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

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

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

In this session, you’ll learn about:

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

    From The Pueblo Chieftain (Robert Boczkiewicz):

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

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

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

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

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

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

    From The Colorado Springs Gazette (Billie Stanton Anleu):

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

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

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

    County officials have echoed those concerns.

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

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

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

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

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

    From The Pueblo Chieftain (Anthony A. Mestas):

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

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

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

    The Lower Ark district filed the same motion in November.

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

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

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

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

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

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

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

    From The Pueblo Chieftain (Anthony A. Mestas):

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

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

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

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

    […]

    By intervening in the lawsuit Pueblo County hopes to:

    Support the EPA and CDPHE in its regulatory mission.

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

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

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

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

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

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

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

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

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

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

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

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

    @csindependent: A toxic water supply has left beloved Venetucci Farm in limbo

    Widefield aquifer via the Colorado Water Institute.
    Widefield aquifer via the Colorado Water Institute.

    From the Colorado Springs Independent (Nat Stein):

    To say that the 2016 season didn’t go well for Venetucci Farm is an understatement.

    It was historically bad, but not for lack of rain or a pest infestation or anything that farmers are accustomed to dealing with. First, toxic chemicals discovered in the farm’s water supply in May prompted the suspension of produce sales mid-season. Then, at season’s end, a brutal hail storm wiped out the remaining solace of Venetucci’s fans — its hallmark pumpkin crop.

    News isn’t improving. In a normal year, planting would be coming up in late March, but operations on the farm are currently stalled. This could be the first season in over a century that area consumers go without fresh, local food from the region’s oldest working farm.

    Uncertainty reigns. Nobody knows the full consequences of irrigating crops with water containing perfluorinated chemicals (PFCs) at levels above what the Environmental Protection Agency considers safe for drinking. And then there’s the question of who will own and run Venetucci Farm, which was entrusted to the Pikes Peak Community Foundation in 2006 by Bambina “Bambi” Venetucci after the 2004 death of her husband, local farmer Dominico “Nick” Venetucci.

    Bambi passed away in 2015 with the desire and belief that the family’s land would carry on in perpetuity as a working farm that welcomes schoolchildren to come pick pumpkins, free of charge, every fall. (Their generosity remains legendary — there’s a statue of Nick next to the Pioneers Museum and a depiction of him gifting a pumpkin on the label of Bristol Brewing Company’s highly popular annual Venetucci Pumpkin Ale.)

    But, even before the water crisis arose, PPCF, under new leadership, had begun reevaluating all of its legacy assets, including Venetucci Farm. Over the past few months, an advisory committee has been meeting to vet visions for a post-PPCF Venetucci, with a recommendation expected in early March. The board will take it from there — without any chance for public input.

    Whatever the foundation decides to do with the farm, recently installed CEO Gary Butterworth is unequivocal that the legacy of Nick and Bambi Venetucci will carry on. But no matter who stewards it into the future, their legacy may already be tainted by decades of chemical build-up in the aquifer beneath the farm.

    Indeed, none of this sits well with longtime consumers like across-the-street neighbor Brittany McCollough. She’s less worried about what’s in the water — “everything’s poison these days,” she notes dryly — and more worried that those who actually eat Venetucci-grown food no longer have a seat at the table.

    “It seems like the ‘community’ part has been taken out of ‘community foundation,'” she says, telling the Independent that “[consumers] have been left in the dark even though we’re impacted the most.” A teacher during the school year, McCollough helps run Venetucci’s farm stand over the summers, distributing weekly boxes of produce to community-supported agriculture (CSA) members in exchange for her own share. She’s been getting fresh vegetables for herself and her young son this way for about seven years. For her, all the extraneous factors affecting the farm are beside the point. “There are so many choices to make in the world and knowing the people who grow my food, right across the street in my own watershed — that’s really important to me,” she says.

    From the Colorado Springs Independent (Nat Stein):

    Scientists from the Colorado School of Mines in Golden, the University of Colorado at Colorado Springs and Axys, a private lab in Canada, all came to the farm to investigate. They took water, soil, plant and meat samples to test for PFC content. It took months for results to come back, and even then, their data took the form of raw numbers — not risk assessment, which is what the farm really needed.

    For an official interpretation of the results, Venetucci counted on the Colorado Department of Health and Environment (CDPHE). Chief Epidemiologist Dr. Mike Van Dyke was willing to oblige, since he had received multiple inquiries from citizens who wanted to know whether food grown with PFC-contaminated water was safe. There just wasn’t much research out there.

    “If it were something like lead, that’s more common and actually regulated, there’d be a framework out there,” he tells the Indy. “But basically what we did was the School of Mines had done some research on uptake of PFCs by fruits and vegetables. So they’ve developed models saying, ‘If you have x amount in soil and x amount in water, you’re likely to end up with x amount in the vegetables.”

    So he and his team looked at the data those other labs had previously collected, picking out the highest concentrations to use in their analysis.

    “We used maximums, not averages, to kind of get a worst case scenario,” Van Dyke says. “The idea was to get a conservative estimate at first, then become more lenient over time if we get additional data that warrants it.”

    For the other variables, the team borrowed federal standards: EPA’s drinking water advisory for the acceptable limit of PFCs and USDA’s recommendations for daily food consumption. (That’s three vegetable servings and two fruit servings for children, and one more of each for adults. A serving equates to 100 grams of vegetables and 150 grams of fruit.)

    Given all that, CDPHE found that eating the federally-recommended amount of Venetucci’s produce, even with the highest possible uptake levels, likely won’t expose you to dangerous levels of PFCs. And in reality, let’s admit it, most people get their produce from different sources and don’t eat enough of it.

    #Colorado river otters enjoying modest success

    North American River Otter: Live in coastal estuaries, rivers and even mountain streams. Sightings of river otters in the wild are rare because they prefer uninhabited areas with clean, clear water where food is abundant. Photo credit South Carolina Aquarium.
    North American River Otter: Live in coastal estuaries, rivers and even mountain streams. Sightings of river otters in the wild are rare because they prefer uninhabited areas with clean, clear water where food is abundant. Photo credit South Carolina Aquarium.

    From The Denver Post (Bruce Finley):

    Colorado Parks and Wildlife biologists say that, after completing the reintroduction of about 120 young male and female otters 25 years ago, otters are multiplying with a statewide population now numbering in the hundreds.

    The recovery here, mirrored in other states that reintroduced otters decades ago, stands out in the struggle for wildlife survival because biologists consider otters a “sentinel species” that is highly sensitive to pollution. It shows how a relatively modest state effort to keep an imperiled species off the federal endangered species list — the U.S. ecological equivalent of an emergency room — can lead to a comeback.

    State-run reintroduction “has made a significant contribution to the conservation of river otters throughout the state of Colorado,” U.S. Fish and Wildlife Service biologist Leslie Ellwood said. “We’re now seeing river otters in streams and lakes where they had not been seen for the past 100 years.”

    Although Colorado officials could not produce current population survey data or a peer-reviewed study, and while otters still are classified as “threatened” in the state, CPW tables indicate otters exist in 38 of 64 counties.

    This means habitat suitable to otters in Colorado is relatively healthy, said Reid DeWalt, assistant director of wildlife and natural resources for the state. “CPW is vested in the long-term sustainability and balance of wildlife for future generations.”

    […]

    Otters eat practically any animal that moves in riparian corridors: fish, frogs, snakes, turtles, crayfish, birds, salamanders. They grow to be 3- to 4-feet long, with males weighing about 25 pounds and females about 18 pounds. When predators such as coyotes lurk, otters have the ability to chase them away. And they energetically chase one another, sliding crazily along muddy banks — activities biologists describe as pure play for fun.

    The prospect of a widening recovery has emerged as a success at a time when conservationists warn that scores of other plant and animal species are vanishing…

    Starting in 1976, Colorado wildlife crews reintroduced river otters at five sites: Denver Water’s Cheesman Reservoir, Rocky Mountain National Park, and the Gunnison, Piedra and Dolores rivers. Similar efforts were happening elsewhere in the United States. The International Union for the Conservation of Nature estimates that more than 4,000 otters were reintroduced across 21 states.

    Colorado kept up the reintroductions until 1991.

    In 2003, members of the Colorado Wildlife Commission decided to down-list the status of the river otter to “threatened” from “endangered.” It’s still illegal to hunt them.

    Colorado wildlife officials contend that the reintroduced otters are thriving with established populations around the Western Slope in waterways, including the Colorado, Green, Yampa, Dolores, Gunnison and San Miguel rivers, as well as tributaries in each basin.

    Yet state monitoring is limited. CPW relies on Colorado residents to serve as eyes and ears — filling out and submitting forms giving details when they spot otters. Mink, beavers and muskrats share the same habitat as otters and, sometimes when seen swimming, are confused with otters.

    U.S. Fish and Wildlife Service officials, charged with enforcing the federal Endangered Species Act, welcome state efforts to head off crises, said Marjorie Nelson, the USFWS regional chief of ecological services.