Report: Five Case Studies on the Effects of the SWANCC and Rapanos Supreme Court Rulings on Colorado Wetlands and Streams

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While national politicians argue and do nothing about the recent U.S. Supreme Court rulings that have muddied enforcement of the Clean Water Act, Trout Unlimited, Ducks Unlimited and the National Wildlife Federation have been doing the science around the issue(s) here in Colorado. Here’s a report from Chris Woodka writing for The Pueblo Chieftain. From the article:

“These are islands of moisture,” said Dennis Buechler, author of the report released Tuesday (pdf) by the National Wildlife Federation, Ducks Unlimited and Trout Unlimited. The wetlands are important to wildlife. While covering less than 2 percent of the land, they are home to 75 percent of the state’s wildlife species. “A lot of these little streams are ephemeral (flowing intermittently) and off the radar. I like to call them the Rodney Dangerfields of the aquatic world. They don’t get enough respect.”

Buechler, a former U.S. Fish and Wildlife employee who now is a wetlands consultant, looked at five types of wetlands in the South Platte watershed to see how regulatory confusion has set back preservation. The Corps has authority over projects on streams, rivers and lakes in the United States under Section 404 of the 1972 Clean Water Act.

Conflicting U.S. Supreme Court decisions in 2001 and 2006 cases have led to regulatory confusion. “The result was the effective removal of regulatory oversight and protection of the fish and wildlife habitat and other important functions on 20 million acres of so-called geographically isolated wetlands in the lower 48 states,” Buechler wrote in the report. Under one interpretation, the Corps has jurisdiction only in “navigable waters” or tributaries. That leaves fens (mountain bogs), playas (shallow basins) and intermittent streams at risk, Buechler said.

The groups support federal legislation, S.787, which was introduced last year to clarify the Corps role in enforcing the Clean Water Act, said Jim Murphy of the National Wildlife Federation. The bill, as introduced, would give the Corps permit authority over habitats like those of concern to the wildlife groups…

Buechler looked at fens near Fairplay, a lake in a residential development in Westminster, a playa wetland in Washington County, a dry creek subject to flooding near Broomfield and a creek with urban and industrial encroachment near Aurora…

“We all live downstream. Watersheds are connected systems, and if degradation of wetlands and discharge of pollutants and fill material are allowed in headwater areas, those impacts will over time migrate downstream to mainstream reaches and effect drinking water as well as fish and wildlife habitat,” Buechler wrote in the report.

More S.787 coverage here and here.

Congressional mining reform legislation update

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From the Associated Press via the San Jose Mercury News:

Among proposals to reform the 1872 Mining Law are plans to implement royalties on mining profits for the first time and reclamation fees for cleaning up abandoned mines. Interior Secretary Ken Salazar had testified to a Senate committee in July 2009 that he wanted reform that protects mining, protects the environment and provides for the cleanup of such mines. Sen. Jeff Bingaman, the New Mexico Democrat who chairs the Senate Energy and Natural Resources Committee, is shepherding the broadest plan, which calls for an adjusted 2 percent to 5 percent royalty after transportation and processing costs are taken out. It also gives the Interior Department more discretion on environmental matters and calls for the money raised under the bill to be used for reclaiming abandoned mine lands. The proposal has the support of a number of conservation groups, including the Washington D.C.-based Earthworks. Cathy Carlson, an adviser to Earthworks, said Bingaman told conservationists who recently met with him that he hoped to move the bill out of committee in April…

Republican Reps. Doug Lamborn, of Colorado, and Rob Bishop, of Utah, have introduced a good Samaritan bill that allows mining companies and nonprofit organizations to clean up old mines without liability for old environmental damage. Bills introduced by Sen. Dianne Feinstein, D-Calif., and Sen. Mark Udall, D-Colo., also focus on abandoned mine provisions. Carlson said Udall’s bill, which reduces cleanup liability under the Clean Water Act, has “broad support.”[…]

Lamborn and Bishop’s proposal calls for a 2 percent net proceeds royalty on new mines on public land, an approach that leaders of the National Mining Association believe is a better fit with mining industry interests. Eklund-Brown said she emphasized in NBC interview yet to air that any royalty must be industry-specific and not compared with those paid by industries such as oil and gas.

More General Mining Act of 1872 coverage here, S.1777 coverage here, S.787 coverage here and S.796 coverage here.

ASARCO parent Grupo Mexico ponies up $1.79 billion for mining cleanup

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From the Environmental News Service:

ASARCO LLC is a mining, smelting, and refining company based in Tucson, Arizona that mines and processes primarily copper. Parent corporation Grupo Mexico is providing the $1.79 billion to resolve the ASARCO’s environmental liabilities from operations that contaminated land, water and wildlife resources on federal, state, tribal and private land in 19 states. “Through this historic settlement, the American public is compensated for the damage and loss of natural resources resulting from ASARCO’s past mining, smelting and refining operations,” said Secretary of the Interior Ken Salazar. “Were it not for this agreement, these injured resources would either remain impaired for future generations or require taxpayer expenditures to achieve environmental restoration.” The money from environmental settlements in the bankruptcy will be used to pay for past and future costs incurred by federal and state agencies at the more than 80 sites contaminated by mining operations in 19 states, said federal officials…

The contaminated Superfund sites are in Arizona, Alabama, Arkansas, California, Colorado, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Nebraska, New Jersey, New Mexico, Ohio, Oklahoma, Texas, Utah, and Washington.

More superfund coverage here.

S. 787: Clean Water Restoration Act

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From The Pueblo Chieftain (Chris Woodka):

“What we’ve offered is a compromise position on legislation governing the jurisdictional waters of the United States. The question is: What type of projects need a 404 permit?” Aurora Water Director Mark Pifher told the Arkansas Basin Roundtable on Wednesday. Pifher has worked for the Colorado Water Congress and the Western Urban Water Coalition on proposed legislation by Sen. Russ Feingold, D-Wisc., and Rep. James Oberstar, D-Minn., which attempts to restore Clean Water Act guidelines to policies that were in place prior to a pair of United States Supreme Court decisions. The controversy centers on the definition of “navigable waters” and which federal laws need to be considered in issuing permits under Section 404 of the Clean Water Act.

The Supreme Court cases are Rapanos v. the United States, decided in 2006, which involved filling in wetlands near ditches in Wisconsin; and the 2001 decision in the Solid Waste Agency of Northern Cook County v. the U.S. Army Corps of Engineers, which centered on the city’s plans to create landfills on old gravel pits the government deemed wetlands. The effect of both decisions was to muddy the distinction of whether water projects in areas marginally connected to a watershed required a 404 permit. “After the decisions, Congress said, ‘We’re going to fix it,’ ” Pifher said.

The first attempt at fixing it caused an uproar because of a lengthy series of findings that some felt expanded the Clean Water Act into land use authority, international treaties and other areas of federal jurisdiction. Others objected to the removal of “navigable waters” from the language of the law, saying it broadened the federal authority…

“The Western Urban Water Coalition drafted a compromise that leaves in navigable waters, but defines what they are,” Pifher said. It also included exemptions for both municipal and agricultural systems in the West, and protects administration of water rights according to state laws.

More S. 787 coverage here.

Groups hope to get U.S. Representative Markey to introduce companion to U.S. Senate Clean Water Restoration Act in the U.S. House of Representatives

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From the Fort Collins Coloradoan (Bobby Magill):

Colorado Trout Unlimited and Clean Water Action say they fear pollution could threaten trout habitat and drinking water for cities along the Front Range because some of the region’s water supply originates in streams that may be unregulated because the streams can’t be navigated by boat and are dry some of the year. Some of those streams may be in the Poudre River watershed, the National Wildlife Federation and the Izaak Walton League said in early October. The concern stems from a 2006 U.S. Supreme Court decision limiting the kinds of streams that can be protected under the Clean Water Act. According to the U.S. Environmental Protection Agency, only those rivers and streams that affect interstate commerce – streams navigable by boat or are connected to such streams – are protected under the act. Some of those streams that might have lost protection could be polluted by mining and other development. In response to the 2006 decision and another ruling earlier in the decade also limiting the Clean Water Act, a bill was introduced in the Senate in April to restore some of the lost protections. The Clean Water Restoration Act is now in committee in the Senate.

But local groups are hoping Rep. Betsy Markey, D-Colo., will support a House version of the bill. “We’re trying to get back to where we were before the two Supreme Court decisions,” said Melinda Kassen of Trout Unlimited. “It is going to take the word ‘navigable’ from the act. Technically, the only navigable river is (the Colorado River) from Grand Junction to the state line.” Trout Unlimited wants to ensure that wetlands and high mountain streams that are trout spawning grounds but are dry some of the year are protected from pollution under the Clean Water Act, she said, adding that she hopes a bill can be introduced next month.

More Clean Water Restoration Act coverage here and here.

S. 787: Clean Water Restoration Act

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From the Fort Collins Coloradoan (Bobby Magill):

The groups, including the Izaak Walton League of America and the National Wildlife Federation said Wednesday such unregulated pollution could contaminate drinking water for more than 620,000 people living in Larimer, Weld and Boulder counties. The U.S. Environmental Protection Agency agrees water contamination from future mining and development could go unregulated in the headwaters of some streams in the region. Pollution could threaten drinking water here because most of the county’s water supply comes from rivers fed by streams that can’t be regulated because they can’t be navigated by boat, the groups said.

Scott Kovarovics of the Izaak Walton League said if someone wants to pollute a dry stream, the law might allow that. The concern stems from a 2006 U.S. Supreme Court decision limiting the kinds of streams that can be protected under the Clean Water Act. According to the EPA, only those rivers and streams that affect interstate commerce – those people that can navigate by boat or are connected to such streams – are protected by the act. Excluded from protection are streams, possibly including some high in the mountains, that flow less than a few months each year and exist on private land or don’t flow into a stream that people can navigate with a boat. “We should be concerned about those (streams) because those areas are where we have a lot of our snowmelt,” said Dick Clark, wetland coordinator for the EPA in Denver…

Generally, Clark said, streams on public land are protected, and so are high mountain streams that either flow all year long or most of the year. Unregulated contamination could flow downstream from private land being mined high in the mountains, he said…

The number of streams that aren’t regulated in Larimer County aren’t known because the U.S. Army Corps of Engineers, which determines whether federal regulations apply to certain streams, doesn’t keep track of them, said Tim Carey, chief of the Corps’ Denver regulatory office. Only two streams in Colorado have ever been determined not to fall under the Clean Water Act, Carey said. One was in the plains of eastern Douglas County, where the stream disappears into the sand, he said…

Despite the concern, the Poudre is likely to remain uncontaminated because there is little development potential in its watershed, Gertig said. “Since the Poudre is a wild and scenic river, protection of that designation may be more powerful than anything else,” he said.

More S. 787 coverage here.

New York Times series: Toxic waters

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The New York Times is running a series on the worsening problem of water pollution in the U.S. Here’s the link to the series. Here’s last Saturday’s installment (Charles Duhigg). From the article:

Almost four decades ago, Congress passed the Clean Water Act to force polluters to disclose the toxins they dump into waterways and to give regulators the power to fine or jail offenders. States have passed pollution statutes of their own. But in recent years, violations of the Clean Water Act have risen steadily across the nation, an extensive review of water pollution records by The New York Times found. In the last five years alone, chemical factories, manufacturing plants and other workplaces have violated water pollution laws more than half a million times. The violations range from failing to report emissions to dumping toxins at concentrations regulators say might contribute to cancer, birth defects and other illnesses. However, the vast majority of those polluters have escaped punishment. State officials have repeatedly ignored obvious illegal dumping, and the Environmental Protection Agency, which can prosecute polluters when states fail to act, has often declined to intervene…

Records analyzed by The Times indicate that the Clean Water Act has been violated more than 506,000 times since 2004, by more than 23,000 companies and other facilities, according to reports submitted by polluters themselves. Companies sometimes test what they are dumping only once a quarter, so the actual number of days when they broke the law is often far higher. And some companies illegally avoid reporting their emissions, say officials, so infractions go unrecorded. Environmental groups say the number of Clean Water Act violations has increased significantly in the last decade. Comprehensive data go back only five years but show that the number of facilities violating the Clean Water Act grew more than 16 percent from 2004 to 2007, the most recent year with complete data…

…the Times’s research shows that fewer than 3 percent of Clean Water Act violations resulted in fines or other significant punishments by state officials. And the E.P.A. has often declined to prosecute polluters or force states to strengthen their enforcement by threatening to withhold federal money or take away powers the agency has delegated to state officials…

Enforcement lapses were particularly bad under the administration of President George W. Bush, employees say. “For the last eight years, my hands have been tied,” said one E.P.A. official who requested anonymity for fear of retribution. “We were told to take our clean water and clean air cases, put them in a box, and lock it shut. Everyone knew polluters were getting away with murder. But these polluters are some of the biggest campaign contributors in town, so no one really cared if they were dumping poisons into streams.” The E.P.A. administrators during the last eight years — Christine Todd Whitman, Michael O. Leavitt and Stephen L. Johnson — all declined to comment.

Here’s a look at the series from a Colorado perspective, from David O. Williams writing for Real Vail. From the article:

Thirty-nine states provided information requested by the New York Times as part of its series on Clean Water Act violations called “Toxic Waters: A series about the worsening pollution in American water and regulators’ response.” Colorado wasn’t one of them. Instead, here’s what Ann Hause of the Colorado Department of Public Health and Environment reportedly told the Times when asked to provide information or verify the Times’s reporting on Colorado’s enforcement, or lack thereof, of the Clean Water Act: “We cannot verify the accuracy of this data because we cannot duplicate the ECHO query or survey used to generate this data. Also, the time period in question and the criteria used for specifying compliance are not stated. With respect to the remaining questions, as they are fairly resource-intensive, the Department is not able to provide answers within any predictable time frame.”

Colorado Ethics Watch, a nonprofit political watchdog group, found that response woefully inadequate and now plans to file its own Colorado Open Records Act request. “This is an unacceptable response. How can the Department not know whether or not it is enforcing the Clean Water Act? And more importantly, how are Coloradoans supposed to know whether the Department is adequately protecting them from environmental harms?” said Ethics Watch director Chantell Taylor. “Taxpayers deserve prompt, accurate information on such important matters of public safety and we intend to follow up with the Department to see if we can get just that.”

Meanwhile the Las Animas County Commissioners are worried about language in S. 787, the Clean Water Restoration Act, according to a report from Randy Woock writing for The Trinidad Times Independent. From the article:

The new language in the federal bill, proposed by U.S. Sen. Russ Feingold of Wisconsin, would amend the Clean Water Act of 1972 by replacing the words “navigable waters” in the bill with the term “waters of the United States.” That change in the bill would define the U.S. Environmental Protection Agency’s (EPA) area of jurisdiction to include, according to the bill’s official congressional summary, “…all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams, mud flats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, lakes, natural ponds…to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution.” As recently reported by environmental group Clean Water Action, a March 2008 memorandum from the EPA’s Office of Enforcement and Compliance Assurance claimed that “hundreds” of Clean Water Act enforcement cases had recently been either dropped or made lower priorities due to concerns about whether various rivers, streams, wetlands or other waters were protected from pollution by the Clean Water Act. The agency memo claimed that between 2006 and 2007 the agency chose to not pursue the enforcement of more than 300 violations due to the jurisdictional uncertainties. Clean Water Action reported that in 2001 the Supreme Court held that non-navigable intrastate waters were not protected by the Clean Water Act because they could serve as habitat for migratory birds. Clean Water Action claimed that it, “…gave polluters an opening to ramp up a decades-long effort to pressure the EPA and the Corps of Engineers to weaken their rules…

The county’s board of commissioners has also voiced concern about the proposed changes in the Clean Water Restoration Act. “I understand that there are probably some things (needing regulating), but why would we want everyone under those rules?” Las Animas County Commissioner Gary Hill said. “There’s ranchers, cities…what are we going to do when every drop of water that falls is sooner or later contaminated with a little drop of oil? Who’s going to pay for that?” Hill added, “Worse than that, when you get into a ranch or farm and you’re not having the public paying for it (EPA violations), then it’s just individuals…I don’t want anybody in control of our water; there’s enough regulations already.” Hill also said that the coalition of state counties, Colorado Counties, Inc., had drafted a letter in opposition to the bill, though it was not available for examination at press time.

Fellow County Commissioner Jim Vigil also voiced concern about the level of control over local waters that the bill could give federal agencies. “From an agricultural concern, the way that bill is proposed…the feds would have control over stock ponds, irrigation ditches, dry arroyos that run once a year when it rains, and that just makes it onerous on ranchers, farmers and, in general, the western U.S.,” Vigil said. “The EPA or Army Corps of Engineers could come in every time you wanted to clean out a stock pond or build a new stock pond or put in a new watering system.”

More water pollution coverage here.