Here’s the release from Colorado Parks & Wildlife (Jason Clay):
Cherry Creek State Park is experiencing natural algal blooms that may be harmful to dogs and humans as a result of a number of things including warmer temperatures, stagnant waters, and nutrient loading from fertilized lawns.
The park has closed the swim area due to elevated levels of cyanobacteria (blue-green algae) growth. The swim area will remain closed until tests provide acceptable conditions to re-open. Blue-green algae has been detected in other areas of the park and caution signs have been placed in visible areas throughout the lake. The Colorado Department of Public Health and Environment (CDPHE) recommends the following:
Keep kids out
No pets in water
Do not drink water
Avoid contact with algae
For more information on blue-green algae, please click here.
The Dog-Off-Leash-Area stream has been tested and no visible signs of the algae have been observed.
For more information on conditions at Cherry Creek State Park, please click here.
The silence you are hearing is no one being surprised.
The limits of the phrase “waters of the United States” within the Clean Water Act (CWA) have been the subject of conflicting, confusing, and often divergent case law for decades, and the efforts of the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to issue new rulemakings beginning in the Obama administration have only led to a deeper legal quagmire. The most recent effort to redefine the term, the Navigable Waters Protection Rule (2020 WOTUS Rule) is already subject to conflicting court decisions, and split implementation.
The contrary decisions were both handed down on June 19, 2020 in the United States District Court for the District of Colorado and in the United States District Court for the Northern District of California. The Colorado decision granted the state’s request for a preliminary injunction preventing the implementation of the 2020 WOTUS Rule in Colorado. The California decision considered and rejected a similar request for nationwide injunction by seventeen states.
Colorado’s decision turned on an analysis of the U.S. Supreme Court Decision in Rapanos v. United States, 547 U.S. 715 (2006). Noting that is difficult to ascertain what the 4-1-4 Rapanos decision actually stands for, the Colorado district court looked at what it stands against. Five justices in Rapanos were expressly opposed to the categorical exclusion of intermittent and ephemeral streams from Clean Water Act protection that was proposed by the plurality opinion of Justice Scalia. Because the 2020 WOTUS Rule attempts to codify what the Supreme Court has already rejected as “inconsistent with the [CWA’s] text, structure, and purpose” (see Rapanos at 776), the judge concluded that Colorado is likely to succeed on the merits, and granted the requested injunction.
The California decision came to the opposite conclusion, relying heavily on the inherent ambiguity of the term “navigable waters” within the CWA. Citing Chevron U.S.A. v. NRDC, Inc. 467 U.S. 837 (1984), the court believed deference was due to the agencies when implementing ambiguous terms in a statute. The district court also noted that under National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), an agency reversing itself regarding the interpretation of an ambiguous term is not automatically cause for denying Chevron deference. Moreover, the district court noted that a “court’s prior judicial construction of a statute [read: Rapanos] trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X at 982. The court could not construe any proposition from the fractured Rapanos opinions as following unambiguously from the terms of the CWA, and thus concluded that the plaintiffs had not carried their burden of showing a likelihood of success on the merits. The broader injunction requested by the plaintiffs was denied.
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.
Here’s the release from the Southeastern Colorado Water Conservancy District (Chris Woodka):
The Southeastern Colorado Water Conservancy District applauded state approval of a $100 million financing package for the Arkansas Valley Conduit that will allow construction to begin in the near future.
The Colorado General Assembly passed the annual Colorado Water Conservation project bill which contains the funding earlier this month, and Governor Jared Polis signed the bill into law on Monday.
“The Arkansas Valley Conduit will be a lifeline for the Lower Arkansas Valley for generations to come,” said Bill Long, President of the Southeastern District. “Governor Polis, the General Assembly and the CWCB have all shown vision and foresight with this support of the AVC. This goes beyond just financing a pipeline, because really it’s an investment to assure clean drinking water for the future.”
Long also noted the strong bipartisan support the AVC enjoys from the entire Colorado congressional delegation, and noted in particular the leadership of Senators Cory Gardner and Michael Bennet, and Congressmen Scott Tipton and Ken Buck.
“I want to thank the CWCB board and staff for including this funding in their annual bill, and express our sincere gratitude to the legislators from the Arkansas Basin for their leadership and support,” said Kevin Karney, chairman of the District’s AVC committee. “The recognition by the State of Colorado of the benefit of partnering with the Bureau of Reclamation on this project is an enormous boost.”
The AVC is estimated to cost between $564 million and $610 million to complete over a 15-year period. The $100 million in state funding would include $90 million in loans and $10 million in grants over the life of the project. When complete, the AVC will provide clean drinking water to 50,000 people in 40 communities.
The AVC had received funding since 2010 to prepare for construction of the 130-mile pipeline which will deliver a safe drinking water supply to the Lower Arkansas Valley. In February of this year, the Bureau of Reclamation announced that $28 million of FY ’20 funding was being directed to the conduit, in an effort to move from planning and design into construction. An additional $8 million has been requested for FY ’21 and is under consideration by Congress.
“The unanimous approval of this funding package by the CWCB board last November was the absolute catalyst for an improved federal funding picture,” said Southeastern District Executive Director Jim Broderick. “Colorado, like other Western states, recognizes developing a strong partnership with Reclamation allows us to overcome water quality and water supply challenges in rural areas.”
Palisade needs to decommission its aging wastewater lagoons and a new study shows piping the town’s waste to the Clifton Sanitation District’s wastewater treatment plant is the most cost effective.
The Palisade Sewer Study looked at several options for treating Palisade’s wastewater, Town Administrator Janet Hawkinson said. The two main options were to build a new treatment plant in Palisade or send the waste to Clifton.
“What the city found is that (piping to Clifton) is financially better for the town,” Hawkinson said. “It’s about half the price to take a line to Clifton versus us building our own treatment plant and then decommissioning our lagoons.”
A brand new plant would cost around $15 million, Hawkinson said, while utilizing Clifton’s existing facility would cost around $7 million. Decommissioning the lagoons will cost around $3 million, she said and will have to be done under either plan, as they will not be able to meet water treatment guidelines…
Town staff are beginning to research grant opportunities to pay for design and engineering work on the project, which Hawkinson said would cost around $500,000. She said the Department of Agriculture has some grants available and that the town was looking into other funding sources as well.
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.”
Here’s the release from the City of Colorado Springs:
The City of Colorado Springs has closed Prospect Lake, in Memorial Park, effective immediately, until further notice due to the presumed return of toxic algae. The closure follows a visual inspection Monday, June 15 by Parks, Recreation and Cultural Services staff. A precautionary water sample is scheduled to be taken from the lake by Colorado Springs Utilities on Tuesday, June 16. This test is to confirm the presence of mycrocystin toxin, which is produced by cyanobacteria, also known as blue-green algae.
“Our region has again been experiencing hot, dry weather, creating conditions similar to what we experienced prior to the 2019 algae bloom in Prospect Lake,” said Erik Rodriguez, health, safety and environmental specialist with the Parks, Recreation and Cultural Services Department. “Given today’s visual inspection, and the lake’s recent history with mycrocystin toxin, we have closed Prospect Lake for usage at this time. If Tuesday’s water sample returns positive, we will continue to test weekly until the bacteria clears up.”
Prospect Lake was closed for 12 weeks in the late summer and early fall of 2019 due to blue-green algae. Since that time, Parks’ staff has taken proactive measures, including the application of an enzyme-based, non-pesticide treatment that consumes the biomass at the bottom of the lake and helps oxygenate the water. The first two treatments were applied May 26 and June 11. The next scheduled treatment is Tuesday. Additionally, more water will be added to the lake, which will increase the oxygen level and help dilute the toxin.
During the closure, the following activities are prohibited: swimming, bathing, paddle boarding, tubing, water skiing and non-motorized boating of any kind. No pets are allowed. The use of permitted motorized boats is encouraged as this activity can help aerate the water. Fishing areas will remain open, though anglers are urged to clean fish well and remove guts.
BLUE-GREEN ALGAE BACKGROUND
What is harmful algae?
Blue-green algae are a type of bacteria common in lakes throughout Colorado. When conditions are right, blue-green algae multiplies quickly. Those conditions include sustained hot weather, stagnant water, and polluted stormwater runoff.
These conditions result in too much nitrogen, potassium and phosphorus in the water. This causes the harmful bacteria to grow faster than the ecosystem can handle. The increased bacteria harm water quality, decrease the amount of oxygen available to animals living in the water, and can produce a toxin that is harmful to humans and pets.
Blue-green algae are self-limiting, naturally-occurring bacteria, which means it eventually phases itself out of bodies of water.
The Colorado Department of Public Health and Environment (CDPHE) offers additional information about blue-green algae on its website.
Experts have recommended how the United States can drastically curb the use of throwaway plastics with new federal legislation.
According to legal analysts who advised Congress at a briefing in January, the United States could reduce its contribution to the global plastic pollution crisis by implementing sweeping federal policies that restrict plastic use and hold manufacturers accountable for responsibly handling waste.
The expert group, composed of members from Frank G. Wells Environmental Law Clinic at UCLA and ocean conservation organization Surfrider Foundation, specifically recommended that Congress craft federal legislation banning single-use plastic products such as bags, straws and expanded polystyrene foam food containers. They also called for establishing “extended producer responsibility” schemes, which hold plastic manufacturers responsible for the waste they create.
Their recommendations, along with a new report, drew on research into existing legislation targeting plastic pollution in the United States and across the world. The experts found that the key to reducing plastic pollution is curbing consumption. The report and its presentation resulted from a semester-long project by UCLA students Charoula Melliou and Divya Rao, in collaboration UCLA attorney Julia E. Stein, Surfrider’s legal expert Angela Howe and plastic bag legal expert Jennie Romer…
There are currently no federal laws restricting single-use plastics, but that doesn’t mean there aren’t good examples that could serve as useful templates.
According to Stein, Congress could shape federal policy by following existing local and state laws that have already been crafted to tackle plastic problems with bans on all types of single-use plastic items, from bags to expanded polystyrene foam food containers to straws. California made headlines in February after lawmakers proposed a phaseout of all plastic products that aren’t completely recyclable.
Such laws are grounded in scientific evidence that plastics are problematic because they don’t break down in the natural environment and pose a danger to wildlife and probably people.
There’s a precedent for using state and local laws to help craft national legislation: microbeads. After several states and municipalities banned the sale and manufacture of health and beauty products containing these ecologically damaging exfoliating plastic beads, the United States passed a federal act doing the same.
Most experts agree banning single-use plastic products is a more useful strategy for reducing plastic use and pollution than recycling, which is much less effective. A ban also tackles the issue at the source, helping to curb greenhouse gases coming from the rapidly expanding petrochemical industry that uses fossil fuels to produce plastic.
Commonly Used Plastics
With plastic so ubiquitous, where to start? Experts say that banning just the most commonly used and littered items could cut pollution significantly.
That puts single-use plastic bags front and center…
Besides banning common problematic single-use plastic products, the expert group also recommends Congress pass legislation that would hold corporations accountable for handling plastic waste at the end of its life.
Extended producer responsibility regulations require manufacturers of plastic products to take their items back for reuse, recycling or disposal to increase recycling rates and prevent plastic waste from entering landfills and the natural environment. Container-deposit legislation is one example of such a program that’s widespread — though not ubiquitous — around the United States.
Telesetsky says these schemes may be useful when designed to manage long-lasting plastic products, but they’re trickier to implement and incentivize when plastic packaging is involved. “The problem with applying extended producer responsibility principles to existing single-use plastic is that there is simply no market for all of the reprocessed cheap packaging plastics that are being generated,” says Telesetsky. “Cheap plastics have a finite usable life before they are inevitably landfilled or burned.”
Telesetsky praises the new briefing because it raises awareness of a critical problem. But unlike the briefing group, she proposes banning single-use plastic products outright, on a global scale, in addition to incentivizing innovation in creating new biodegradable products and packaging, which she argues would stop plastic pollution more closely to its source. And it would address the issue on what she sees as a more radical and international — and thus more impactful — scale.
Yet Stein emphasizes that while her briefing has a national focus specifically tailored to U.S. Congress, the wider view is international.
“We support international efforts to address plastic pollution, but the United States also needs to take responsibility at home for its own contribution to the problem.”
Will Congress take up that challenge?
Stein says she and other members from the UCLA-Surfrider group who traveled to Washington, D.C. in January held several legislative briefings for Congressional members and staff, including those involved with last year’s 2018 Save Our Seas Act.
The act provides some funding for federal marine cleanup and waste-prevention efforts through NOAA’s Marine Debris Program. Already, two of the bill’s cosponsors, Senators Dan Sullivan (R-AK) and Sheldon Whitehouse (D-RI), have begun working on a revamped “2.0 version.”
“Overall, we felt the reception was positive — plastic pollution is a topic that is on the minds of the American public and the congresspersons who represent them,” Stein says. “We’re hopeful that Save Our Seas 2.0 legislation in the Senate may provide a chance to think about comprehensive federal strategies to reduce plastic pollution.”
FromThe Denver Post (Judith Kohler) via The Broomfield Enterprise:
The Colorado Oil and Gas Conservation Commission approved the rules Wednesday as part of ongoing revisions to oil and gas regulations mandated by Senate Bill 181, approved by the legislature in 2019.
The regulations deal with the well bore, or the hole that’s drilled to access oil or gas as well as the pipes and casings installed to inject fluids to make fractures in rocks and sand and bring up the oil and gas. The casings and cement that are part of the construction are also meant to ensure that no fracking fluids, oil or gas escape and flow into groundwater.
Heading into the hearing, there was general agreement among the parties on the proposed changes. Since the COGCC and the state Air Quality Control Commission began writing new rules, oil and gas industry representatives, community and environmental groups have clashed with each other and with agency staffers in hearings and meetings over how far the regulations should go.
But Julie Murphy, COGCC deputy director, said the agency was able to consider new rules on well bores earlier than expected thanks to a broad consensus among the various parties. She said the “top-line” change is the new requirement that the pressure in all wells across the state be tested annually to ensure that the casings and cement are still in good shape.
The annual testing and regular monitoring approved put Colorado at the head of the pack among oil- and gas-producing states, said Adam Peltz, an attorney with Environmental Defense Fund who has reviewed and worked on similar regulations across the country. He noted that the COGCC has tried to incorporate as many recommendations as possible from a 136-point list put together by a multi-state body of regulators and policy makers.
Another important change is a more precautionary approach to making sure that groundwater no matter, how far down it is located, is protected by isolating the oil, gas and fracking fluids with casings and cement, Murphy said…
The new rule is consistent with Colorado state groundwater standards, Freeman said. The COGCC staff added language saying that groundwater with less than 10,000 parts per million total dissolved solids in it must be protected, Freeman said.
The standard addresses the amount of salt in the water is and is the same one in the federal Safe Drinking Water Act and used by the Colorado Water Quality Control Commission, Freeman said.
Water with 3,000-10,000 parts per million of total dissolved solids is often called “brackish,” or saltier than fresh water, but it can be treated to use for drinking.
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.”
Havasupai Vice Chairman Matthew Putesoy is worried that a federal court decision regarding a uranium mine could lead to environmental catastrophe for his community and surrounding lands.
A U.S. District Court judge ruled May 22 against the tribe and two environmental groups in a seven-year-old lawsuit that sought to close the Canyon Mine, a uranium mine located about 10 miles south of the Grand Canyon’s south rim.
Putesoy said the tribe is not prepared to abandon its fight.
“From Havasu Baaja’s point of view,” he said, using the traditional name of his people, “the Guardians of the Grand Canyon will continue to battle the mining companies and someway, somehow, stop the mine from happening. Once the water is gone there’s no replacing it.”
The Canyon Mine lies within 1 million acres of federal lands surrounding the Grand Canyon that was withdrawn from any new mining for 20 years by the Interior Department in 2012.
The ban’s intent was to allow the U.S. Geological Survey to study the effects of such mines in the area to determine if environmental damage was likely to occur. The U.S. Forest Service determined that Canyon Mine, owned by Canadian firm Energy Fuels, could still operate because it could show a profit, as theMining Law of 1872 requires for a valid claim to be honored.
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.
FromThe Denver Post (Bruce Finley) via The Broomfield Enterprise:
Company officials say tests show contaminants did not exceed state standards for surface water
Contaminated water has been seeping into Sand Creek just up from where it meets the South Platte River near the Suncor Energy oil refinery north of Denver, and company officials on Wednesday said they were monitoring conditions and “will make any necessary repairs” to a spill containment pool behind sandbags where crews were pumping out water.
A sheen of benzene and other chemicals was detected on the surface of Sand Creek on May 7 and again on May 15, company officials said.
Sunday’s heavy rains raised water levels along the creek, leading to a breach of the containment area.
Suncor contractors have drawn water samples from Sand Creek and the South Platte, and tested these for benzene, toluene, ethylbenzene, xylene and methyl tertiary butyl ether, company officials said. The results showed concentrations did not exceed state standards for surface water in those waterways, officials said.
Colorado Department of Public Health and Environment officials did not respond to queries about conditions at the refinery. It is located just north of Denver in Commerce City, along the creek and the Sand Creek Greenway public bicycle path, near where the creek flows into the South Platte.
“Who is watching this?” Adams County Commissioner Steve O’Dorisio said. “I’m concerned about the problems that continue to occur.”
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.
A Saturday morning stroll through your local farmers market, is there anything like it? It’s a popular way that many Front Range people decide to spend their weekends, where you get to peruse the abundance and score some of the best food you can buy.
They fill their baskets with organically grown produce, chat with a farmer, walk over to a food truck for a coffee and a pastry and head home with their bounty. These brief interactions allow people to connect with where their food is grown, and put a face to the people who run these farms. But those interactions are threatened, and no, not because of COVID-19.
I am the Board President of the Valley Organic Growers Association (VOGA), representing over 125 farmers, ranchers, vineyard owners and related business operators in the North Fork Valley of western Colorado, many of whom travel to the Front Range to provide food to residents, restaurants, and breweries.
We take pride in being able to grow high-quality food, carefully tended and responsibly grown without additives or chemicals.
We also take pride in providing that food to Coloradans throughout the state. For many of us farmers, the food we grow is an extension of our personalities and represents us and our businesses.
VOGA’s vision is to create a vibrant community of prosperous, local farms that sustain the land and provide healthy agricultural products. To achieve this vision, we are dependent on our public lands.
Earlier this month, the Trump Administration approved a plan that puts the farms in our watershed at serious risk. The Bureau of Land Management’s final plan for the North Fork Valley opens our public lands to oil and gas drilling while removing protections for everything else that matters to us in the North Fork Valley.
For the past 10 years, the Bureau of Land Management has been rewriting a plan to manage the public land in the North Fork Valley. Our area is approximately 40% public land, which includes the headwaters of streams, rivers and ditches that supply irrigation water to our local farms.
VOGA has been participating and commenting on the BLM’s plan every step of the way. We even helped write our own proposal, called the North Fork Alternative, for how public land should be managed in our watershed.
The North Fork Alternative represents a locally grown vision for the North Fork Valley that would keep energy development away from sensitive areas and fosters a diverse, resilient economy. We were glad to see that the BLM included the North Fork Alternative in the planning process in 2016.
In the name of energy dominance, however, the Trump Administration completely dismissed our proposal last week and opened the entirety of our watershed to oil and gas development, without proper restrictions to protect our farms, our food or our livelihoods.
If resource extraction takes off in our watershed, our waterways may become polluted, ruining our region’s model for farm-to-table community agriculture.
Earlier this year, VOGA received a grant to conduct a study on our member’s economic impact within Delta County. For the 167 members of our association, we found the estimated total market value of our farms to be $50-60 million, with estimated annual gross sales to be $4.1 million.
If we want to maintain these numbers and build upon them to support a sustainable, resilient local economy, we need strong protections for our lands, air and water. And that begins with stipulations set forth in the BLM’s plan.
Luckily, Sen. Michael Bennet is on our side. Time and again, his commitment to working with local farmers, ranchers, business owners and conservationists has shined through in the face of this terrible plan.
And now it is no different. Sen. Bennet, thank you for your commitment to protecting the North Fork Valley, and we hope to work with you on a path forward, as farmers and as the local community.
Colorado and other Western states will be hard pressed to shield their rivers and streams under a new federal Clean Water Act rule finalized last month, largely because hundreds of shallow Western rivers are no longer protected, and writing new state laws and finding the cash to fill the regulatory gap will likely take years to accomplish, officials said.
“We are pleased the final rule protects important agriculture exemptions and provides continued assurance that states retain authority and primary responsibility over land and water resources…However, the federal government’s decision to remove from federal oversight ephemeral waters, certain intermittent streams, and many wetlands is based on flawed legal reasoning and lacks a scientific basis,” Weiser said in a statement.
Whether Colorado will seek an injunction to stop the new rule from being enforced and whether it will join other Western states in a legal challenge isn’t clear. Weiser and Pfaltzgraff declined to discuss their legal strategy, other than vowing to take action.
The Colorado Water Congress, which represents hundreds of water agencies and agricultural interests, had been largely supportive of the new rule before it was finalized. But Executive Director Doug Kemper said the group hasn’t finished its analysis of the final version.
Formally adopted by the U.S. Environmental Protection Agency April 21, the move to significantly revise the WOTUS rule began after President Trump took office and vowed to reverse policies established under the Obama Administration.
The new rule has already triggered a handful of lawsuits seeking to stop the EPA from enforcing them. One was filed by cattle growers in New Mexico alleging that the rule is still too onerous, and at least two others have been filed by environmental interests in South Carolina and Massachusetts, who say the rule leaves too many streams unprotected.
And more are expected.
The Clean Water Act (CWA) has been legally hamstrung for years over murky definitions about which waterways fall under its jurisdiction, which wetlands must be regulated, what kinds of dredge-and-fill work in waterways should be permitted, what authority the CWA has over activities on farms and Western irrigation ditches, and what is allowable for industries and wastewater treatment plants to discharge into streams.
One rule never fits all
Administered by the U.S. Army Corps of Engineers and the EPA, the CWA, now nearly 50 years old, is credited with making U.S. waters some of the cleanest in the world. But it has also been, at times, fiendishly difficult to administer, in part because of the nation’s widely different geographies.
Go to the East or Midwest, and massive rivers, such as the Ohio and Missouri, are filled with barge and shipping traffic and are clearly “navigable.” That was the term early courts used to determine how water would be regulated. If a stream was considered navigable, it was subject to federal law.
But Colorado and other Western states rely on shallow streams that don’t carry traditional commercial traffic. The U.S. Geological Survey estimates 44 percent of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24 percent are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32 percent of Colorado streams are classified as being perennial, meaning they flow year round.
Under the new rule, only perennial and intermittent streams, or those deemed navigable, will be regulated, meaning that thousands of miles of streams in Colorado and other Western states would no longer be protected under the law.
A financial quandary
And that worries state water quality officials who are responsible for protecting Colorado’s streams.
They warn that writing state rules and finding millions of dollars in new cash to enforce water quality protections will be difficult, especially as the COVID-19 budget crisis unfolds. Officials of the Colorado Department of Public Health and Environment (CDPHE), which includes the Water Quality Control Division, say that until state rules are in place, new housing developments and other projects could be stopped because there is no mechanism yet to issue the permits that were once issued by the federal government.
“While the specific impacts of this rule still are being determined, there’s no question this rollback removes huge swaths of Colorado’s waters from federal jurisdiction—the most of any administration since the passage of the Clean Water Act in 1972. The state will need to put in significant resources to determine how to continue to protect these waters and to determine how this rule will be implemented as the rule is unclear as written,” the CDPHE said in an email.
“Specific construction projects and associated permitting processes that were originally covered…won’t be able to move forward without doing so illegally and harming the environment,” the CDPHE said.
Melinda Kassen, general counsel for the Theodore Roosevelt Conservation Partnership, said it would make sense to pursue an injunction to give the state time to set up its own regulations and find a way to fund them.
“If you read the economic analysis that accompanies the rule, there are assumptions that the states will step up and take this over. The potential is for it to be really dysfunctional. We’ve got to get something set up,” Kassen said.
EPA officials have said they don’t expect federal funding to enforce the Clean Water Act will be reduced, even though the new WOTUS rule is smaller in scope and governs fewer waterways.
Still the CDPHE and most opponents of the new rule believe millions of dollars will be needed to fill in any regulatory gap.
How far Colorado will go to challenge the new rule isn’t clear. The CDPHE’s Pfaltzgraff said his agency is still analyzing its next steps.
“It is now up to the state to provide the necessary protection of both Colorado’s economy and the environment,” Pfaltzgraff said in a statement. “We are going to do everything we can, while also addressing the impacts from COVID-19, to ensure Coloradans live in the healthy state they deserve.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at email@example.com or @jerd_smith.
The Southeastern Colorado Water Conservancy District and U.S. Bureau of Reclamation recently adopted a project management plan that will guide construction of the Arkansas Valley Conduit…
Terry Scanga, general manager of the Upper Arkansas Water Conservancy District, said he didn’t see the AVC having much impact on Salidans and others in the area. “It’s not going to change river flows,” he said. “It’s not going to impact the allocation (of water) communities in the upper basin get.”
After thinking about it for a second he said some transit loss might have a “minimal impact” on irrigators, but added that the advantages of the project far outweigh those potential effects.
[Sam] Braverman said they’re not creating any new water diversions from Colorado’s Western Slope. The big change, he said, is that water will now be piped from Pueblo to surrounding municipalities instead of letting it flow to them in the river, which will improve drinking water quality…
Salinity, selenium and uranium found in the natural environment all pose water-quality challenges for the Arkansas River in southeastern Colorado.
Several communities the conduit will serve currently can’t drink their tap water.
“There’s at least 5,000 people who literally have radioactive water coming out of their pipes,” Braverman said. “They can’t drink their water, and (the municipalities) can’t afford to filter it out.”
Braverman said another 11,000-12,000 people in the communities get their water from reverse osmosis, but the state doesn’t see those systems as permanent solutions because they put their effluent back into the river. He said drying the effluent, packing it and taking it to landfills would be too costly to be a realistic solution.
“There’s no way those communities could afford to do that,” he said. “The AVC is really the only answer for all of these communities; this a game changer for disadvantaged areas.”
The AVC will provide water for municipal and industrial use.
The project management plan describes how the project will be executed, monitored and controlled.
Under the plan, the Pueblo Board of Water Works will deliver AVC water to a point east of Pueblo. A contract among the Reclamation Bureau, Pueblo Water and Southeastern Colorado Water Conservancy District is in the discussion stage. From that point, the bureau will construct the trunk line, a treatment plant and water tanks, while Southeastern will coordinate with communities to fund and build connections.
Southeastern will serve as lead on the “spur and delivery lines” portion of the project and seek funding to design and construct this portion of the project, $100 million of which has already been secured from the Colorado Water Conservation Board, subject to legislative approval.
Braverman said they just started final design on the first 12 miles of the pipeline…
Braverman said communities the AVC will serve have been hearing about it for decades, but getting the $28 million recently was the first chunk of money they’ve secured to begin construction.
“That was a complete shift from where we were,” Braverman said. “Now it’s just a matter of the funding stream continuing.”
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.”
Attorney General Phil Weiser released the following statement regarding the final Waters of the United States rule that the U.S. Environmental Protection Agency and Army Corps of Engineers released today:
“The federal government’s final Waters of the United States rule is too limited and excludes a significant percentage of Colorado’s waters from Clean Water Act protections. The final rule threatens to create unacceptable impacts to the state’s ability to protect our precious state water resources, and, in the absence of extraordinary state efforts to fill the gaps left by the federal government, will harm Colorado’s economy and water quality.
“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 that are important to Colorado. 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.
“We are going to take legal action to protect Colorado waters and prevent the harmful aspects of the final rule from taking effect here.”
FromThe Grand Junction Daily Sentinel (Dennis Webb):
The Environmental Protection Agency and Army Corps of Engineers published the new rule Tuesday in the Federal Register, after announcing its components in January. It takes effect June 22.
Much of the ongoing dispute surrounds how “waters of the United States” are defined in implementing the Clean Water Act.
The Trump administration says its new rule applies to territorial seas and traditional navigable waters, perennial and intermittent tributaries to those waters, wetlands adjacent to waters falling under the rule’s jurisdiction, and some lakes, ponds and impoundments. Groundwater, ephemeral streams that flow only due to rainfall, many ditches and prior converted cropland are among waters exempted from the rule.
Weiser and the administration of fellow Democrat Gov. Jared Polis don’t totally oppose the new rule, praising its agricultural exemptions and saying it recognizes state authority…
The Colorado Department of Public Health and Environment says the rule eliminates many federal protections and almost 70% of Colorado waters could be impacted by the rule.
The final BLM plan for managing multiple uses on federal land in the Uncompahgre Plateau unveiled earlier this month did not limit oil and gas development in the North Fork Valley.
For nearly a decade, a group of farmers in the North Fork Valley joined with local tourism businesses and conservation groups to craft a resource management plan that could help the Bureau of Land Management shepherd the multiple uses of the valley’s public lands for the next 20 years.
More than 600 mining jobs disappeared in that decade of planning as the coal industry contracted and mines closed. Entrepreneurs in the lush communities around Paonia and Hotchkiss helped diversify the local economy from reliance on a single, extractive industry to an eclectic mix of organic agritourism and outdoor recreation.
The group’s North Fork Alternative Plan proposed energy development on 25% of the valley’s public lands, with increased protections for water and recreational attractions in the region.
“We put a lot of effort into negotiating with the BLM with what we thought was a pretty constructive way to share our values and how they should consider those values in managing the lands here,” said Mark Waltermire, whose Thistle Whistle farm is among 140 members in the North Fork’s Valley Organic Growers Association.
The final BLM plan for managing multiple uses on federal land in the Uncompahgre Plateau unveiled earlier this month did not limit oil and gas development in the North Fork Valley. And it did not weigh the state’s concerns over energy projects injuring wildlife, habitat and air quality. But as the first resource management plan released under the Trump Administration, it did represent the president’s pivot toward “energy dominance” by reducing regulations and greenlighting exponentially more coal mining.
“I feel betrayed by the system,” said Waltermire this week after spending the day fixing a tractor on his Delta County farm. “Most definitely this is a step backward. Really it’s even worse. We have lived with coal for 100 years and coal has proven to be compatible with the agriculture we practice here. But gas and the oil development is a different beast. It is a much more substantial threat to our economy, with increased traffic and the potential for spills. That could destroy our reputation that we have built for our valley. It could change everything.”
Earlier this month the agency released the final plan for managing the vast swath of the Western Slope, which is an update to the region’s 1989 RMP. Many of the wildlife, habitat and environment-focused objections to the Trump Administration’s “energy dominance” push to loosen regulations around domestic energy production — including those from Gov. Jared Polis, Colorado Parks & Wildlife, county commissioners, conservation groups and local residents — were dismissed.
As Colorado’s local BLM officials honed the preferred alternative — Alternative D — for the RMP last fall, the agency’s higher-ups crafted a new alternative. Alternative E identified energy and mineral development as key planning issues, and promoted access and a reduced regulatory burden alongside economic development as top priorities.
The BLM said the RMP would contribute $2.5 billion in economic activity into the region and support 950 jobs a year for the next 20 years.
The Alternative E plan:
Increased coal available for leasing by 189%, to 371,250 acres from 144,790 acres.
Added 13,020 acres to the region’s 840,440 acres open for mineral development.
Removed more than 30,000 [acres] from development in areas previously identified for leasing.
Cut acres the BLM could sell from 9,850 to 1,930.
Added six special recreation management areas and three extensive recreation management areas, setting aside 186,920 acres for recreation management.
The final draft of the proposed RMP conflicted with new state laws protecting wildlife, recreation access and improving air quality, so Polis last year sent a letter to the BLM’s Colorado director expressing his concerns as part of a consistency review that makes sure the agency’s plan aligned with state policies.
Specifically the state wanted the agency to limit the density of development — including oil and gas facilities — to one structure for every square mile to help protect wildlife corridors. It also asked the agency to develop a comprehensive plan to protect and conserve the Gunnison sage grouse and its habitat. Polis noted that the BLM plan allowed an increase in greenhouse gas emissions from oil and gas development that conflicted with last year’s House Bill 1261, which aims to cut those emissions by 90%. The BLM plan also conflicted with Senate Bill 181, which allows the state to consider public health and the environment when regulating oil and gas development.
The BLM’s final plan released this month did not include the state’s push for limiting the density of development or creating a region-wide wildlife and sage grouse conservation plan. But it did agree to protect 33,000 acres of riparian habitat from surface development and initiate a future statewide planning effort to study density on BLM land. The agency also agreed to coordinate with the state over potential development in sage grouse habitat.
“Our issue is that we worked on the preferred alternative, Alternative D and we sent that to Washington for approval. Alternative E was never contemplated and that’s what came back from D.C. We were not able to weigh in on that option,” said Department of Natural Resources director Dan Gibbs, who joined Polis in the only process available for commenting on the final proposal: a protest letter to the BLM over its proposed RMP.
Gibbs said he was happy the agency heard a portion of the state’s protests and the final decision included plans to work more closely with the state on a border-to-border plan for limiting development density…
The Public Employees for Environmental Responsibility group uncovered a BLM document summarizing an October 2018 meeting where the agency’s Washington D.C. leaders told Uncompahgre Field Office managers that their preferred alternative “misses the mark” and was “not in line with the administration’s direction to decrease the regulatory burden and increase access.”
San Miguel County, for example, asked the BLM to expand areas of critical concerns in the San Miguel River watershed and remove those riparian areas from mineral leasing. The final plan reduced the size of those areas and kept them open for mineral leasing. Montrose County asked for some areas inside Camelback, Dry Creek and Roc Creek to be managed for wilderness protection, but the final plan did not set aside any land in the county for wilderness protection.
San Miguel County commissioner Hilary Cooper said that while the plan is slightly improved by the promise to work with Parks and Wildlife on a density-limiting plan, “it still feels like the BLM is not a willing partner in the management of our land.”
This month he blasted the plan as “completely inadequate.”
“You see what happened today?” he said this week, after the price of a barrel of oil collapsed to below $0 for the first time as a stalled nation sits at home and oil stockpiles swell.
“That is really good news. I bet they are not going to look to develop new rigs for 10 years now,” Schwartz said. “We seem to have bought ourselves some time. Gas and oil are looking to survive right now. And if they look to fracking in our valley, they know we will fight them tooth and nail every step of the way. They don’t want that.
“And really, who knows what will happen in the future,” he said. “We will have a new administration in a year or four years and this whole thing could change. Either way, we are coming out the end of this solid and safe.”
FromThe High Country News [April 14, 2020] (Ophelia Watahomigie-Corliss):
Since time immemorial, the Havasupai have lived inside the natural wonder. We face yet another peril.
If you were one of the 6.3 million people who visited Grand Canyon National Park last year, chances are you stood on the rim and noticed a green ribbon of trees thousands of feet below you. The National Park Service calls it “Indian Garden.” And it was truly a garden, once: Our Havasupai relatives, the Tilousi family, lived and gardened there a century ago, until the National Park Service kicked them out. The Bright Angel Trail hikers use to reach this area today is an old Havasupai trail. When the Fred Harvey Company set up its hospitality industry on the South Rim near the turn of the 20th century, they hired Havasupai and created a work camp for them called Supai Camp.
Last year, the park celebrated its centennial. There were special events, but I doubt you heard anything about us, the Havasupai — the Guardians of the Grand Canyon. You may not even know about Canyon Mine, the proposed uranium mine that threatens Havasu Creek, the entire water supply of the Havasupai Reservation. Historical erasure has made us invisible. Now, our very survival is at stake, and we are asking for your help.
Inside what you call Grand Canyon National Park, the Havasupai have lived since time immemorial. We still live here. Fred Harvey and the Santa Fe Railway reached the Grand Canyon in 1901, and thousands of tourists came in their wake. Billy Burro was the last Havasupai to live in Indian Garden, a place that had been enjoyed by our people for centuries. But industry began to dictate where Indians could and couldn’t be, and public areas were forbidden because it was considered bad for business. Discrimination was rampant. At the Grand Canyon, we Havasupais were no longer welcome on our own land, because now it was reserved for tourists. Eventually, it was taken away altogether. Grand Canyon became a national park in 1919, and Billy, together with all Havasupais, were kicked out of Indian Garden. The people were relocated to the Indian work camp, with little option but to work for the railway. These were heartbreaking times for us, as our home became a tourist attraction. We had to endure constant racism; people like Billy were given the last name “Burro,” for example, as if we were no more than pack animals.
It’s time Grand Canyon officials took some responsibility and helped educate visitors about our history, land and water. The South Rim was taken by the federal government to create Grand Canyon National Park, and Havasupai voices were ignored when we pleaded for our homeland. In the early 1930s, the Park Service burned Supai Camp to the ground, and our people, including elders and children, were loaded into covered wagons in the snow, taken to the canyon’s rim and forced to walk down a grueling 17-mile trail to Supai Village. That is where the Havasupai Reservation was created in 1880. Before that, however, Supai Village was used as our summer home. Our longtime winter home had always been the newly designated park, but now we had lost it forever. In the 1970s, the park hired a new superintendent, who shut off our food, septic and water supply. Fortunately, we already relied on the springs in the canyon, and so we weathered the assault.
Now we have a new threat to deal with. Fifteen miles from the park boundary is a uranium mine that threatens the entire water supply for the 426 permanent residents of the Havasupai Reservation. The mine shaft at Canyon Mine is 1,470 feet below the surface, and if it leaks, it will contaminate the Redwall-Muav aquifer, which discharges into Havasu Creek — our only source of water. We have been fighting uranium mining for 40 years, but we cannot do it alone, especially if we continue to be erased.
Havasuw’ Baaja means the people of the blue-green waters. Those waters are the waters of Havasu Creek, and we are the original Guardians of the Grand Canyon. Thousands of more recent arrivals have since settled this land, built homes and raised families on our ancestral lands, and we know they love the canyon, too. Like us, they’ve come to know the names of the mountains, trails and waters in the region. The Grand Canyon has called them here, to make their lives in this incredible corner of the world. We are not so different after all.
And now it’s time for them — and for everyone who loves the Grand Canyon — to stand with us, to get to know who we are, and to work with us toward a just and shared vision for the next 100 years of this national park. We want the park to recognize our histories and to share that story permanently at the visitor center — to find a place for us in all their exhibits and in permanent signage throughout the park. Let us rechristen the landscape here, changing the names of places, trails and springs back to the Indigenous names, the ones the tribes are comfortable sharing with the public. All park rangers, personnel, outfitters and river runners should receive cultural sensitivity training, so they can teach visitors about the true history of the land.
Congress should pass S.3127 – the Grand Canyon Centennial Protection Act. This law will protect the 1 million acres of public land surrounding Grand Canyon National Park from the catastrophic impacts of uranium mining; it will also protect our homes in Supai Village.
Often, we gather at Red Butte, one of our sacred sites, to protest the project. There, we educate people about the many efforts to shut down the Canyon Mine, which is just three miles away. We invite you to join us here.
You are invited to stand strong with us and help us protect this landscape we all love, which is also the place we call home — the Grand Canyon. We have been trying to do this for many years, and we will continue to do for all generations to come. Please join us.
Ophelia Watahomigie-Corliss is a Havasupai tribal councilwoman. Email High Country News at firstname.lastname@example.org.
The Trump administration on Thursday gutted an Obama-era rule that compelled the country’s coal plants to cut back emissions of mercury and other human health hazards, a move designed to limit future regulation of air pollutants from coal- and oil-fired power plants.
Environmental Protection Agency chief Andrew Wheeler said the rollback was reversing what he depicted as regulatory overreach by the Obama administration. “We have put in place an honest accounting method that balances” the cost to utilities with public safety, he said.
Wheeler is a former coal lobbyist whose previous clients have gotten many of the regulatory rollbacks they sought from the Trump administration.
Environmental and public health groups and Democratic lawmakers faulted the administration for pressing forward with a series of rollbacks easing pollution rules for industry — in the final six months of President Donald Trump’s current term — while the coronavirus pandemic rivets the world’s attention.
With rollbacks on air pollution protections, the “EPA is all but ensuring that higher levels of harmful air pollution will make it harder for people to recover in the long run” from the disease caused by the coronavirus, given the lasting harm the illness does to victims hearts and lungs, said Delaware Sen. Tom Carper, the senior Democrat on the Senate Environment and Public Works Committee.
The EPA move leaves in place standards for emissions of mercury, which damages the developing brains of children and has has been linked to a series of other ailments. But the changes greatly reduce the health benefits that regulators can consider in crafting futures rules for power plant emissions. That undermines the 2011 mercury rule and limits regulators’ ability to tackle the range of soot, heavy metals, toxic gases and other hazards from fossil fuel power plants.
The Trump administration contends the mercury cleanup was not “appropriate and necessary,” a legal benchmark under the country’s landmark Clean Air Act.
The Obama rule led to what electric utilities say was an $18 billion cleanup of mercury and other toxins from the smokestacks of coal-fired power plants. EPA staffers’ own analysis said the rule curbed mercury’s devastating neurological damage to children and prevented thousands of premature deaths annually, among other public health benefits.
Controversy over pollutants from coal-fired power plants moved to a higher level Thursday after the U.S. Environmental Protection Agency announced it had revised a cost benefit analysis over the impacts of mercury emissions regulations imposed during the Obama era.
The federal agency said the restrictions on mercury emissions through technology controls were not justified, backing a 2015 U.S. Supreme Court decision that directed the agency to complete another review.
EPA Administrator Andrew Wheeler, in a teleconference, said the 2012 Obama-era rule remains in place and no additional mercury emissions will happen due to the revised analysis.
He added that critics of the Thursday announcement are either purposefully misreading the revisions or don’t understand…
In a major victory for the energy industry, the U.S. Supreme Court ruled against federal regulators’ attempts to curb mercury emissions from power plants in 2015, saying the government wrongly failed to take cost into consideration.
The 5-4 decision overturned the landmark rule, which was the first attempt by the EPA to curb mercury and other pollutants from coal-fired power plants.
Michigan’s lawsuit against the regulation was joined by 21 other GOP-led states, including Utah, in a fight to get it tossed.
The new “supplemental cost finding” announced by the federal agency found compliance costs for mercury emissions at power plants ranging from $7.4 billion to $9.6 billion annually due to the rule and the benefits in terms of reduction in costs such as health care to be around $6 million.
Wheeler added that the Obama administration’s approach was that any new regulation could be justified, regardless of the cost…
Moms Clean Air Force issued a statement expressing its outrage over the move.
“While America suffers devastating public health impacts of the coronavirus outbreak — a lethal respiratory pandemic — Andrew Wheeler and the Trump administration continue their cynical campaign to protect industrial polluters and undermine lifesaving pollution protections,” said co-founder Dominique Browning.
The organization added that the EPA is gambling with the health of children by giving any sort of nod to coal-fired power plants.
Wheeler dismissed any criticism, again reiterating the revision released Thursday was the result of a court-directed action to correct flaws of a previous administration’s conclusions over costs and benefits.
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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.
Town officials say private property owners are needed to see more improvements in Gore Creek water quality
The Vail Town Council on Tuesday told staff to draft a stream protection ordinance that would apply to private property in town. The creek in 2013 landed on a state list of “impaired waterways,” along with many other mountain towns. The town, the Eagle River Water and Sanitation District and other organizations have been working since then to improve water quality in the creek.
Much of that work starts with cleaning up what runs into the creek, including runoff from paved areas, pesticides and other pollutants.
In an April 7 presentation, town watershed education coordinator Pete Wadden reminded council members that after a few years of improvement, the creek’s scores regarding macroinvertebrate populations — the bottom of the creek’s food chain — dipped in 2018. Most of that was due to a change in the way those populations are counted, but those are the figures used by state officials.
Wadden noted that the town has made “huge progress” on its own property along the stream, but not as much on private property.
Wadden said the ordinance the staff is recommending includes a two-tiered setback, with more stringent rules closer to the stream.
Wadden added that the ordinance could restrict pesticide use in town, but the Colorado Legislature will have to pass a law that allows towns to pass those regulations.
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 Florida International University (Chrystian Tejedor):
Even minor amounts of human activity can increase nutrient concentrations in fresh waters that can damage the environment, according to a new study.
These findings suggest most U.S. streams and rivers have higher levels of nitrogen and phosphorus than is recommended. Although nutrients are a natural part of aquatic ecosystems like streams and rivers, too much of either nutrient can have lasting impacts on the environment and public health.
In Florida, toxic blue-green algal blooms have been triggered by releases of phosphorus-laden waters from Lake Okeechobee. Algal blooms produce a foul odor along waterways, decrease dissolved oxygen, threaten insect and fish communities and can even produce toxins that are harmful to mammals and humans.
“Ecosystems are being loaded with legacy and current nitrogen and phosphorus, and their capacity to hold these nutrients in many cases is decreasing,” said FIU associate professor John Kominoski, an ecologist and co-author of the study. “Not only are they being overwhelmed by nutrients, but they also have and continue to undergo hydrological and land use alterations.”
As human populations and demands increasingly grow, more land – including wetlands – is converted to agricultural and urban uses. This can introduce more nitrogen and phosphorus onto the land, which eventually makes its way into bodies of water. To make matters worse, soil erosion and climate change are also impacting nutrient pollution, leading to nutrient export to coastal waters, Kominoski said.
Nitrogen is most likely to come from transportation, industry, agriculture and fertilizer application, while increased phosphorus is more commonly the result of sewage waste, amplified soil erosion and runoff from urban watersheds.
“High concentrations of nitrogen and phosphorus in our waterways are concerning because they threaten both human and ecosystem health,” said David Manning, an assistant professor of biology at the University of Nebraska at Omaha and lead author on the paper. “Nutrients are essential for all life, but when they get too high in our waterways, they can fundamentally change the way a stream looks and operates.”
In addition to causing algal blooms, these elevated nutrient concentrations can lead to a lack of species diversity and oxygen depletion. High nutrient concentrations can also affect the purity of the water we drink.
Nutrient pollution is a complex problem. While there’s still a lot of work to be done to develop management tools and set thresholds for nutrient concentrations in streams and rivers, better understanding of how nutrients are transported through the interconnected network of waterways can help lead to solutions. Kominoski emphasized the importance of management solutions at local-to-global scales required to effectively manage various sources of nitrogen and phosphorus.
“Water is a shared resource that connects communities, landscapes, and continents across the globe,” Kominoski said. “We must increase the protection and rehabilitation of ecosystems and water resources throughout the world, especially as human populations increase and climate changes.”
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.”
Here’s the release from the National Ground Water Association:
A U.S. Department of Defense progress report released on March 13 states the number of sites it is investigating for potential release of per- and polyfluoroalkyl substances (PFAS) to the environment has grown from 401 to 651 as of September 2019.
The report summarizes the PFAS task force’s accomplishments since its establishment in July 2019 and its planned activities moving forward.
According to the report, no U.S. military personal on or off bases is drinking water above the U.S. Environmental Protection Agency’s lifetime health advisory level of 70 parts per trillion where the DoD is the known source of drinking water. Where levels exceed the EPA’s health advisory level, the DoD has provided bottled water and filters, and taken other actions as appropriate.
Additional updates include the following items.
No PFAS-free foam has met the strict safety standards the DoD requires to rapidly extinguish fuel fires. The DoD only uses aqueous film forming foam (AFFF) to respond to emergency events and no longer uses it for land-based testing and training. To limit environmental effects, the department treats each use of AFFF as a spill response. The DoD is investing $49 million through fiscal year 2025 in research, development, testing, and evaluation to find an effective alternative.
Each military service is collecting drinking water sampling results where DoD is the purveyor and maintaining the data in a centralized database.
Scientists are still studying the health effects of PFAS exposure. The DoD has provided $30 million and will provide an additional $10 million this year, to the Agency for Toxic Substances and Disease Registry to conduct exposure assessments in the communities around eight current and former military installations, as well as a multisite health study.
The task force will explore potential options for addressing PFAS overseas.
Here’s the release from the University of Sydney (Marcus Strom):
Experts call for phasing out of reliance on controversial herbicide
Glyphosate, or Roundup, is under scrutiny because of possible impacts on human health and ecosystems. Here Federico Maggi and Alex McBratney present the world’s first map detailing contamination hotspots of the controversial herbicide.
Agricultural scientists and engineers have produced the world’s first map detailing global ‘hot spots’ of soil contaminated with glyphosate, a herbicide widely known as Roundup.
The map is published as the world’s eyes fall on glyphosate and concerns about its potential impact on environmental and human health. Last year in the US the owner of Roundup, Monstanto (now owned by Bayer), was ordered to pay $US2 billion to a couple who said they contracted cancer from the weedkiller, the third case the company had lost.
This year, Australia is emerging as the next legal battleground over whether the herbicide causes cancer with a class action suit being prepared for the Federal Court.
“The scientific jury is still out on whether the chemical glyphosate is a health risk,” said Professor Alex McBratney, director of the Sydney Institute of Agriculture at the University of Sydney. “But we should apply the precautionary principle when it comes to the health risks.
“And even if no evidence emerges about these risks, it is time for the agriculture industry to diversify our herbicides away from relying on a single chemical.”
The map and associated study have been published in the journal Science of the Total Environment.
Lead author of the paper is Associate Professor Federico Maggi from the Sydney Institute of Agriculture and Faculty of Engineering. He said: “Glyphosate is a ubiquitous environmental contaminant. About 36 million square kilometres are treated with 600 to 750 thousand tonnes every year – and residues are found even in remote areas.”
The paper identifies hotspots of glyphosate residue in Western Europe, Brazil and Argentina, as well as parts of China and Indonesia. Contamination refers to concentration levels above the background level.
“Our analysis shows that Australia is not a hotspot of glyphosate contamination, but some regions are subject to some contamination hazard in NSW and QLD and, to a lesser extent, in all other mainland states,” Associate Professor Maggi said.
He said that given the widespread use of the herbicide, soil contamination is unpreventable. This is because it is hard to be degraded by soil microorganisms when it reaches pristine environments, or it releases a highly persistent contaminant called aminomethyl-phosphonic acid (AMPA) when it is degraded.
The researchers emphasise that contamination levels do not necessarily equate to any environmental or health risks as these are still unknown and require further study.
“Our recent environmental hazard analysis considers four modes of environmental contamination by glyphosate and AMPA – biodegradation recalcitrance, residues accumulation in soil, leaching and persistence,” Associate Professor Maggi said.
“We found that 1 percent of global croplands – about 385,000 square kilometres – has a mid- to high-contamination hazard.”
He said that contamination is pervasive globally, but is highest in South America, Europe and East and South Asia. It is mostly correlated to the cultivation of soybean and corn, and is mainly caused by AMPA recalcitrance and accumulation rather than glyphosate itself.
“While there are controversial perspectives on the safety of glyphosate use on human health, little is known about AMPA’s toxicity and potential impacts on biodiversity, soil function and environmental health. Much further study is required,” Associate Professor Maggi said.
Poor long-term policy
Professor McBratney said aside from the risks to human health, it is poor long-term agriculture policy to rely on glyphosate as a herbicide.
“Weeds are genetically adapting and building resistance to glyphosate,” he said. “And there is growing evidence that a new generation of precision herbicide application could further improve yields.”
Professor McBratney said Australia was well placed to economically benefit from the development of new herbicides.
“In these times of increasing food demand, relying on a single molecule to sustain the world’s baseload crop production puts us in a very precarious position,” he said. “We urgently need to find alternatives to glyphosate to control weeds in agriculture.”
On Friday, March 13, just as federal and state agencies ramped up emergency efforts to address the spread of COVID-19, the U.S. Department of Defense released a report summarizing its progress on PFAS issues through the end of last September.
According to its updated list, the military will assess whether activities at the Army National Guard armories in Rio Rancho and Roswell, the Army Aviation Support Facility in Santa Fe, and White Sands Missile Range have polluted groundwater with PFAS. The toxic compounds do not biodegrade, and have been linked to cancer and many other health problems.
Nationwide, the updated list of military sites under investigation swelled from 450 military locations to 651. The military does not appear to have notified states, including New Mexico, prior to making the list public.
According to the report from the Defense Department’s PFAS Task Force, the military’s earlier investigations focused on contamination from aqueous film forming foams, which the military used for firefighting and training from the 1970s until just a few years ago.
The updated progress report notes that the task force’s expanded investigations now also focus on “installations where PFAS may have been used or released.”
The report does not include details about specific activities that might have exposed people or the environment to PFAS. Defense Department spokesman Chuck Pritchard could not be reached for additional information before publication…
The recent Defense Department report also notes that the funding for PFAS cleanup included as part of the newly-passed National Defense Authorization Act is inadequate.
According to the report, aircraft rescue and firefighting vehicles will need to be retrofitted entirely—meaning that each vehicle component that came into contact with the firefighting foams will need to be replaced—at a cost of almost $200,000 per vehicle. That alone, according to the report, adds $600 million to earlier cleanup estimates.
Alternately, replacing the Defense Department’s current fleet of about 3,000 contaminated vehicles will cost $4 to $6 billion—and take 18 years.
The report also notes that as part of the Defense Authorization Act, the Defense Department has committed $30 million to study PFAS exposure in eight communities near former and current military installations. Those studies are happening in West Virginia, Colorado, Alaska, Massachusetts, Texas, New York, Washington, and Delaware. The military is also “developing a framework” to annually test the blood of military firefighters for PFAS levels.
Here’s a guest column from the Eagle River Watershed Council that’s running in the Vail Daily:
Dear ERWC: Winter is certainly going to return, but with a warm week behind us I’m thinking about spring cleaning and one of the items on my list is the adventure vehicle. What is the best way to clean my truck with the least impact on our rivers? — Mike, Eagle
Mike: Some might say the answer is to wash at home, where one has direct control regarding water usage and detergent choice. However, when it comes to the health of our watershed and overall water quality, that’s actually not recommended.
Washing a car at home can be more economical and allows time to get into the nitty-gritty details, but what it doesn’t allow for is the capture of contaminated water.
Modern and established car washes adhere to strict standards set in place by the Environmental Protection Agency and Colorado Department of Public Health and Environment. Through the Clean Water Act, they’re required to capture the water running off your car — full of phosphates, oils, dirt and other chemicals — and route it to treatment facilities or approved drainage facilities.
This allows for all of those chemicals to be neutralized and removed before entering the waterways. The drains at the end of driveways are for stormwater and they flow directly into our rivers and streams with no treatment whatsoever.
Water quantity should also be taken into consideration, especially given that we are in the arid west and water is a precious resource. Commercial car washes use 60% less water on average compared to washing a car at home, making them far more efficient at removing the six months of road dirt and magnesium chloride caked on your SUV.
Here in Colorado, commercial car washes are able to use “reclaimed water” or wastewater that has been treated to a safe level but can’t be used for drinking water. This reduces the stress on drinking water supplies and reduces the energy used for treatment.
There is an appropriate way to wash your car at home, should you decide that is still best for you. The EPA recommends the use of biodegradable detergents that are water-based and free of phosphates. It is also a best practice to wash vehicles on a lawn or similar surface. This allows for the contaminants to filter out through the ground before entering the streams — and hey, this waters your lawn too. Additionally, it is recommended to use some form of spray control, such as a pressure washer or other hose attachment to reduce water usage.
Are you curious about critters around the rivers? Do you want to know how snowpack is measured? Do you have questions about our watershed? The Watershed Council has answers! You can email email@example.com with your questions – and they might just be featured in articles like this one in our new series: What in the Watershed?
James Dilzell is the Education & Outreach Coordinator for Eagle River Watershed Council. The Watershed Council has a mission to advocate for the health and conservation of the Upper Colorado and Eagle River basins through research, education, and projects. Contact the Watershed Council at (970) 827-5406 or visit erwc.org.
City officials announced last week it received a $2.9 million grant from the Federal Emergency Management Administration for stabilization work along 9,000 feet of Cottonwood Creek, Biolchini said. The city plans to match the grant with $993,924 from funds intended to improve its stormwater management.
The work will also keep thousands of cubic yards of sediment from washing into Fountain Creek and flowing south to Pueblo, Biolchini said. The project is among 71 Colorado Springs must complete as part of an agreement with Pueblo County to better control the volume and quality of water flowing south in Fountain Creek…
Colorado Springs officials expect to spend $16 million in 2020 on stormwater improvements using fees paid by homeowners and nonresidential property owners, according to the city’s website. Officials must spend $100 million on stormwater projects, operations and maintenance from 2016 through 2020 to comply with the Pueblo agreement. Projects are on track to hit that goal, Biolchini said. The five-year benchmark is part of the requirement to spend $460 million over 20 years on stormwater improvement.
Construction to help prevent erosion of Cottonwood Creek is expected to be designed this year and completed in 2021, he said.
The construction will likely include reshaping the banks so they have gradual slopes and burying hardened structures to keep the creek from changing course, he said.
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.”
…there’s a risk that [Robin Andrews] and other people with illnesses linked to the chemicals could end up with no compensation for their health problems. That’s because a major manufacturer, DuPont, recently unloaded its PFAS obligations to smaller companies that do not have the money to pay for them.
For decades, DuPont manufactured PFAS-type chemicals in a plant close to Andrews’ home in this tiny South Jersey town on marshy land near the Delaware River. Her grandfather and father both worked at the sprawling plant, known as the Chambers Works, which covers 1,400 acres of riverbank in the shadow of the bridge to Delaware.
In 2017, after she developed unexplained high liver enzymes, her well water tested positive for PFAS; she now runs it through a large filtration system in her basement and has it monitored every three months.
DuPont “could have been a great company and a very good thing for this area had they chosen to take care of people and to be responsible with the way they disposed of these toxins,” Andrews told NBC News. “But they weren’t. I believe it was an economic decision to put people at risk.”
Jeff Tittel, senior chapter director of the New Jersey Sierra Club, has watched DuPont’s moves with concern. “They are setting up other companies to take the fall on liabilities that won’t have enough money, so even if people win lawsuits, they will get nothing or very little,” he said.
On Wednesday, the EPA disclosed it “has multiple criminal investigations underway concerning PFAS-related pollution.” The agency did not identify the entities being investigated and it could not be determined if DuPont is one of them.
Daniel Turner, reputation and media relations manager for DuPont, said the company had not received an information request from the EPA related to a criminal investigation…
In 2015, as problems associated with PFAS were becoming clearer, DuPont began a series of complex transactions that transformed the company’s structure. As a result of the transactions, responsibility for environmental obligations associated with the chemicals shifted onto other entities.
The first shift by DuPont occurred in 2015, when it assigned the great majority of liabilities associated with PFAS to The Chemours Company, a new entity containing DuPont’s chemicals business that was spun off to its shareholders…
In a statement provided to NBC News, DuPont spokesman Turner denied that the Chemours spin-off was an attempt to evade environmental and legal liabilities associated with PFAS. “The reason for the spin-off,” Turner said, was that DuPont “was seeking to transform itself into a higher growth, higher value company” and “saw more growth opportunities in its other businesses.”
A second spin-off was Corteva Inc., in 2019, an agriculture science company that holds other legacy DuPont operations and some PFAS liabilities.
The third transaction occurred last June when so-called new DuPont was created. Formerly known as DowDupont, its businesses include electronics, transportation and construction. Because of the two other spin-offs, new DuPont is two steps removed from PFAS obligations…
Chemours, with primary responsibility for the estimated tens of billions of dollars in PFAS obligations, does not have anywhere near the money or assets to cover them. Chemours’ net worth — its assets minus liabilities — stood at just $695 million as of Dec. 31, 2019.
If Chemours becomes insolvent, Corteva Inc. will be responsible, corporate filings show. Corteva does not have the funds to cover tens of billions in estimated PFAS costs either. Turner declined to say whether PFAS responsibilities would ultimately revert to DuPont if Chemours and Corteva are unable to pay them. A lawyer for Chemours declined to comment.
Corporate spin-offs like DuPont’s that transfer liabilities associated with problematic businesses are becoming more common, analysts say, especially in the energy and chemical fields.
“You’re seeing it again and again,” said Clark Williams-Derry, an analyst with the Institute for Energy Economics and Financial Analysis. “Spinning off your legacy liabilities into a separate corporation and to some other responsible party appears to be part of the standard playbook in these industries.”
DuPont is not the only PFAS manufacturer under scrutiny. Another is 3M, headquartered in Minneapolis. Both companies stopped making PFAS over a decade ago. 3M is fighting the suits and says it is cooperating with government investigators.
DuPont and 3M both face lawsuits over problems allegedly linked to PFAS. But DuPont’s shift of its PFAS liabilities to Chemours has drawn its own raft of litigation. In a complaint filed last year against DuPont by Chemours, it contended that the 2015 deal was fraudulent. DuPont knew and intentionally hid the scope of the liabilities when it dumped them into Chemours, the company alleged.
In response, DuPont says Chemours executives were well aware of the PFAS problems at the time of the spin-off and could not have been duped. Next up is the judge’s ruling on oral arguments in the case…
Legal filings allege DuPont knew for decades that PFAS posed a threat to humans…
In early PFAS cases, lawyers for plaintiffs found internal, undisclosed DuPont documents showing toxicity in PFAS. While the company has acknowledged the findings in court filings, it argued that they were either inconclusive or applicable only to employees working with the chemicals, not to people drinking tap water near DuPont facilities.
The New Jersey lawsuit alleges that DuPont began to recognize toxicity in the most common PFAS chemical in the 1960s but did not tell the state or local communities about the problem.
DuPont has not answered the New Jersey complaint but in previous lawsuits, DuPont has denied that it hid PFAS risks. DuPont spokesman Turner declined to say how long DuPont knew about the toxicity of PFAS, but said the company has provided extensive information over the years to the EPA about potential harm related to the chemicals.
The New Jersey suit also says DuPont hid the results of a 1981 blood sampling study of pregnant employees who worked with the chemicals that found one-quarter had children with birth defects…
The potential that shareholders will take on undervalued liabilities is greater in spin-offs, merger experts say. That’s because the kind of in-depth due diligence that a third-party buyer would do to to determine possible liabilities is not typically done by new owners in a spin-off. Those owners are essentially trusting the parent company to be forthcoming about the obligations.
Had DuPont instead sold its legacy chemicals businesses to another company, the buyer would have dug into the obligations associated with its PFAS production prior to the purchase. Any resulting deal would take those potential liabilities into account, resulting in either a lower sale price, an insurance policy or a right by the buyer to recover costs from DuPont later.
Because DuPont’s existing shareholders took on the liabilities in the Chemours and Corteva spin-offs, that detailed assessment was not done. The Chemours lawsuit alleges that DuPont pursued the spin-off so it “could control the transaction structure and economics” after concluding that “no rational buyer” would accept the liabilities associated with PFAS.
DuPont spokesman Turner disputed this, saying that multiple firms submitted proposals to acquire Chemours before the spin-off. He declined to provide specifics about those companies, however, or their bids.
Back in 2015, when DuPont was preparing to spin off Chemours, the parent company made insufficient disclosures about the environmental liabilities to be shouldered by the new shareholders, the Securities and Exchange Commission found. The company had to provide more details, regulatory filings show.
House Bill 1143 — which will be discussed in the House Finance Committee on Feb. 27 — would create a seven-member environmental justice advisory board to identify mitigation projects in affected areas. The bill also aims to add a new position in CDPHE focused on environmental justice to lead the advisory board.
“A lot of these communities have never experienced justice,” said Rep. Dominique Jackson, an Aurora Democrat who is helping push the bill. “The health implications are substantial when it comes to air and water quality violations. These communities know what they need better than any person in the legislature.”
The current maximum fine for air quality violations is $15,000 per day, per violation; for water quality violations, it’s $10,000. The bill would increase both fines to $42,357, which is in line with the federal maximum.
Current law allocates all water quality fines to the Water Quality Improvement Fund. The new bill would authorize the use of money in that fund to pay for projects addressing impacts to environmental justice communities. Currently, all air quality fines go into the general fund. The bill would create the community impact cash fund to go toward environmental mitigation projects.
“I worked really hard, with a coalition of community members, to come up with the definition of an environmental justice community,” Jackson said. “… I just really wanted to make sure that people who didn’t feel as though they have had a voice in the conversation, who’ve been experiencing impacts in their community, generally speaking for quite some time, were able to come to the table.”
The bill defines an environmental justice community as one where residents “are predominantly minorities or have low incomes; have been excluded from environmental policy-setting or decision-making processes; are subject to a disproportionate impact from one or more environmental hazards; or experience disparate implementation of environmental regulations, requirements, practices and activities.”
“Fines are powerful enforcement tools, but they aren’t the only options available to us,” said Jessica Bralish, a state health department spokeswoman.
“Our priority is to bring facilities into compliance, resolve violations and take steps to ensure long-term compliance,” she said. “We assess the maximum daily fine in response to particularly egregious, dangerous or repeated violations. Our goal is always to enforce state laws in pursuit of our broader mandate — protecting and preserving the public health and environment in Colorado.”
One hurdle for the bill: the Taxpayer’s Bill of Rights, which limits the amount of revenue the state can collect and spend. The bill sponsors are exploring if it’s possible to classify the fines as “damages” so that the funds won’t fall under TABOR. Other prime sponsors of the bill include Rep. Serena Gonzales-Gutierrez, a Denver Democrat, and Sen. Faith Winter, a Westminster Democrat.
John Putnam, the director of environmental programs at CDPHE, said the increase in fines will bring Colorado up to federal standards.
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.
SB20-008, sponsored by Sen. Faith Winter, D-Westminster, would increase penalties for polluting state waters from $12,500 currently to $25,000 per day for “criminal negligence” violations, as well as a year in jail, and from $25,000 currently to $50,000 per day for “knowing and intentional” violations, as well as up to three years behind bars.
Knowing or intentional pollution would be prosecuted as a class 5 felony.
While testifying to the Senate Agricultural & Natural Resources Committee on Feb. 6, Winter said the bill aligns Colorado’s own pollution laws under the Water Quality Control Act with the federal Clean Water Act governing the same crimes.
“Federal action has been going down in recent years to protect our waterways,” Winter testified, saying that recent reports showed the number of new cases prosecuted by the federal Environmental Protection Agency are at a 20-year low, and that the agency was too short-staffed to adequately police pollution.
No water pollution crimes have been prosecuted under Colorado law, while only two have been prosecuted under federal law in the past 10 years, Jason King testified on behalf of the Colorado Department of Law, which supports the bill.
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.
As Colorado steps up its efforts to reduce air pollution around Denver and across the state, a broad coalition of advocates and Democratic lawmakers are pushing for greater emphasis on “environmental justice” — and it starts with making sure that communities, regulators and industry know exactly what that is.
“There is not a definition, in Colorado state statutes, of what an environmental justice community is,” says Representative Dominique Jackson, a Democrat from Aurora. “So we’re putting that on the books — that certain communities that haven’t had a seat at the table are guaranteed to have a seat at the table.”
On Monday, February 10, Jackson and other lawmakers unveiled HB20-1143, which would increase the maximum penalties that regulators can impose on violators of state air- and water-quality rules, and give affected communities more of a say in how that money is spent.
tion projects” in affected communities.
“This bill is about air and water quality, it’s about health and safety, but most of all, it’s about environmental justice,” said Representative Serena Gonzalez-Gutierrez, a Democrat from Denver and one of the bill’s lead sponsors, at the press conference announcing the bill. “It’s no secret that when corporations put profit over people by polluting the air we breath and the water our children drink, it’s often low-income communities that are the hardest hit. It’s often black and brown communities that are disproportionately impacted.”
Officials at CDPHE are ramping up the state’s efforts to clean up its air following the passage of new state-level emissions rules and an Environmental Protection Agency ruling that classified the Front Range as a “serious” violator of federal air-quality standards. It’s an issue that hits especially close to home in north Denver communities like Globeville and Elyria-Swansea, as well as the town of Commerce City, all located in the shadow of some of the state’s largest sources of air pollution, including the Suncor Energy oil refinery.
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.
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.