flow in warm months, and are being drained and diverted due to infrastructure projects, the amount of impacted waterways is likely to be large…
In the face of the Navigable Waters rule and the NEPA rollbacks, it will be up to Western states to ensure appropriate environmental protections are enacted to mitigate the new rules’ impact.
FromThe Grand Junction Daily Sentinel (Dennis Webb):
Denver next week will be the site of one of two public hearings scheduled nationally on controversial proposed changes by the Trump administration regarding how a 50-year-old environmental law is carried out.
The White House Council on Environmental Quality is proposing what it calls an update to the regulations governing how the National Environmental Policy Act is implemented.
The act requires federal agencies to assess the environmental impacts of actions, including public lands management decisions applying to oil and gas leasing and well permitting, grazing and mining, and other uses. The requirement also pertains to construction of roads, bridges, power lines, water projects and other infrastructure, and the act process provides for public input.
The proposal would streamline the act process, consistent with direction from President Trump. This includes creating presumptive two-year time limits for completing environmental impact statements, which on average now take four and a half years to complete, and creating presumptive one-year limits in the case of less-involved environmental assessments.
It also specifies presumptive page limits on these documents. Agencies on average prepare about 170 environmental impact statements a year and about 10,000 environmental assessments.
The proposal also seeks to reduce unnecessary burdens and delays through facilitating the use of environmental assessments versus environmental impact statements, or categorical exclusions from either of these forms of review. Such exclusions are already applied to about 100,000 agency actions a year.
It also would state that analysis of cumulative effects isn’t required under the environmental policy act. Such analysis is sometimes pushed by entities such as conservation and activist groups. A current lawsuit challenging the Bureau of Land Management’s resource management plan for the Grand Junction Field Office alleges a failure to consider cumulative climate impacts of local oil and gas development in combination with other development under the BLM’s national oil and gas program.
Public hearings on the proposed changes are scheduled Tuesday in Denver and Feb. 25 in Washington, D.C.. People were asked to sign up online for free tickets to attend the Denver event, and all tickets for the morning and afternoon sessions were quickly snatched up. That prompted the addition of an evening session, for which tickets also are gone…
In a Natural Resources Defense Council blog, Gilchrist contends the National Environmental Policy Act process has proven important in Colorado, such as in causing the BLM to defer oil and gas leasing in the North Fork Valley in response to public comments, and resulting in the U.S. Forest Service scaling back plans to clearcut aspen on the Grand Mesa, Uncompahgre and Gunnison National Forests.
After results late last year showed water wells in three out of 18 homes in a mountain community west of Boulder had elevated levels of polyfluoroalkyl substances, or PFAS, the county and Colorado Department of Public Health and Environment plan to test the water at 10 additional properties this year.
Ron Falco, safe drinking water program manager for the state of Colorado, said the department and county are in the process of finalizing an a $8,000-contract to continue testing in the Boulder Heights subdivision. The cost will be covered by the CDPHE. Falco said officials hope more water samples will provide answers on the extent of the contamination and bring awareness to residents…
Testing is anticipated to begin mid-February. Results could be ready sometime in March. The testing follows an announcement last year that contaminated water was found in a well at the Boulder Mountain Fire Protection District’s Station 2.
Joe Malinowski, the environmental health, division manager for Boulder County Public Health, said it still is unknown what the source for contamination is…
The three homes that tested above the health advisory of 70 parts per trillion last year, showed combined levels of perfluorooctanic acid, PFOA, and perfluorooctane sulfate, PFOS, at 2,057 parts per trillion, 416 parts per trillion and 200 parts per trillion…
Homeowners who live in the mountain community depend on wells as a source of water…
Many PFAS chemicals found in water have been traced to a type of fire suppressant, called Class B firefighting foam, according to the CDPHE. The foam is used to fight industrial and chemical fires. Benson emphasized in a September meeting that the station does not use this type of foam. Last year, state legislature passed House Bill 19-1279, calling on state health departments to conduct surveys every three years of fire departments to determine use and disposal of the foam.
The CDPHE, county and fire department have worked together to determine which homes should be tested, Falco said. The properties are near the fire station or slightly outside the 1,500-foot radius, according to Malinowski.
Click here to read the January 2020 Western Water News from Audubon. Here’s an excerpt:
Western Water News
UPDATE: New Federal Rule Reduces Protections for Water in the West, Harming People and Birds
The Trump Administration’s revised Waters of the United States rule shrinks the number of waterways protected under the Clean Water Act.
UPDATE (1/23/2020): Today, the Trump Administration announced finalization of rollbacks to the Clean Water Rule. The newly published Navigable Waters Protection Rule removes Clean Water Act protections for many rivers, streams, and wetlands, which could allow them to be altered, degraded or filled without first seeking a federal permit. For example, a large number of streams and wetlands that only flow or are wet for part of the year are now exempt from Clean Water Act protections. Some 138 species and subspecies of birds in the U.S. are designated as “wetland dependent” and many more are threatened by the new rule.
At Audubon, we know the value that wetlands, rivers, lakes, and streams provide to birds. These waterways are critical habitat for the lifecycle of millions of birds, not to mention the millions of people who rely on clean water to drink, bathe, wash, and grow our food.
Riverside forests and wetlands—fed by both continuous and intermittent water sources—are essential for birds, particularly in the arid Southwest.
However, under the 2019 Proposed Revised Definition for Waters of the United States (WOTUS) many waterways that flow for only portions of the year would be excluded from Clean Water Act protections. This means ephemeral waterways like the Rio Puerco in New Mexico, Centennial Wash in Arizona, Milpitas Wash in Southern California’s Imperial County and Chemehuevi Wash in San Bernardino County would no longer be protected. Without WOTUS protections, developers can build in these areas without federal permits, and the waterways and their surrounding environments would be unprotected from potentially harmful discharges. In the past, industrial operators used these dry washes as disposal sites for pollutants, only to end up contaminating the groundwater below.
Along many of the dry washes in the desert Southwest, trees like mesquite, palo verde, and ironwood thrive. When water occasionally flows through these normally dry washes, these thrifty trees take advantage. Along these washes, trees grow tall and into dense desert forests. They support abundant avian life, especially Lucy’s Warblers, Bell’s Vireos, Black-tailed Gnatcatchers, Phainopeplas, and Ladder-backed Woodpeckers. These woodlands comprise only five percent of the acreage in the desert regions of the Southwest but support 90 percent of the bird life, according to A Natural History of the Sonoran Desert. For these habitats to be stripped of their protections under the Clean Water Act means a serious risk of habitat loss in areas of outsized importance for birds.
On the human side of the equation, excluding dry washes and ephemeral streams and rivers risks damage to property through flooding. In Arizona, for example, drainages coming off local mountain ranges flow infrequently. However, when they do flow due to rain or snow events, floodwaters can overwhelm the normally dry channels. Clean Water Act protections can require that developers mitigate impacts to these washes, or mandate that development keep the washes intact in order to act as drainages for storm events. As part of the urban fabric, these washes serve as flood protection for communities during storm events and as corridors for wildlife when dry.
Losing protections on thousands of stream and river miles because they only flow seasonally or after rain events or snowmelt will negatively impact the birds and people who rely on these important water resources throughout the Southwest. Audubon will submit formal comments on the proposed WOTUS definition to the Environmental Protection Agency and the Army Corps of Engineers by the April 15, 2019 deadline, and we invite you to do the same.
Jan. 23, 2020, the Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the improved definition for “waters of the United States” (WOTUS) with the Navigable Waters Protection Rule. “ The Navigable Waters Protection Rule ends decades of uncertainty over where federal jurisdiction begins and ends. For the first time, EPA and the Army Corps of Engineers are recognizing the difference between federally protected wetlands and state protected wetlands. It adheres to the statutory limits of the agencies’ authority. It also ensures that America’s water protections – among the best in the world – remain strong, while giving our states and tribes the certainty to manage their waters in ways that best protect their natural resources and local economies.”
In March 2014, the Obama administration released a regulation that would assert Clean Water Act jurisdiction over nearly all areas including those with undiscernible connections to water resources and man-made conveyances. Specifically, the Obama WOTUS rule expanded agency control over 60 percent of the country’s streams and millions of acres of wetlands that were previously non-jurisdictional. In September 2019, the Trump administration, EPA and Army Corps of Engineers repealed the controversial 2015 WOTUS rule and proposed a new Clean Water rule clarifying which level of government, federal or state, would oversee water features and dry land that is sometimes wet.
The revised WOTUS definition identifies four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands that are adjacent to jurisdictional waters. The final action also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.
Leaders of the National Potato Council (NPC) welcomed the announcement that the U.S. Environmental Protection Agency (EPA) finalized its proposed rule defining the Waters of the United States (WOTUS) rule with the Navigable Waters Protection Rule. EPA’s action also defines what waters are not subject to federal control, including most farm and roadside ditches, prior converted cropland, and farm and stock watering ponds.
“Potato farmers are committed to protecting the nation’s waters,” said Britt Raybould, President of the National Potato Council. “However, the imposition of unnecessary federal burdens, such as regulating ditches on private farms that are generally dry throughout the year, undermines that overall mission by creating uncertainty and increasing costs. EPA’s newly issued rule avoids those negative outcomes and provides increased clarity regarding the responsibilities of farmers under the Clean Water Act in protecting our nation’s surface water resources.”
Contrastingly, Jill Hunsaker Ryan, executive director, Colorado Department of Public Health and Environment stated, “The EPA’s announcement today is alarming as it puts our precious waters at risk. Every Coloradan, and so many others from neighboring states, are dependent on Colorado’s healthy waterways. At the department, regardless of what happens at the federal-level, we’ll always be committed to the health of our waters. Healthy waters mean healthy Coloradans,” said Jill Hunsaker Ryan, executive director, Colorado Department of Public Health and Environment.
“In the absence of federal leadership, we are going to do everything possible to protect streams and wetlands in Colorado. It’s sad that we have to step up in contrast with our federal government on something so basic as protecting our water, but we must. The rollback removes huge swaths of Colorado’s waters from federal jurisdiction, waters used by 19 states and Mexico. It’s estimated that almost 70 percent of our Colorado Waters could be impacted by this rule. Additionally, the change will impose significant burdens upon the State of Colorado,” said Patrick Pfaltzgraff, director, Water Quality Control Division.
Earlier in the year, the Colorado Department of Public Health and Environment, Colorado Department of Natural Resources, and Colorado Department of Agriculture collectively rebuked the EPA’s proposed rule change.
When Wendy Rash was diagnosed in 2005 with a thyroid disorder, chronic fatigue and other ailments, her doctor couldn’t explain her suddenly failing health.
Soon, other family members became ill. Her brother-in-law contracted fatal kidney cancer. Her father-in-law developed esophageal cancer. Then her 32-year-old son began having severe kidney problems.
It wasn’t until 2016 that scientists tested the tap water they had been drinking and found it was contaminated with man-made chemicals known as per-fluorinated compounds, part of a family of chemicals called PFAS. The chemicals were traced to firefighting foam from a nearby military airfield, one of hundreds of Pentagon bases nationwide that for decades may have contaminated drinking water used by tens of thousands of people.
“We had no clue,” said Rash, 58.
The role played by PFAS in the family’s illnesses is not known. Studies have shown a link between the chemicals and a range of health problems, including an elevated risk for some cancers, but they have not established a clear cause-and-effect relationship.
Rash’s family history of illnesses is common in Fountain, a Colorado Springs suburb flanked by mountains and military bases. And the scientific uncertainty about how much risk residents face has only worsened the anxiety many feel, as Fountain and surrounding towns have become a center of the growing national furor over the possible health effects of ingesting PFAS.
Congress is trying to expand regulation of the chemicals. Earlier this month, the House voted 247 to 159 in favor of a bill requiring the Environmental Protection Agency to designate PFAS as hazardous substances, which would free up funds for the cleanup at contaminated sites.
But the Trump administration has threatened to veto the bill, saying in a Jan. 7 statement that such a move would force high compliance costs on businesses and states, and that the EPA, not Congress, should make the decision.
The Trump administration formally proposed a rule last week that strips away protections that have been in place 50 years for waters all across the U.S. In what is seen as a victory for fossil fuel producers, farmers, and real estate developers, the proposed rule retains protections for large bodies of water, rivers, and streams—but removes safeguards for many wetlands, intermittent streams, and groundwater.
E & E News reports that a group called Public Employees for Environmental Responsibility, made up of current and former EPA scientific advisers, has filed a complaint calling for an investigation into the process leading to the new rule, charging that it was based more on politics than science. They claim that the final rule contradicts the overwhelming scientific consensus on the connectivity of wetlands and rivers and streams. They add that officials instructed staff not to submit comments for the record.
The new rule, which will be implemented in 60 days, is sure to be challenged in court by environmental groups and some state attorneys general. The outcome, if it makes it to the Supreme Court, is not certain. One environmental law expert told Politico that conservative justices on the Court may not like the way the Trump administration ignored both science and the experts it picked to advise the EPA.
Here’s the release from American River (Chris Williams):
The Trump Administration [on January 23, 2020] announced the release of its Revised Definition of the Waters of the United States, a sweeping federal rule that drastically weakens the reach and authority of the Clean Water Act to protect the Nation’s rivers, small streams and wetlands.
In 2001 and 2006, two convoluted Supreme Court rulings created uncertainty about the extent of the Clean Water Act’s jurisdiction. The Obama administration engaged in a lengthy rulemaking process to clarify the authority of the Act to protect small streams and wetlands that are so important to river health and contribute to the drinking water supplies of two in three Americans. Following years of painstaking scientific, economic and legal analysis, hundreds of public meetings, and a comment period that produced over a million comments, the “Clean Water Rule” was adopted in 2015, reaffirming the Act’s broad authority “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
The Trump administration’s rule replaces the Clean Water Rule, undermining protection of rivers, wetlands, and clean water. It uproots decades of regulatory practice and judicial precedent with little public input and virtually no scientific analysis. It is setting aside the findings of over 1,200 peer-reviewed studies, collected in EPA’s own Connectivity Report, that demonstrate the vital importance of small streams and wetlands to the water quality, flow, and overall ecological health of larger rivers downstream. The rule deals a crippling blow to the Act’s authority to protect wetlands, excluding more than half of the nation’s wetlands from the Clean Water Act’s reach, and eliminating protection for almost 20% of the nation’s rivers and streams.
Bob Irvin, President and CEO of American Rivers made the following statement regarding the Trump Administration’s Revised Definition of the Waters of the United States:
“The Trump administration’s Dirty Water Rule is an affront to the health and safety of hundreds of millions of people across the country who depend on rivers and streams for clean water. It is reckless and capricious, reversing the Clean Water Rule which was firmly based on sound legal and scientific analyses, extensive fact-finding and stakeholder input, and broad popular support.
President Trump has frequently said he wants ‘crystal clean water.’ This rule will result in dirty water, plain and simple.”
Elected officials and advocacy groups in Colorado responded to a change to a federal rule on water protections.
The previous rule, called “Waters of the United States,” or WOTUS, was established in 2015 by the Obama administration. That rule, however, was under intense scrutiny by Republicans, property rights groups, and several industries for what they perceived as federal regulatory overreach, citing it’s expansive interpretation.
That rule was repealed by the U.S. Environmental Protection Agency and the Department of the Army in September.
The new rule, called the Navigable Waters Protection Rule, was announced on Thursday at a builders’ industry trade show in Las Vegas.
The Trump administration says the new rule will still protect navigable waters from pollution but also will provide regulatory relief and more certainty for development.
“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” EPA Administrator Andrew Wheeler said in a statement. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”
The new rule creates four different categories for bodies of water to be federally regulated under the Clean Water Act, and excludes certain types of bodies of water such as ditches.
The new rule drew broad criticism from Colorado Democrats and environmental groups that work in the state.
“In Colorado, we value our clean water. Our rivers, streams, and lakes serve as the lifeblood of our communities and help support our thriving outdoor and agriculture industries,” Gov. Jared Polis said. “Our administration will continue to reject attempts by the Trump administration to gut proven ways to protect our health and environment.”
U.S. Rep. Ed Perlmutter, D-Colo., tweeted that the new rule “removes protections for smaller bodies of water & rolls back federal protections for smaller headwaters that have been protected for almost 50 years – including the Colorado River.”
Western Resource Advocates, an environmental advocacy group headquartered in Boulder, in a tweet urged state lawmakers “to stand w/ their communities & lead where the federal government won’t. We’re calling on our leaders throughout the West to come together & safeguard healthy rivers & clean water.”
Republicans and some industry groups praised the rule change for reducing regulations.
“The uncertain interpretation of the term ‘navigable waters’ created by WOTUS has left farmers, ranchers and private land owners unprotected from federal land and water grabs,” U.S. Rep. Scott Tipton, R-Colo., said “Over the last three years, President Trump’s administration has worked to repeal unnecessary and burdensome regulations with updated versions that better suit the needs of our agricultural communities.”
Don Shawcroft, president of the Colorado Farm Bureau, which advocates for agricultural interests, said the new “rule provides clarity and stability for farmers and ranchers everywhere, ensuring that farmland remains healthy and productive, and our waters protected. It is a major win for Colorado agriculture.”
Both the Colorado Chamber of Commerce and the National Federation of Independent Business-Colorado supported the rule change.
“The Trump Administration’s new water rule makes it a lot easier to pave America’s critical wetlands and put up parking lots,” said David Yarnold, president and CEO, National Audubon Society (@david_yarnold) after the Administration announced the finalization of its rollbacks to the Clean Water Act. “Wetlands are not only important places for birds, they also are natural buffers that absorb flood waters and purify water for us all.”
The newly published, Navigable Waters Protection Rule, removes Clean Water Act protections for many rivers, streams, and wetlands that could allow them to be altered, degraded or filled. For example, a large number of streams and wetlands that are only wet for part of the year are now exempt from Clean Water Act protections. Some 138 species and subspecies of birds in the U.S. are designated as “wetland dependent” and many more are threatened by the new rule.
“This disintegration of Clean Water Act protections further threatens birds by putting critical habitat at risk of pollution and destruction of habitat,” said Julie Hill-Gabriel, vice president for water policy at the National Audubon Society. “We’ve already lost 3 billion birds in the past 50 years and we know that two-thirds of North American bird species are at risk of extinction from climate change.”
Birds use lakes, tributaries, streams, ponds, wetlands, prairie potholes, and other water bodies for breeding, nesting, and raising young. These water bodies provide crucial sources of drinking water and food, stop-over locations during migration and needed shelter for birds as they seek protection from predators and harsh weather.
The rule will adversely impact birds in the arid southwest, in the Great Lakes to the north, in the Everglades to the south, and in the Delaware River basin to the east. The Clean Water Act is one of our most powerful environmental laws. The final rule undermines the science-based definition of “Waters of the United States” and is another example of this Administration passing laws and policies that are bad for birds and people.