Water quality study targets 11 tributaries to become ‘Outstanding Waters’ — Steamboat Pilot & Today #YampaRiver

Yampa River Basin via Wikimedia.

Click the link to read the article on the Steamboat Pilot & Today website (Suzie Romig). Here’s an excerpt:

To study 11 tributaries on U.S. Forest Service land in the Yampa River basin, organizers and volunteers are traveling four seasons per year by snowmobile, ATV, raft, four-wheel drive, mountain bike or on foot to test stream water quality. The goal is to collect water quality samples and data so that the tributaries can be considered for the Outstanding Waters designation program that helps to safeguard water quality. Jenny Frithsen, environmental program manager at nonprofit Friends of the Yampa, is leading the local Outstanding Waters two-year study and application process to determine if the candidate tributaries on Forest Service land qualify for the water quality protection program. The 11 streams are located in four general areas across northern Routt County and in Steamboat Springs, including Elkhead and First creeks in the west California Park area, middle fork of the Little Snake River north of Columbine, four tributaries that feed into the Elk River east of Clark, and Fish, Walton and Soda creeks near Steamboat.

Friends of the Yampa staff are working with the Colorado River Basin Outstanding Waters Coalition formed in summer 2022 to identify and try to protect “clean water” across the state and to designate more headwater streams as outstanding waters deemed worthy of increased protections by Colorado. Frithsen said similar studies are underway in the region, for example, in the Roaring Fork and Eagle River watersheds…

The water quality sampling at 13 different sites in the Yampa River basin started in summer 2022 and will be completed in spring 2024 with a decision on the designations in summer 2024, Frithsen said. The designation would not impact irrigation water rights that are based on water quantity but would serve as an added layer of protection from dangers to water quality from point-source pollution such as wastewater treatment plant discharge or runoff or discharges from mining. Outstanding Waters is the highest level of anti-degradation protection under the federal Clean Water Act, Frithsen said. The designation prevents new or increased sources of pollution, but preexisting uses such as grazing and recreation can continue at current levels as long as pollution is not increased.

The Outstanding Waters designation is awarded through the Water Quality Control Commission of the Colorado Department of Public Health and Environment. For a stream or part of a stream to qualify, the water must meet specific quality criteria gathered across 12 key parameters such as dissolved oxygen, pH, E. coli bacteria levels, nutrients, metals and water temperature. Partners on the local project include The Pew Charitable Trusts and two nonprofits, American Rivers and Mountain Studies Institute in Durango.

Grand Lake advocates to ask lawmakers to endorse restoration, as clarity continues to deteriorate — Fresh Water News

Grand Lake. Photo credit: Julie Falk/Flickr Creative Commons

Click the link to read the article on the Fresh Water News website (Jerd Smith):

Advocates for Grand Lake, Colorado’s largest and deepest natural lake once known for its crystal clear waters, will ask state lawmakers in 2024 to approve a resolution calling for its restoration in an effort to win statewide support and break a bureaucratic stalemate that has stymied efforts to restore its clarity.

The move comes one year after the legislature’s Water Resources and Agriculture Review Committee was asked to intervene in the issue, which centers on the federal Colorado-Big Thompson Project (C-BT). The C-BT moves water through Grand Lake before pumping it under the Continental Divide to the Front Range, where it serves 1 million people and hundreds of farmers. Lawmakers declined to act at that time, citing the need for more study.

Advocates have long been frustrated at the failure to find a permanent fix to the lake’s clarity issues, whether it’s through a major redesign of the giant system or more operational changes. They are hopeful that if they can get state lawmakers to approve the resolution, they may have more leverage with their federal partners.

“[The resolution] doesn’t have any teeth,” said Mike Cassio, president of the Three Lakes Watershed Association, a nonprofit focused on protecting Grand Lake and two reservoirs in the area: Granby Reservoir and Shadow Mountain Reservoir. “But it is something state legislators could vote on, and it would put people on the record.”

Map of the Colorado-Big Thompson Project via Northern Water

For years, the once-clear lake has been clouded by turbidity created by the pumping. Before the C-BT was built, clarity was 9.2 meters, roughly 30 feet. The goal now is 3.8 meters, according to Esther Vincent, Northern Water’s director of environmental services. Northern Water jointly operates and maintains the C-BT along with the U.S. Bureau of Reclamation.

Historic protections?

Early on locals had hoped the lake would be protected from damage caused by the giant water systen. A 1937 federal law, U.S. Senate Document 80, was approved in part to protect Grand Lake’s recreational and scenic values, and a 15-year-old state standard was designed to improve water clarity, but officials acknowledge more must be done.

As advocates seek to broaden support, the Three Lakes Technical Committee, a working group that includes multiple federal and state agencies and interest groups, restarted formal meetings Sept. 1 for the first time since 2014, though other groups have met more often, examining annual operating results and testing new management scenarios. The idea behind restarting the technical meetings, is in part, to identify shorter-term fixes that could be quickly implemented and paid for more easily.

Vincent sees the resumption of the technical committee meetings as a hopeful sign.

“We have a lot of people who are newer to the work and it’s important that we bring everybody up to speed,” she said. “We would like to see clarity get better.”

This year, thanks to an exceptionally wet winter and spring, and high runoff, the lake has been clearer than locals have seen it in decades.

Grand Lake Mayor Steve Kudron said seeing the lake temporarily improve this summer has been gratifying.

“My goal has always been to maintain the recreational, scenic natural quality of Grand Lake and I have that this summer … I should smile while keeping an eye on what we’re going to do when it gets worse,” Kudron said.

Grand Lake via Cornell University
A Colorado landmark

The lake is considered a prime jewel in Colorado’s scenic landscapes. Located on the western edge of Rocky Mountain National Park, it has been a tourist haven since the late 1800s.

But it changed when the C-BT began construction in the late 1930s. The system gathers water from streams and rivers in Rocky Mountain National Park and Grand County, and stores it in man-made Lake Granby and Shadow Mountain Reservoir. From there it is eventually pumped up into Grand Lake and delivered via the Adams Tunnel under the Continental Divide to Carter Lake and Horsetooth Reservoir on the Front Range

During the pumping process, algae, certain toxins and sediment from Shadow Mountain are carried into Grand Lake, clouding its formerly clear waters and causing algae blooms and weed growth, and harming recreation.

In 2008, the Colorado Water Quality Control Commission moved to set a clarity standard, but it has since been replaced with a clarity goal and the aim of achieving “the highest level of clarity attainable.”

Northern Water and others have implemented different management techniques, including changing pumping patterns, to find ways to improve water quality in all three water bodies. In some years, Northern has been able to improve clarity, but not to historical levels.

In 2016, Reclamation took the first steps required under the National Environmental Policy Act of 1969 (NEPA) to do the scientific and engineering studies and public hearings that would be required for a major structural fix to the system. But Reclamation stopped the process in 2020, saying that it could not definitively establish any structural alternatives that would work, nor could it find a way forward on funding what could be a wildly expensive project, according to Jeff Rieker, manager of Reclamation’s Eastern Colorado Area office.

Redesigning the massive 85-year-old water project could easily cost hundreds of millions of dollars, officials said and would take years of permitting. It would also likely require local partners to share some of the cost.

Long-running frustrations

Rieker said the resumption of the technical meetings, scheduled to occur monthly through next April, could help move everyone closer to a solution.

“We certainly recognize the concerns and frustrations that are out there … my hope is that through these dialogues that we are having this year, it will lead to people being less frustrated,” Rieker said.

Shadow Mountain Dam via USBR

Cassio said one avenue that may hold promise would be to focus on Shadow Mountain, a shallow manmade reservoir whose warm temperatures, high levels of algae and weeds, and sediment loads do the most damage to Grand Lake. If technology could be introduced to harvest the weeds and aerate Shadow Mountain, that could improve Grand Lake without a major federal infrastructure project.

Rieker said that his agency is very interested in that approach.

At the same time, Northern and Reclamation, along with other Grand Lake interest groups, will update the Colorado Water Quality Control Commission in November on their efforts since 2016. Whether the state will take additional action isn’t clear yet.

Cassio said he remains deeply worried that the lake’s long-term condition will not improve, especially as more frequent droughts and climate change reduce streamflows and degrade water quality even further.

Getting state lawmakers on board could generate a new level of support for the lake. “I am hoping we can get the resolution on the books and that it means something,” Cassio said. “If we have a couple more years of bad snowpack and rainfall, it’s going to be ugly.”

Fresh Water News is an independent, nonpartisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org.

More by Jerd SmithJerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.

D.C. Circuit Court hits the brakes on Uinta Basin Railway, but oil transport through Colorado is still on the table: Aug. 26 protest turns celebratory for #Colorado citizens fighting #Utah project — @AspenJournalism #ActOnClimate

Close to 30 boats floated the Colorado River through Glenwood Canyon on Aug. 26 as part of a flotilla protesting the Uinta Basin Railway. The event turned celebratory after the Aug. 18 ruling from the U.S. Court of Appeals that overturned the Federal Surface Transportation Board’s 2021 approval of the project. CREDIT: AMY HADDEN MARSH/ASPEN JOURNALISM

Click the link to read the article on the Aspen Journalism website (Amy Hadden Marsh):

Uinta Basin Railway (UBR) opponents floated a portion of the Colorado River on Aug. 26 to celebrate a setback to the UBR. Organized by two citizen groups — Colorado Rising and 350 Roaring Fork — a flotilla of about 30 boats and 100 activists put in at Grizzly Creek in the Glenwood Canyon and landed at Two Rivers Park in Glenwood Springs for a rally and picnic. The flotilla was originally planned as a protest to draw attention to the river and what would happen if a train carrying waxy crude derailed in the Glenwood Canyon. 

“We’re not fighting a train. We’re not fighting increased train traffic. We’re a rail town,” said former Glenwood Springs Mayor Jonathan Godes, who is now a City Council member and who emceed the rally. “We’re fighting a train that is full of toxic, waxy crude. To think that five trains, two miles long, every day would not derail in one of the most difficult, sensitive places on the entire line is crazy.”

The Colorado River is the lifeblood for local communities and provides water to 40 million people across the western U.S. and parts of Mexico. The proposed UBR — an 88-mile line that would connect oil fields in the Uinta Basin to the national rail network near Price, Utah, in order to access Gulf Coast refineries — would increase the amount of waxy crude shipped east by rail to between 130,000 to 350,000 barrels per day. The federal Surface Transportation Board (STB) approved the UBR in December 2021, which was followed by two separate lawsuits — one filed by the Center for Biological Diversity (CBD) on behalf of four other conservation groups, and another by Eagle County. They were consolidated in February 2022. On Aug. 18, U.S. Court of Appeals for the District of Columbia Circuit Judge Robert L. Wilkins overturned the STB’s decision, transforming the planned flotilla from a protest to a celebration. Five Colorado counties and five municipalities along the national railway — the proposed route for eastbound Uinta Basin waxy crude — signed on to an amicus brief in support of Eagle County in October, making the Aug. 18 decision a victory across the state.

Ted Zukoski, CBD attorney, told Aspen Journalism that the STB and the U.S. Fish and Wildlife Service (FWS), whose flawed biological opinion (BiOp) informed the STB’s decision, must go back to the drawing board. “The existing approvals from the STB and FWS are null and void,” he said. “The UBR has been knocked back a number of steps.” 

A CBD news release summarized Wilkins’ ruling by stating that the STB “violated the National Environmental Policy Act [NEPA] by failing to fully analyze the railway’s potential harm to the climate, wildlife, the Colorado River and people, including environmental justice communities along the Gulf Coast.” Key findings show a mixed bag of what counted as a violation and what did not. 

According to the ruling, NEPA violations include ignoring the risk to endangered fish in the Colorado River and failure to take a hard look at upstream and downstream impacts of oil production, accident data and downline wildfire risk. The court’s discussion of the UBR’s impacts from production in the Uinta Basin and the downstream impacts on communities near refineries continues a line of precedent and keeps federal agencies accountable, said Zukoski. 

“When federal agencies are the on/off switches for climate impacts, air pollution impacts, surface impacts of wildlife habitat, they can’t say, as the [STB] did here, ‘Oh, no, not our problem. We don’t control who develops oil in the Uinta Basin. We don’t know where the oil is going. We’re just approving the railway,’” he said. “The court saw through that.” 

In the December 2021 decision, STB Chair Martin Oberman cast the sole dissenting vote, stating that “the environmental impacts outweigh the transportation merits.” Oberman’s opinion questioned his colleagues’ evaluation of the downstream impacts of the UBR and the overall contribution to climate change. He also cited the financial viability of the project given volatile oil prices and the shifting fossil fuel industry. 

Wilkins found that the STB violated its own rail policies by looking at the UBR’s economic benefits while ignoring the full significance of the UBR’s environmental costs. He did not uphold plaintiffs’ claims about failure to address landslide risks, violation of the National Historic Preservation Act, downline impacts on biological resources, land use and recreation, or increased noise and potential impacts to the Tennessee Pass rail line.

A raft of activists protesting the Uinta Basin Railway, captained by Christina Rivera, floats the Colorado River under the Grand Avenue Bridge in Glenwood Springs as part of a flotilla protesting the Uinta Basin Railway on Aug. 26. CREDIT: AMY HADDEN MARSH/ASPEN JOURNALISM

Glenwood Springs pleased with outcome

Glenwood Springs City Attorney Karl Hanlon, who worked on the amicus brief in support of Eagle County, told Aspen Journalism that the circuit court opinion was a “huge, huge win,” particularly for the process. “There were things that [the court] did accept and things that they didn’t,” he said. “But at the core of it, NEPA requires a more detailed analysis than [the STB] did. You can’t just sort of gloss over it and rubber-stamp a NEPA process.” 

Hanlon said the money and time that Glenwood Springs and other towns spent working on the amicus brief was well spent. “I think [the ruling] lays out three really big areas,” he said. “Quantifying the reasonably foreseeable upstream and downstream impacts from increased drilling in the Uinta Basin on vegetation and special status species, the increased oil train traffic along the UP line, and the issue of environmental justice on the Gulf Coast.” 

According to a 2018 feasibility study conducted as part of the EIS, most of the refineries equipped for Uinta Basin waxy crude are in MIssissippi and Louisiana, including Marathon Petroleum in Garyville, Louisiana. On Aug. 25, a massive fire at that refinery, caused by a leaky naphtha tank, produced a plume of black smoke and forced nearby evacuations. “This is the kind of harm the Uinta Basin Railway will worsen by pouring billions of gallons of crude per year into Gulf Coast refineries,” said Zukoski. “And the kind of harm that the D.C. Circuit Court of Appeals explicitly held that the [STB’s] EIS failed to take a hard look at.”

Hanlon is satisfied with the ruling and how comprehensive it was. He said it’s a win for those who work on conservation and environmental issues. “I think it affirms the rules that we all thought we were operating under, right? That these agencies have to take these analyses seriously,” he said.

Godes added that he’s proud of the stance that many Colorado communities have taken. “We are in a really good space with a recent victory,” he said at the rally. “We have a lot of support. This flotilla is proof of that. All of the neighboring communities and jurisdictions, save for Garfield County, have come out against this.”

Boaters approach the Grand Avenue Bridge in Glenwood Springs as part of a flotilla protesting the Uinta Basin Railway on Aug. 26. The event turned celebratory after an Aug. 18 ruling from the U.S. Court of Appeals, District of Columbia Circuit that overturned the Federal Surface Transportation Board’s 2021 approval of the project. CREDIT: AMY HADDEN MARSH/ASPEN JOURNALISM

What’s next?

Aspen Journalism reached out to the Seven County Infrastructure Coalition, the quasigovernmental engine behind the UBR, for comment on the ruling. In an official email statement, Melissa Cano, strategic communications coordinator for Jones and DeMille Engineering, said the UBR team is not giving up.

“While we disagree with the D.C. Circuit Court’s recent decision, we respect the authority of the U.S. Court of Appeals,” the statement said. “We firmly believe that the railway’s environmental impact statement (EIS) contains appropriate and thorough analysis of the highlighted concerns, as it stands today. Nonetheless, we are ready, willing and capable of working with the U.S. Surface Transportation Board to ensure additional reviews and the project’s next steps proceed without further delay. We look forward to bringing this railway to the basin in a safe and cost-effective way to enable economic stability, sustainable communities and an enriched quality of life to Utahns and beyond.” 

Zukoski said there are strategies the SCIC could use as result of the Wilkins ruling, including an appeal to the U.S. Supreme Court. “But they are better off just saying, ‘Well, now we have a roadmap from the courts on what we need to fix. Let’s go fix it.” He added that the “fix” would be, more or less, a do-over. “They’re going to need approval from the STB again,” he said.”They’re going to need to go through a supplemental environmental impact statement process and get a new biological opinion from the FWS that looks at the spill risk to endangered fish.”

Hanging in the balance are the September 2022 lawsuit against the U.S. Forest Service (USFS) decision to allow construction of the UBR through an inventoried roadless area (IRA); the expansion of the Wildcat Loadout Facility near Price, which would allow an increase in production, storage and transport of Uinta Basin crude regardless of the success or failure of the UBR; and the use of Private Activity Bonds (PAB) issued through U.S. Department of Transportation to fund the UBR. The City of Glenwood Springs wrote a letter to U.S. Transporation Secretary Pete Buttigeig in early August against the use of PAB bonds and requesting a meeting this month. “It would be incredibly precedent-setting if we ever started allowing our tax dollars to be utilized by a private corporation for their profit and their shareholders,” Godes said at the rally. “It doesn’t benefit Colorado and it doesn’t benefit this country.”

The Wildcat Loadout Facility, near Price, Utah, stores and transports Uinta Basin crude. CREDIT: COURTESY PHOTO BY JOHN WEISHEIT

USFS suit undecided

The USFS approved construction of the UBR in July 2022 through 12 miles of an IRA in Utah’s Ashley National Forest. Prior to the approval, CBD and other conservation groups sent a letter to USFS Chief Randy Moore, urging him to reject the Ashley National Forest’s application. But Moore refused, stating, “By definition, a railway does not constitute a road under the Roadless Rule.”

In September 2022, CBD, Living Rivers, Sierra Club and Utah Physicians for a Healthy Environment filed suit in D.C. Circuit Court of Appeals. Zukoski told Aspen Journalism at the time that the argument goes beyond whether a railroad is a road. “We raised many issues, including a failure of the Forest Service to consider the impact on roadless values,” he said. That case has not been briefed. 

Legal documents show that the court on April 24 granted an abeyance request by the USFS, the Seven County Infrastructure Coalition and the Uinta Basin Railway, temporarily suspending court proceedings until the Eagle County suit was decided. The original request shows that the USFS Record of Decision used portions of the same EIS and FWS BiOp that were used in the STB approval and that a decision in favor of Eagle County could make moot the USFS case.

On Aug. 18, the court requested that all parties involved in the suit file motions to govern future proceedings by Sept. 18. “The order suggests that the parties come up with a plan, or competing plans, for resolving the case in light of the decision in the Eagle County case,” said Zukoski. “So, it’s up to the parties to address that decision and seek further relief on the USFS decision. We’ll have to do that by Sept. 18.” 

 The outcome could also be compromised by the fact that federal approval no longer exists and that construction of the UBR cannot begin until all approvals are finalized. “One potential path forward is that the USFS voluntarily takes some action, such as withdrawing the ROD, and then one or more of the parties files a motion to dismiss the case,” said Zukoski. “Another potential outcome is the USFS believes that it can continue to litigate the case on the merits and we proceed to briefing.”

the location of the Wildcat Loadout Facility near Price, Utah is shown on this map. CREDIT: FROM GOOGLE MAPS

Wildcat workaround  

Meanwhile, Uinta Basin oil producers are upping their game. Utah’s output of crude oil has more than doubled in the past four years. Most of the state’s crude comes from Carbon, Daggett, Duchesne, Rich, Summit and Uintah counties — all within the Uinta Basin. Utah state Division of Natural Resources statistics show that Uinta Basin oil production has increased from a total of 31 million barrels per year in 2020 to 45.3 million in 2022. In the first five months of 2023, nearly 20.1 million barrels have come out of the ground. 

Several loadout facilities currently transfer Uinta Basin oil from trucks to rail cars bound for California and the Gulf Coast. More and more tanker trucks are carrying crude over winding, two-lane highways from Myton to loadout facilities near Price, Helper, Ogden and Salt Lake City. Wildcat is one such facility near Price. 

The Bureau of Land Management is considering a request from Coal Energy Group 2 to expand the capacity of the existing Wildcat Loadout Facility (WLF) to 100,000 bpd from 30,000 bpd. The project would add tank farm facilities, loading and unloading and other operations on about 13 acres of the existing right of way. 

Zukoski said there are two theories about Wildcat. “One is that it’s a workaround. It’s a way to take advantage of high oil prices now,” he said. “The other is that it’s basically a proof-of-concept exercise.” The SCIC needs to show investors that there is a market for Uinta Basin crude. Mark Hemphill, who is with Rio Grande Pacific, in 2019 told the Utah Division of Oil, Gas and Mining that a minimum of 130,000 bpd would need to come out of the basin to support the UBR. But without the UBR, the increase in production has been impossible due to caps on Salt Lake City refineries and no way to transport that much crude to other refineries. Wildcat could be a way out of the financial catch-22 that has been dogging the UBR. “If industry can show a significant boost in Uinta Basin oil production and proof that refineries will take that crude, they can take it to investors,” said Zukosky. “They’re in it to make money. That’s what this whole thing is about, and they’re just trying to figure out how to do it.”

The BLM needs to decide what kind of National Environmental Protection Act (NEPA) analysis is best for the WLF expansion. ”Actions are analyzed in an EA [environmental assessment] if they are not categorically excluded, not covered in an existing environmental document, and not normally subject to an EIS,” Angela Hawkins, public affairs officer for Utah BLM, said in an email. “The EA is used to determine if the action would have significant impacts. If that is the case, then BLM would need to prepare an EIS.” 

Glenwood Springs, Eagle County and conservation groups, including CBD, would prefer an EIS. Over the summer, they informed the BLM of their concerns in separate letters. CBD public lands senior campaigner Deeda Seed said in the conservation groups’ letter that the ruling in the Eagle County case “demonstrates that BLM has a duty to disclose all of the environmental harms the Wildcat Loadout Project would cause, and makes clear that BLM must weigh those harms in evaluating whether the project is in the public interest.” Zukosky told Aspen Journalism that WLF’s maximum capacity would be less than one-third of the UBR’s top capacity of 350,000 bpd. “So, presumably the upstream and downstream impacts would be reduced,” he said. ”But since they didn’t look at those [in the EIS or FWS BiOp), they have to go look at them for this project.”

Colorado state Sen. Lisa Cutter spoke out against the Uinta Basin Railway at a rally at Two Rivers Park in Glenwood Springs on Aug. 26. Cutter represents SD-20, which is in Jefferson County and includes parts of Arvada and Lakewood. CREDIT: AMY HADDEN MARSH/ASPEN JOURNALISM

Meanwhile, Colorado state Sen. Lisa Cutter (D-Senate District 20) told Aspen Journalism at the Aug. 26 rally that the state legislature has begun to take a look at rail-transport issues. She’s on the Interim Transportation Legislative Review Committee that has been meeting over the summer. One of the ideas they talked about was enhanced rail safety. But this, too, is in its initial phase.

“It’s not drafted yet, but we’re looking at several provisions,” she said. “Maybe training people along the route, training first responders, maybe having more people on board, more hazardous material specialists on board.” She figures if toxic materials are going to be transported by rail through the state, safeguards must be in place. “We’re not threatening Colorado, our forests, our water, our recreation, our hearts,” said Cutter, whose district includes Jefferson County and parts of Arvada and Lakewood. “I mean, this is the most important thing to me — the mountains, the forests and the way we live here in Colorado.”

Cutter is not sure why Colorado Gov. Jared Polis remains silent on the issue. Asked what she had to say to him about it, she replied that she knows he cares about the Colorado way of life. “Please lend your voice should the opportunity become available,” she said. Aspen Journalism has not yet received a statement from the governor’s office.

For now, citizens from Grand County to Glenwood Springs are celebrating the recent, hard-won success. But Godes urged Polis, a Democrat, and U.S. Rep. Lauren Boebert, a Republican who represents many of the communities that would be impacted by increased crude oil transport out of the Uinta Basin, to clarify their positions on the issue. Godes wonders if Boebert’s silence on the issue is a tacit objection to the UBR. “Congresswoman Boebert is not against it,” he said. “But she has not come out in support of this and that’s a victory.”

Sackett v. EPA: How the Supreme Court Decimated the Clean Water Act — Getches-Wilkinson Center #WOTUS

Credit: Earth Justice

Click the link to read the article on the Getches-Wilkinson Center website (Andrew Teegarden):

August 22, 2023

After reading, rereading, and rereading again, I can’t help but conclude that the Supreme Court’s decision in Sackett v. EPA makes no sense. The case presented the decades-old question of which waters, and by extension, the wetlands adjacent to those waters, are considered “waters of the United States” (WOTUS) and therefore subject to federal regulation under the Clean Water Act (CWA). Section 404 of the CWA requires operators to obtain a permit from the Army Corps of Engineers (Corps) before beginning dredge and fill operations on WOTUS. But the confusion surrounding the meaning of WOTUS, most of it caused by the Supreme Court itself, puts anyone potentially subject to regulation under the CWA in a difficult spot. If they fail to get a permit when one is needed, they could be subject to fines and ordered to restore any land or water they disturbed. The Corps has also been placed in the untenable position of not being able to ascertain what lands and waters are deemed WOTUS.

The Supreme Court has now issued four decisions addressing WOTUS. With each decision they seem to show greater hostility towards the law, even as they fail to offer clear guidance to the public and the agency about what activities, lands, and waters are subject to regulation.

Riverside Bayview Homes was the first of these, issued in 1985. It was a unanimous decision upholding the Corps’ authority to regulate the proposed filling of wetlands adjacent to a navigable stream. Although Riverside was arguably an easy case, the Court signaled its intention to support a broad reading of the WOTUS, consistent with Congress’ declaration in the conference report to the CWA that they intended “the broadest possible constitutional interpretation” of federal jurisdiction.

But in its subsequent 5-4 decision in SWANCC, which came down in 2001, Justice Rehnquist, speaking for the Court, narrowly construed the CWA because it believed that a broad reading might violate the commerce clause of the constitution. Specifically, the Corps struck down the “migratory bird rule,” whereby waters used by migratory birds were deemed WOTUS. Oddly, the Court failed to even assess the scope of the CWA against the commerce clause or other constitutional authorities like the treaty clause. Had it done so, it surely would have found grounds to uphold the statute under the constitution.

The SWANCC decision forced the Corps to develop a process whereby a party could seek a “jurisdictional determination” from the Corps. This added another bureaucratic layer to the policy of protecting our nation’s waters and forced the Corps to back-off from claiming jurisdiction where the administrative cost of doing so was simply too high.

Five years later, in 2006, a divided Court once again narrowly construed the CWA in Rapanos. Justice Scalia’s plurality opinion for four members of the Court held that only those wetlands with a continuous surface connection to a traditional navigable water would be deemed WOTUS. In a concurring opinion, Justice Kennedy held that wetlands should be deemed WOTUS if they have a “significant nexus” with traditionally navigable waters. Kennedy based his opinion in part on the CWA’s main purpose of restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters. But like Scalia, and Rehnquist before him in SWANCC, he ignored Congress’ admonition that it intended WOTUS to have the “broadest possible constitutional interpretation.”

SWANCC resulted in confusion across the country for the interested public, regulated parties, administrative agencies, and the courts. EPA and the Army Corps of Engineers took the position that Justice Kennedy’s “significant nexus” test would control the issue moving forward, but the application of that new rule, forced upon federal and state agencies by the Supreme Court, would prove to be a costly and uncertain process.

That tortured history set the stage for the Supreme Court’s most recent opinion in Sackett, in which the Court compounds these mistakes by ignoring the science and prior precedent by further narrowing the CWA’s reach by defining “adjacent” to mean “adjoining.” Even using a plain meaning of the word, adjacent realistically includes wetlands that are ‘next to’ or ‘beside’ a navigable water. However, relying on Justice Scalia’s decision in Rapanos, the Court held that WOTUS covers only those relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to a traditional navigable water body. According to the Court, the surface connection must be so extensive that it is difficult to determine where the water ends, and the wetland begins.An even larger problem with the majority approach is their use of section 404(g)’s parenthetical reference to ‘adjacent wetlands’ as the justification for limiting the jurisdictional reach of the CWA. According to the Court, “because section 404(g) includes adjacent wetlands within WOTUS, these wetlands must qualify as WOTUS in their own right, i.e., be indistinguishably part of a body of water that itself constitutes waters under the CWA.”

Ephemeral streams are streams that do not always flow. They are above the groundwater reservoir and appear after precipitation in the area. Via Socratic.org

Limiting the Corps jurisdiction to only those wetlands with a continuous surface connection will result in catastrophic damage to our nation’s waters because many ecologically important areas will not be protected by the CWA. The ruling goes even farther than the Trump-era Navigable Water Protection Rule which removed protections from 51% of wetlands nationwide.

In a few weeks, the EPA and the Corps will release a proposed rule to clarify the meaning of WOTUS and issue guidance to States and Tribes looking to assume their own 404(g) permitting and compliance program. Given that EPA plans on issuing a new operational definition of WOTUS without public comment, we encourage all partners to read the pre-publication version of the § 404(g) rule which solicits comments on each area of the program, particularly funding, operations, and judicial review of final determinations. The Getches-Wilkinson Center plans to submit a comment to the EPA on this proposal. If you have any comments or concerns that you believe we should address in our comment, please feel free to reach out to me via email to andrew.teegarden@colorado.edu.

Download the document here.

Justice Scalia’s opinion in the Rapanos case, and now Alito’s in the Sackett decision, would remove most or all intermittent or ephemeral streams from Clean Water Act protections. That would leave 94% of Arizona’s streams more vulnerable to development. Source: U.S. EPA.

Federal court vacates approval of #Utah oil-train project opposed by #Colorado local governments: Court of Appeals finds ‘numerous NEPA violations’ in analysis of Uinta Basin Railway risks — Colorado Newsline #ActOnClimate #KeepItInTheGround #ColoradoRiver #COriver

A Union Pacific train travels along the Colorado River near Cameo on May 16, 2023. (Chase Woodruff/Colorado Newsline)

Click the link to read the article on the Colorado Newsline website (Chase Woodruff):

A federal court on Friday [August 18, 2023] sent regulators back to the drawing board on their approval of a new short-line railroad in the oil fields of eastern Utah, finding major flaws in how the federal Surface Transportation Board analyzed the risks of increased oil-train traffic through western and central Colorado.

The ruling from the U.S. Court of Appeals for the D.C. Circuit is a victory for Colorado local governments and environmental groups who oppose the construction of the Uinta Basin Railway, an 88-mile rail extension that would allow drillers in Utah to ship large volumes of crude oil to Gulf Coast refineries. An estimated 90% of the resulting traffic — as many as five fully loaded, two-mile-long trains of oil tankers per day — would be routed through Colorado.

The ruling, issued by Judge Robert Wilkins, grants in part a petition filed by Eagle County against the STB’s approval of the railway’s construction, and the environmental impact statement supporting the approval. Eagle County was joined by five environmental groups in suing to block the project, which is backed by a public-private partnership between Utah county governments and industry.

“The deficiencies here are significant,” the Court of Appeals ruling states. “We have found numerous (National Environmental Policy Act) violations arising from the EIS, including the failures to: (1) quantify reasonably foreseeable upstream and downstream impacts on vegetation and special-status species of increased drilling in the Uinta Basin and increased oil-train traffic along the Union Pacific Line, as well as the effects of oil refining on environmental justice communities the Gulf Coast; (2) take a hard look at wildfire risk as well as impacts on water resources downline; and (3) explain the lack of available information on local accident risk.”

In a joint statement, Democratic U.S. Sen. Michael Bennet and Rep. Joe Neguse, who have urged multiple federal agencies to put a stop to the railway project, called Friday’s ruling “excellent news.”

“The approval process for the Uinta Basin Railway Project has been gravely insufficient, and did not properly account for the project’s full risks to Colorado’s communities, water, and environment,” said Bennet and Neguse. “We’re grateful for the leadership of Eagle County and the many organizations and local officials around Colorado who made their voices heard.”

The court’s ruling vacates key sections in the EIS conducted by the STB prior to its 4-1 vote in December 2021 to approve the railway, as well as a so-called biological opinion prepared with the help of the U.S. Fish and Wildlife Service to evaluate “downline” risks to endangered species and critical habitats along the Colorado River. It also faults the STB for failing to scrutinize what critics have alleged is the Uinta Basin Railway project’s shaky financing.

“The Board failed to weigh the Project’s uncertain financial viability and the full potential for environmental harm against the transportation benefits it identified,” the ruling concludes.

The ruling remands the project’s application for approval back to the STB “for further proceedings in accordance with this opinion.”

The Price River near Kyune, Utah, where the proposed Uinta Basin Railway would meet the existing Union Pacific line, is pictured from an Amtrak passenger train on June 5, 2023. (Chase Woodruff/Colorado Newsline)

Campaign against more #Colorado mountain freight trains advances in litigation and letters: #ClimateChange, other environmental risks spur opposition to proposed Uinta Basin Railway — Colorado Newsline #ActOnClimate #ColoradoRiver #COriver

Anglers fish on the Colorado River near an idle Union Pacific freight train in western Grand County on June 12, 2023. (Chase Woodruff/Colorado Newsline)

Click the link to read the article on the Colorado Newsline website (Chase Woodruff):

Elected officials in Glenwood Springs are quite certain of two realities facing the largest town between the Denver metro area and Grand Junction on Union Pacific’s Central Corridor rail line: Freight rail, especially for fossil fuels, is king. And climate change is an everyday reality.

“Glenwood Springs is the poster child for climate change,” said former Glenwood mayor and current City Council member Jonathan Godes, an outspoken opponent of the proposed Uinta Basin Railway oil-train project in Utah. “Something that contributes 53 million metric tons of carbon a year … is absolutely something that our community and every other mountain community in Colorado that relies on it not being 100 degrees every day in the summer or 50 degrees in the winter should be fighting on its face.”

But the fact that the new 88-mile railroad in northeast Utah would send up to five fully loaded, two-mile-long oil trains a day through Glenwood and Denver on their way to Gulf Coast refineries has prompted the Colorado River city of 10,300 in Garfield County to support Eagle County’s litigation opposing federal approval of the project, and, more recently, to fire off letters to federal officials opposing tax-exempt funding for the railway and a Utah loading facility expansion.

On Aug. 3, Glenwood Mayor Ingrid Wussow wrote U.S. Transportation Secretary Pete Buttigieg urging him to “deny issuing funding through tax-exempt Private Activity Bonds (PABs) to the Uinta Basin Railway Project. The approval of and funding for the Railway carries grave implications for both the environmental health and economic stability of Glenwood Springs and other communities along the Railway’s corridor.”

Wussow added she’ll be in Washington, D.C., Sept. 18 to 20, with a delegation from the city and requested a meeting with Buttigieg to discuss the oil train project, which would travel along the climate-change endangered Colorado River for approximately 100 miles. In a separate letter dated Aug. 7, Wussow wrote Greg Sheehan, Utah state director of the U.S. Bureau of Land Management to request a full environmental impact statement for an oil truck and rail loading facility on BLM land in Utah rather than a less-intensive environmental assessment.

“Glenwood Springs is a world destination for outdoor recreation and the home for irreplaceable natural wonders,” Wussow wrote. “Given the magnitude of the Railway project, these risks to the natural environment are significant.”

Godes can doom scroll through a long list of climate calamities in Glenwood Springs he says are directly attributable to the burning of fossil fuels, rising temperatures and increased aridification of Colorado. He points to the Storm King Fire in 1994 that killed 14 wildland firefighters, the Coal Seam Fire in 2002 that burned down 29 Glenwood structures, and the Grizzly Creek Fire in 2020 that scoured Glenwood Canyon and shut down Interstate 70 for two weeks. The following summer, a 500-year rain event hit the burn scar and dumped mud and rock on the highway and train tracks below, shutting down I-70 for another two weeks.

“So climate change, it’s not just, ‘It’s hot in America right now,’” Godes said. “Climate change is something that threatens us in Glenwood Springs on a year-in and year-out basis. It’s ever-present. It is where our insurance rates are determined. It is where we allow houses to be built. It is where streets are contemplated for escape routes.”

One might think the environmental benefits of trains — up to 75% lower greenhouse gas emissions than moving freight by truck, according to the rail industry — would ease some of Glenwood’s concerns, but Godes argues that depends on the freight. The Uinta Basin oil should stay in the ground to begin with, he argues, while also scoffing at the notion of enhanced passenger trains as a potential tourism-boon side effect of increased rail traffic overall. [ed. emphasis mine]

“My mom comes from Iowa every year on the California’s Zephyr,” Godes said of the daily Amtrak service through Glenwood to Chicago and San Francisco. “She gets on near Burlington, Iowa, and then she comes out here, and it’s always four or five hours late. And most of the time it’s because somewhere in Colorado, and most likely between Denver and here, there was a train with a higher priority, whether it was oil or coal or other materials or commodities.”

While there are specialty tourist trains such as the Denver-to-Moab, Utah, Rocky Mountaineer and the seasonal Denver-to-Winter Park Express ski train — a partnership with federally run Amtrak — talk of a daily Colorado Zephyr from Denver to Grand Junction and back has largely remained just talk. And the broader push for intercity Amtrak expansion under President “Amtrak Joe” Biden is focused on Front Range Passenger Rail.

In 2020, a billionaire New York real estate tycoon and owner of vast swaths of agricultural land in southeastern Colorado promised Pueblo-to-Minturn daily passenger service in his plan to revive the long-dormant Tennessee Pass rail line that connects to the Central Corridor at Dotsero, but he’s since pulled the plug on that concept.

“I’d love to have some kind of passenger rail like the California Zephyr be able to service the tourism industry to get tourists from the Front Range to Vail, from Pueblo, Colorado Springs, over Tennessee Pass,” Godes said. “That’s all fine and dandy. It’s a really nice, fun idea that could be helpful to our tourist economy. But if it comes with the risk of opening the door, even a crack, to regular freight rail on the Tennessee line, I think that is going to be incredibly — and it doesn’t affect me because we get that freight rail through Glenwood no matter what — but I think that is incredibly problematic for Eagle County, Chaffee County, for all the communities on that line.”

Fears about derailments

Eagle County Commissioner Kathy Chandler-Henry, whose government is the lead litigant in efforts to block the Uinta Basin project from sending oil trains through a corner of the county, was initially open to passenger rail but very leery of freight returning to the Tennessee Pass tracks along the Eagle River, which bisects the county before flowing into the Colorado River.

“If there’s going to be cargo trains and no passengers, then all we have is the impacts of noise and train crossings to deal with again,” Chandler-Henry said in 2020. “But if we also have people moving on those lines, I think this could be a great benefit to us.” A small segment of Union Pacific’s Tennessee Pass Line is currently leased by the scenic Royal Gorge Route

Beginning in the 1950s, the United States government, at the behest of the auto and aviation industries, prioritized interstate highways and airports over passenger rail, relegating rail to primarily freight lines with little tolerance for passenger service. In 1997, the only other rail line through the Colorado Rockies — the Tennessee Pass Line — was mothballed in favor of the Central Corridor. But it had not seen passengers on its tracks since 1964.

Terry Armistead, the Minturn mayor pro tem and a member of the Minturn Railroad Committee, does not speak for the whole committee or the entire town council, but she does not want to see the revival of either freight or passenger service in the former rail and mining town off the back side of Vail Mountain.

“We’re not Europe. I just was there riding the trains, and it was incredible. But this mountain corridor is really problematic for commuter traffic and any kind of freight traffic,” Armistead said. “I have real fears about derailments, and Minturn is finally recovering from the disaster that was the Eagle Mine, with the river running orange. We can’t afford to do that again.”

Eagle Mine

The Eagle Mine is an EPA Superfund site.

“People have this romantic idea of it, but they don’t really quite understand the logistics of this rail line. I don’t think it will work for commuter traffic,” even for people who live in Leadville and work in Vail, Armistead said. “If you drove the Leadville 100 at 8 a.m. or 5 p.m. back up to Leadville, you’d understand. People aren’t giving up their cars to spend an extra hour on a train every day. I mean, people are not going to do it. They don’t have the time.”

Sal Pace, a former Pueblo County commissioner and state lawmaker who serves on the Front Range Passenger Rail board of directors, said in a previous interview that the primary focus of FRPR is passenger rail along the Front Range between Pueblo and Fort Collins, where more than 80% of the state’s population is located.

But Pace acknowledges his group has been, to a much lesser degree, exploring connectivity to the west, including the passenger trains already using Union Pacific’s Central Corridor through the Moffat Tunnel, but also by connecting to Amtrak’s Southwest Chief, which cuts through southeast Colorado on its route between Chicago and Los Angeles.

“We’re also going to explore other potential opportunities,” Pace said of currently active segments of the Tennessee Pass Line. “There’s already potential for connectivity from Pueblo to the Royal Gorge Route and it’s not out of the question that individuals could purchase a train ticket from Denver to the Royal Gorge after we build out Front Range Passenger Rail, where in Pueblo they’d change trains. The infrastructure is there, and it’s something that needs to be examined and explored.”

The Colorado Department of Transportation has identified the Tennessee Pass Line as a priority alternative to the Central Corridor line and in the past suggested the state should attempt to purchase the dormant line if it ever becomes available.

But until passenger service becomes the top-line priority over freight on Colorado’s historic rail lines, fears of frequent derailments and toxic spills in headwater rivers will color perceptions in the state’s mountain towns, especially as federal rail safety legislation languishes amid relentless lobbying by the freight-rail industry.

Oil-train opponents look to railroad’s expiring Moffat Tunnel lease for bargaining power — #Colorado Newsline #ColoradoRiver #COriver #SouthPlatteRiver #aridification #ActOnClimate

The East Portal of the Moffat Tunnel near Tolland is pictured on June 26, 2023. (Chase Woodruff/Colorado Newsline)

Click the link to read the article on the Colorado Newsline website (David O. Williams):

Uinta Basin rail project in Utah could result in dramatic increase of hazardous material on Union Pacific line through Colorado

State officials since last spring have quietly been reaching out to communities along Colorado’s main east-west rail line to gauge local sentiment as the state negotiates a new lease with rail giant Union Pacific, which pays $12,000 a year to send trains through the state-owned Moffat Tunnel.

Union Pacific’s 99-year lease to use the 6.2-mile Moffat Tunnel expires Jan. 6, 2025, and Kate McIntire, a regional manager for the Colorado Department of Local Affairs, has been tasked with “developing our list of concerns, potential opportunities, roles, responsibilities, and ways stakeholders would like to ensure they’re involved in the negotiation.”

McIntire, in conjunction with the Colorado Department of Transportation and the recently formed Public-Private Partnership (P3) Collaboration Unit of the Department of Personnel and Administration, will be ramping up outreach this fall and through 2024.

McIntire expects to hear more input from counties and towns along Union Pacific’s Central Corridor rail line between Denver and Grand Junction about the controversial 88-mile Uinta Basin Railway proposal in Utah. The project would send up to 350,000 additional barrels of oil per day along the route, which travels for about 100 miles along the headwaters of the endangered Colorado River.

“Yes, some of those comments came up and were addressed more directly to Union Pacific,” McIntire said of meetings the state has already held with Denver Water, which uses the Moffat Tunnel’s original 1922 bore hole for transmountain water diversions; Adams, Gilpin, Grand and Jefferson counties; and the cities of Arvada, Golden, Winter Park, Fraser and Kremmling.

Asked to characterize some of the comments she’s hearing on an oil train project that’s already been approved by the U.S. Surface Transportation Board and on the high end would more than quintuple the amount of freight rail traffic on Colorado’s Western Slope, McIntire offered this:

“I’ll just kind of draw back on the fact that we’re really early in a complex process with legal considerations, roles, responsibilities, and potential opportunities that may or may not be tied to the lease,” McIntire said. “But we’re definitely aware of those concerns, and we’ll continue to do everything we can to ensure stakeholders are engaged.”

The city of Denver estimates the Uinta Basin project will quadruple the amount of hazardous materials transported by rail through the metro area as up to five two-mile-long oil trains a day chug east through the Moffat Tunnel at the base of the city-owned Winter Park Resort ski area and then make their way down through Denver and toward Gulf Coast refineries.

Eagle County, where the Central Corridor rail line separates from Interstate 70 at Dotsero and follows the Colorado River through remote canyons northeast into Grand County, is suing the Surface Transportation Board to overturn or at least more comprehensively consider the down-the-line impacts of Uinta Basin trains from inevitable derailments, spills, wildfires and climate change.

Environmental groups have also filed suit, and Eagle County has the support of Glenwood Springs, Minturn, Avon, Red Cliff, Vail, Routt, Boulder, Chaffee, Lake and Pitkin counties.

Freight trains sit idle in rail yards in Grand Junction on May 16, 2023. (Chase Woodruff/Colorado Newsline)

Seeking more state support

“Still conspicuously absent in these efforts is the state of Colorado,” Eagle County Attorney Bryan Treu wrote in an email. “Anything the state can do to get off the sidelines and participate would be appreciated. We would encourage the state to use all tools at its disposal, including any Moffat Tunnel lease negotiations, to protect every Colorado community along the rail corridor that will be forced to face very real risks of derailment, spills, water contamination and fires.”

Asked to characterize the comments the Nebraska-based railroad company is hearing on the Uinta Basin Railway and whether it’s appropriate for Colorado to consider opposition to the Utah project in its Moffat Tunnel lease negotiation, Union Pacific spokesperson Robynn Tysver responded: “Union Pacific is aware the Moffat Tunnel lease expires in 2025, and negotiations are underway,” Tysver wrote in an email. “Union Pacific is required by federal law to transport hazardous commodities that Americans use daily, including crude oil, fertilizer and chlorine, and 99.9% of the hazardous material shipped by rail reaches its destination safely.”

Union Pacific chief safety officer Rod Doerr on Monday told the Colorado General Assembly’s Transportation Legislation Review Committee the company hasn’t specifically analyzed the risks of increased oil-train traffic from the proposed Uinta Basin Railway project. The committee will meet again in August to consider potential legislation in the next session that starts in January.

Since the General Assembly first created the Moffat Tunnel Improvement District for taxing purposes in 1922 and still owns the tunnel and administers it via DOLA, the terms of the lease might logically be a topic of discussion.

“It’s crazy that Union Pacific pays Colorado far less rent for the Moffat Tunnel than the median price of a studio apartment in Denver,” said Ted Zukoski, attorney with the Center for Biological Diversity, which is suing to stop the oil trains. “This is a once-in-a-lifetime opportunity for (Gov. Jared Polis) to protect Colorado communities, our water, our rivers, and our public lands from hazardous materials spills from trains that travel through the Moffat Tunnel.”

Eagle County’s Treu, who said he’s yet to hear from the state on the Moffat lease, would like to see a lot more pushback from the state against federal approvals for the Utah oil-train partnership backing the project, which is still seeking funding via tax-exempt U.S. Department of Transportation bonds.

“We asked the (Colorado Attorney General’s) office to participate as an amicus party in our litigation against the Surface Transportation Board,” Treu said. “The state declined, leaving us to fend for ourselves. That response was surprising considering the crux of this litigation is STB’s complete failure to consider the downline impacts to the sensitive Colorado River corridor through all of Colorado. This isn’t just an Eagle County issue.”

The office of Colorado Attorney General Phil Weiser responded with the following statement: 

“As the Attorney General said in his letter to the federal government, the Uinta Basin Railway proposal is as risky to our environment and communities as it is unsupported by Coloradans. It should not move forward. And it most definitely should not receive federal subsidies. The Attorney General’s Office has visited with advocates on the risks the UBR poses to our state, has collaborated with Colorado’s congressional delegation on options to prevent construction, and is committed to visiting with any group with ideas on how to protect Colorado’s environment from this risky venture.”

From left, Glenwood Springs Mayor Jonathan Godes, state Sen. Dylan Roberts, U.S. Rep. Joe Neguse, U.S. Sen. Michael Bennet and Colorado House Speaker Julie McCluskie participate in a press conference near Interstate 70 at the confluence of Grizzly Creek and the Colorado River to voice opposition to the Uinta Basin Railway project, April 7, 2023. (Chase Woodruff/Colorado Newsline)

In various forms, both Colorado U.S. senators — Democrats Michael Bennet and John Hickenlooper — and a majority of the state’s U.S. House delegation, particularly Democratic Rep. Joe Neguse, have reached out to a variety of federal agencies to oppose the Uinta Basin Railway.

Jonathan Godes, a Glenwood Springs City Council member and former mayor whose term ended in April, said he has yet to be contacted by DOLA on the Moffat Tunnel lease, but he looks forward to hearing from McIntire, who is a former Grand County manager and former acting Jefferson County manager.

Godes says he doesn’t yet have enough information to comment on the Moffat Tunnel lease negotiations or possibly using them to restrict hazardous material transport through Glenwood.

“But I will say that I’m really glad that both of our senators, Congressman Neguse, commissioners in Eagle County, Grand County, and leaders in dozens of municipalities all agree that this is objectively and definitively a horrible idea for our communities, for the Western Slope, the mountain communities in the state of Colorado,” Godes said. “I’m looking forward to when the state decides to join up with our congressional delegation and our local leaders in solidarity against this abomination.”

Tennessee Pass Line

Terry Armistead, a Minturn Town Council member, mayor pro tem, and a member of the Minturn Railroad Committee, made it clear she was not speaking for the whole committee or the entire town council, but she acknowledged she has spoken to McIntire.

“In regards to the Tennessee Pass Line, I heard nothing in that short meeting of any substance, unfortunately. It was kind of anticlimactic,” Armistead said of a long-dormant Union Pacific rail line that connects to the Central Corridor at Dotsero and heads southeast along the Eagle and Arkansas rivers to Pueblo — a route that if revived would avoid the Moffat Tunnel and Denver altogether.

That is one of the fears Eagle County expressed in its litigation — added pressure to restart rail traffic on the Tennessee Pass Line through Avon and the former mining and railroad towns of Minturn and Red Cliff off the backside of Vail Mountain.

Armistead said she started calling Eagle County Commissioner Matt Scherr, who used to be mayor and still lives in Minturn, four years ago when the TPL revival idea first came up, telling him, “Minturn is too small a voice in the room, and we can’t do this alone; the county needs to speak for all of us.” She supports the county’s position regarding the Moffat Tunnel lease and would like to see Union Pacific be allowed to formally abandon the TPL for an outdoor recreation trail.

“I’m not going to mince words. I would love to see (the Tennessee Pass) rail ripped up,” Armistead said of the line that’s been dormant since 1997 — the year after a Union Pacific and Southern Pacific merger. “I would love to see them sell us, or sell somebody the land, and develop the rail yard in Minturn. I’ve been saying it for years.”

DOLA’s McIntire could not say if the status of the Tennessee Pass Line will be at all considered in the Moffat Tunnel lease negotiation, since it’s a separate and active Union Pacific rail line.

“We’re still very early in this process and we really haven’t determined whether that’s a separate issue or not,” McIntire said. “I don’t want to come out and say that that’s not going to be something that we’re going to address.”

For Union Pacific, which did try to formally abandon the TPL in the late 1990s after the merger — only to be snubbed on that front by the U.S. Surface Transportation Board — it’s somewhat of a moot point.

“We have no plans of reopening the Tennessee Pass,” Union Pacific’s Tysver said.

At least 45% of the nation’s tap #water is estimated to have one or more types of the chemicals known as per- and polyfluorinated alkyl substances, or #PFAS, according to a new study by the U.S. Geological Survey

This USGS map shows the number of PFAS detected in tap water samples from select sites across the nation. The findings are based on a USGS study of samples taken between 2016 and 2021 from private and public supplies at 716 locations. The map does not represent the only locations in the U.S. with PFAS. Sources/Usage: Public Domain. Visit Media to see details.

Click the link to read the release on the USGS website:

At least 45% of the nation’s tap water is estimated to have one or more types of the chemicals known as per- and polyfluorinated alkyl substances, or PFAS, according to a new study by the U.S. Geological Survey. There are more than 12,000 types of PFAS, not all of which can be detected with current tests; the USGS study tested for the presence of 32 types. 

Read the study

This USGS research marks the first time anyone has tested for and compared PFAS in tap water from both private and government-regulated public water supplies on a broad scale throughout the country. Those data were used to model and estimate PFAS contamination nationwide. This USGS study can help members of the public to understand their risk of exposure and inform policy and management decisions regarding testing and treatment options for drinking water. 

PFAS are a group of synthetic chemicals used in a wide variety of common applications, from the linings of fast-food boxes and non-stick cookware to fire-fighting foams and other purposes. High concentrations of some PFAS may lead to adverse health risks in people, according to the U.S. Environmental Protection Agency. Research is still ongoing to better understand the potential health effects of PFAS exposure over long periods of time. Because they break down very slowly, PFAS are commonly called “forever chemicals.” Their persistence in the environment and prevalence across the country make them a unique water-quality concern. 

A USGS scientist wearing black gloves is collecting a sample of tap water from the kitchen sink using small plastic vials to test for PFAS. Sources/Usage: Public Domain. Visit Media to see details.

“USGS scientists tested water collected directly from people’s kitchen sinks across the nation, providing the most comprehensive study to date on PFAS in tap water from both private wells and public supplies,” said USGS research hydrologist Kelly Smalling, the study’s lead author. “The study estimates that at least one type of PFAS – of those that were monitored – could be present in nearly half of the tap water in the U.S. Furthermore, PFAS concentrations were similar between public supplies and private wells.”  

The EPA regulates public water supplies, and homeowners are responsible for the maintenance, testing and treatment of private water supplies. Those interested in testing and treating private wells should contact their local and state officials for guidance. Testing is the only way to confirm the presence of these contaminants in wells. For more information about PFAS regulations, visit the EPA’s website on addressing PFAS

The study tested for 32 individual PFAS compounds using a method developed by the USGS National Water Quality Laboratory. The most frequently detected compounds in this study were PFBS, PFHxS and PFOA. The interim health advisories released by the EPA in 2022 for PFOS and PFOA were exceeded in every sample in which they were detected in this study. 

Scientists collected tap water samples from 716 locations representing a range of low, medium and high human-impacted areas. The low category includes protected lands; medium includes residential and rural areas with no known PFAS sources; and high includes urban areas and locations with reported PFAS sources such as industry or waste sites.  

Most of the exposure was observed near urban areas and potential PFAS sources. This included the Great Plains, Great Lakes, Eastern Seaboard, and Central/Southern California regions. The study’s results are in line with previous research concluding that people in urban areas have a higher likelihood of PFAS exposure. USGS scientists estimate that the probability of PFAS not being observed in tap water is about 75% in rural areas and around 25% in urban areas.  

Learn more about USGS research on PFAS by reading the USGS strategy for the study of PFAS and visiting the PFAS Integrated Science Team’s website. The new study builds upon previous research by the USGS and partners regarding human-derived contaminants, including PFAS, in drinking water and PFAS in groundwater

The City: In #Denver, oil trains hit a fork in the road to #Colorado’s transportation future — Colorado Newsline #ActOnClimate #SouthPlatteRiver

A freight train derailed at the Suncor Energy refinery in Commerce City on June 16, 2023. (Chase Woodruff/Colorado Newsline)

Click the link to read the article on the Colorado Newsline website (Chase Woodruff):

City Council kills rail-safety ordinance ahead of Uinta Basin Railway’s potential quadrupling of hazmat traffic

As trains heading east from the Moffat Tunnel take one last sharp turn along a ridge near Eldorado Canyon State Park in Boulder County, the scenery changes abruptly.

After traveling hundreds of miles east through narrow river gorges and rugged alpine forests, the Union Pacific’s Central Corridor through Colorado emerges at last onto a high ridgeline offering dramatic views of the Denver metro area and the vast, empty Eastern Plains stretching out into the distance.

Over the next 10 miles, the railroad drops roughly 1,000 feet in elevation, meaning this section of track approaches a 2% grade, near the practical limit for major freight lines. To accomplish the steep descent, trains complete a looping series of turns at a landmark known as Big Ten Curve, where a line of disused cement-filled rail cars buried to one side of the track serves as a windbreak, placed there in the 1960s after repeated derailments caused by high winds blowing across the foothills.

With one final turn, trains leave the mountains behind for good, passing just south of the site of the former Rocky Flats nuclear weapons plant and bearing down directly into the heart of Colorado’s largest population center.

Within just a few years, this could be the route traveled daily by as many as five fully-loaded, two-mile-long crude oil trains from the Uinta Basin in eastern Utah. The additional traffic from the proposed Uinta Basin Railway, backed by a public-private partnership and granted key approvals by President Joe Biden’s administration, could quadruple the amount of hazardous materials transported by rail through Denver, city officials estimate.

This week, three Denver-area members of Congress — U.S. Reps. Diana DeGette, Jason Crow and Brittany Pettersen, all Democrats — joined a chorus of Colorado elected officials who have come out in opposition to the railway project. Echoing objections made by U.S. Sen. Michael Bennet of Colorado and Rep. Joe Neguse of Lafayette, the lawmakers faulted the federal approval process for neglecting to fully evaluate the impact the railway could have on Colorado.

“We believe transporting crude oil along the Colorado River is a risk we cannot afford to take,” they wrote in a letter to U.S. Transportation Secretary Pete Buttigieg. “Were a train to derail, it would be frontline communities who bear the brunt of the damage, in the air they breathe and the water they drink.”

Buttigieg and the U.S. Department of Transportation could soon face a decision on whether to approve the Uinta Basin Railway’s application for $2 billion in tax-exempt private activity bonds. The Seven County Infrastructure Coalition, the group of Utah county governments that has led the project’s planning and permitting, said earlier this year that it would seek the bonds, which would save the railway tens of millions of dollars annually in financing costs.

Federal regulators estimated in a “downline analysis” that the increased traffic from the Uinta Basin Railway could cause roughly one train accident a year between Kyune, Utah and Denver. Accidents severe enough to cause a spill of up to 30,000 gallons of crude oil, they predicted, would occur roughly once every five years.

With the prospect of the railway’s construction looming, environmental advocates and communities along the downline route fear that those risks could be compounded by inaction at every level of government.

In the wake of a February derailment and chemical fire in East Palestine, Ohio, and other recent train accidents — including a bridge collapse that caused a hazmat spill into the Yellowstone River in Montana last week — a bipartisan group of lawmakers in Washington has taken up rail safety legislation, which is currently pending on the Senate floor. Prospects for the bill’s passage by the Republican-controlled House, however, are uncertain, and sponsors have already pared back some of its key provisions.

In Colorado, Gov. Jared Polis has largely remained on the sidelines of the Uinta Basin Railway issue, though a spokesperson said he opposes the project’s application for the tax-exempt bonds. State agencies like the Colorado Department of Transportation and the Public Utilities Commission have limited authority over the rail industry, though some General Assembly lawmakers want to see the state take a more active role.

The Union Pacific railroad descends into the Denver metro area via the Big Ten Curve near Leyden, where a line of disused, cement-filled rail cars serves as a buffer against high winds. (Chase Woodruff/Colorado Newsline)

And at the local level, rail safety advocates were left bitterly disappointed this week when a majority of Denver City Council members voted to kill a proposed ordinance that would have more strictly regulated land use around freight rail corridors. The measure’s sponsor, longtime City Council Member-at-Large Debbie Ortega, accused outgoing Mayor Michael Hancock’s administration of a “strategic effort to completely undermine” a years-long process to develop the policy.

In the Denver metro area, the railway’s potential risks were underlined by an oil-train derailment earlier this month at the Suncor Energy refinery in Commerce City. A spokesperson for BNSF said that 16 of the 17 derailed tank cars were empty and “no hazardous materials were involved.”

“This is another reminder that derailments are far too common,” Bennet wrote on Twitter. “Had the train cars been full, this would have been a catastrophe. That’s why I’m pushing to stop Uinta (Basin) Railway oil trains from moving through our state.”

A ‘carbon bomb’

In the early summer, the broad, grassy slopes of the foothills beneath Coal Creek Canyon, green and full of blooming wildflowers, appear pristine and unspoiled — but looks can be deceiving.

To the north, the site of the Rocky Flats Plant, which manufactured plutonium pits for nuclear weapons until it was shut down in 1992, has been converted into a wildlife refuge, but longstanding fears about radioactive contamination persist. To the south, a landfill and a natural-gas-fired power plant operate next to residential developments built on the site of the former coal company town of Leyden.

Railroad tycoon David Moffat bought the Leyden Coal Mine in 1902, using it to supply coal both to his Denver, Northwestern & Pacific Railway over the mountains, better known as the Moffat Road, and to the Denver Tramway Company, which he owned jointly with other city grandees. Not unusually for the time, the Leyden mine experienced its share of deadly disasters, and workers there in 1908 likened it to a “penal colony.”

Denver Tramway ended its streetcar service in 1950, replacing its fleet with buses, and the Leyden mine was shuttered a year later. With the rise of the interstate highway system after World War II, “interurban” rail service was quickly disappearing in Colorado and across the country.

“It was a sad occasion to those who preferred the relatively smooth ride in an interurban car to the more confined jerkey ride in a bus with its accompanying exhaust fumes,” lamented the Colorado Transcript when the last passenger car left Golden for Denver on July 2, 1950.

A trolley car on Washington Avenue in Golden in June 1941. The “Interurban” lines operated by the Denver Tramway Company and other railroads fell out of favor in the mid-20th century as suburbs and the interstate highway system were developed. (Denver Public Library Special Collections, X-10126)

“It’s a natural progression that railroads fall out of favor, particularly for passengers,” said Paul Hammond, director of the Colorado Railroad Museum. “And of course, the growth of the interstate highway network creates an avenue for trucks to get around in ways that they had never been able to before.”

The car-centric, oil-dependent consumer economy that fueled U.S. growth in the postwar years had profound consequences, beginning with the supply shocks and geopolitical crises of the 1970s, and continuing in the boom-and-bust disruptions that impacted the Western Slope and Denver’s oil industry in the 1980s. But most profound of all is the impact the country’s dependency on oil has had on the Earth’s climate, with tailpipe emissions from cars, trucks and other forms of transportation now ranked as the leading source of U.S. greenhouse gas emissions.

Updated Colorado River 4-Panel plot thru Water Year 2022 showing reservoirs, flows, temperatures and precipitation. All trends are in the wrong direction. Since original 2017 plot, conditions have deteriorated significantly. Brad Udall via Twitter: https://twitter.com/bradudall/status/1593316262041436160

Climate change has hit particularly hard in the American West, where a relatively wet winter and spring haven’t changed long-term projections for aridification that will continue to stress water supplies and increase wildfire risk in the decades to come.

“We’re seeing with each day the climate emergency unfolding all around us,” said Deeda Seed, senior Utah campaigner for the Center for Biological Diversity, which has sued to block the railway project.

A train of tanker cars travels the tracks along the Colorado River near Cameo on May 16, 2023. (Chase Woodruff/Colorado Newsline)

After a two-year environmental review process, the federal Surface Transportation Board voted 4-1 in December 2021 to approve the Uinta Basin Railway. The lone vote against the project’s approval was the board’s chairman, Martin Oberman, who wrote a blistering dissent faulting the STB’s decision for neglecting to consider “the harm caused to the environment by downstream combustion of increased oil production enabled by the Line’s construction.”

Oberman further called into question what global efforts to transition to clean energy meant for the railway’s financial viability, raising the possibility “that it would be the public — and not private investors — who would bear the cost of constructing an ultimately unprofitable rail project.”

Such concerns have led major players in Utah’s oil industry to attempt a rebrand of their signature product. Compared to other kinds of crude oil, more of the Uinta Basin’s “waxy” crude — named for its high degree of paraffin, or wax — can be used for lubricants and in other industrial applications.

Jim Finley, CEO of Finley Resources, the Uinta Basin’s largest oil producer, estimates that as much as 25% to 30% of its waxy crude can be put to “non-combustible” uses, compared to less than 10% for a typical crude.

“We have taken the word ‘crude oil’ out of our vocabulary,” Finley told board members of the Seven County Infrastructure Coalition in an October 2021 meeting. “We drill for wax, we produce wax, we ship wax on rail, and we support the wax railroad.”

That sales pitch isn’t winning over the railway’s environmentalist critics. The project’s own backers estimated that it could increase total production in the basin by 350,000 barrels of oil per day, an output that could add up to over a billion barrels over the course of a few decades, even if only 70% of its oil is combusted. The result would be a significantly greater emissions impact than even Biden’s approval earlier this year of the Willow Project in Alaska, denounced by critics like former Vice President Al Gore as “recklessly irresponsible” and “a recipe for climate chaos.”

“It’s just enormous,” said Kate Christensen, an activist with Stop the Uinta Basin Railway, a coalition of Utah and Colorado environmental groups. “The amount of oil they’re going to frack out of this basin if they can build this railway will be catastrophic. It’s absolutely a carbon bomb ready to go off.”

Colorado’s railroading future

For a two-mile stretch east of Olde Town Arvada, the Union Pacific’s Central Corridor runs in parallel with light-rail passenger trains on the Regional Transportation District’s G Line, opened in 2019 after years of delays.

The G Line was one of six new passenger lines envisioned by the RTD FasTracks program passed by area voters in 2004, but challenges have mounted for the transit agency in recent years. A persistent operator shortage has lowered service reliability and forestalled expansion plans. Ridership still hasn’t fully rebounded from a pandemic-era collapse, and the expiration of federal aid programs has clouded the agency’s financial future.

Climate activists and supporters of multimodal transportation have called on local and state officials to do more to pull RTD out of its tailspin, and to further expand transit options that reduce car dependency. It’s a vision that, in large part, centers on a modern-day revival of the regional and interurban passenger lines that connected Colorado communities to one another in the late 19th and early 20th centuries.

Plans for intercity passenger rail service throughout the Interstate 25 corridor took a major step forward in 2021, when Colorado lawmakers established the Front Range Passenger Rail District with a mandate to make the long-planned line from Pueblo as far north as Cheyenne, Wyoming, a reality. Other plans for short-line service have been put forward in mountain areas, including even more ambitious proposals like a new train corridor along Interstate 70 west of Denver, studied by the Colorado Department of Transportation in 2014.

An RTD light-rail train travels south along Santa Fe Drive in Denver on June 29, 2023. (Chase Woodruff/Colorado Newsline)

Such plans could come with high price tags. But Hammond notes that no mode of transportation can exist without public subsidies, and how to allocate that funding is a “policy choice.”

“Who makes money off of the interstate highways?” Hammond said. “Airports are put together usually by counties. If the airlines had to finance every airport that they landed at, it would be a very different cost proposition.”

Freight rail, too, has a part to play in a clean-energy future, rail workers and environmental advocates say. So-called intermodal shipping, which involves moving containers of goods on flatbed freight cars over long distances before loading them onto shorter-range trucks, can be a more efficient and climate-friendly form of transport — especially if emerging technologies like battery-powered locomotives continue to mature.

“I don’t know that an electric semi is ever going to be able to haul a heavy load over Vail Pass,” said Carl Smith, the Colorado legislative director for the International Association of Sheet Metal, Air, Rail and Transportation Workers, or SMART. “But I know a freight train full of containers can get it to Grand Junction, can get it to Glenwood Springs, and then that electric truck only has to go 50 miles or less, with a much smaller load.”

But if new investments in intermodal shipping and revived passenger service make up one possible future for Colorado’s aging rail infrastructure and its dwindling rail workforce, the Uinta Basin Railway represents an entirely different vision. In effect, it would replace declining coal-train traffic on Colorado railroads with high volumes of another heavy-industrial commodity, in one of the largest sustained efforts to transport crude oil by rail ever undertaken in the U.S.

Freight trains sit idle in rail yards in Grand Junction on May 16, 2023. (Chase Woodruff/Colorado Newsline)

The railway’s projected traffic impacts — as many as five full oil trains eastbound through Denver each day, with five empty ones returning — have drawn widespread concerns that Uinta Basin trains would exceed the capacity of the Union Pacific’s Central Corridor through the Moffat Tunnel.

That would raise the possibility of the reopening of the defunct Tennessee Pass line between Leadville and Cañon City, which has been out of service since 1997. The segment’s steep grades, dismal safety record and deteriorated condition make it even more of a concern for many Coloradans than the Moffat Tunnel route. Rio Grande Pacific, the short-line railroad operator that plans to build the Uinta Basin Railway in partnership with the SCIC, is also involved with a proposal to restore tourism-focused passenger trains on Tennessee Pass, though it has assured officials in nearby communities that it doesn’t plan to transport oil on the route.

In an emailed statement, Union Pacific said it has “no plans of reopening the Tennessee Pass.”

“In the recent past, train traffic on the Utah to Denver corridor was nearly three times what it is today, in large part, because of a decline in coal trains,” the company said. “This line has the capacity to handle additional trains.”

But without additional specificity, or binding actions like the line’s formal abandonment, communities worried about the reopening of Tennessee Pass say these assurances don’t mean much.

“What they say, they may think now, but money is typically what drives decisions, no matter what anybody thinks right now,” said Matt Scherr, a commissioner in Eagle County, which has sued to overturn the Uinta Basin Railway’s approval. “We just don’t have any confidence that that’s a guarantee.”

Rail safety ordinance defeated

More than 300 miles after entering Colorado through the remote wilderness of Ruby Canyon, eastbound trains approach a point known historically as Utah Junction, in a dense industrial zone near the intersection of Interstates 70 and 25.

Beneath the dull roar of the highway viaducts to the south and east, Union Pacific and BNSF, the two companies that control virtually all of the state’s major rail routes, share the sprawling North Yard facility, which straddles the border between the City and County of Denver and unincorporated Adams County.

Denver would be the most populous city that many Uinta Basin oil trains would pass through en route to refineries in Louisiana or Oklahoma. But outside a dedicated community of climate and environmental activists, opposition to the Uinta Basin Railway in the Mile High City has been relatively muted.

“I wish that Denver was more activated about this, because our air quality is so bad,” Christensen said. “You don’t hear anything from Denver like you do the mountain communities.”

Tank cars are pictured near the Suncor Energy oil refinery in Commerce City on June 16, 2023. (Chase Woodruff/Colorado Newsline)

The lack of public outcry in Denver is in part, environmental-justice activists say, a function of which communities would be most affected by increased rail traffic.

Predominantly low-income and Latino neighborhoods on the city’s north side have long been in closest proximity to the rail yards and industrial spurs used heavily by Union Pacific and BNSF freight trains. A 2022 report by advocacy group GreenLatinos cited longstanding concerns like pollution from idling diesel locomotives, dust from coal trains and pedestrian safety risks, and it faulted the rail industry for a lack of publicly available freight-traffic data.

“Derailments happen on the mainline. They happen in Globeville. We’ve seen it,” said Ean Thomas Tafoya, GreenLatinos’ Colorado state director.

“We have legitimate alternatives to moving these goods,” he added. “We’re exporting oil for these multinational companies to pay out their dividends, and in the end, we take the harm.”

City officials have estimated that the Uinta Basin Railway could quadruple the amount of hazardous materials that travel daily through Denver within the next few years.

That looming increase, along with heightened fears following the East Palestine derailment and other recent train accidents, added new urgency to a decade-long push by Ortega, the City Council member, to more strictly regulate land use around railroad rights-of-way. Ortega’s proposed ordinance would have implemented a 100-foot setback between new buildings and railroad tracks, unless mitigation measures were implemented.

Ortega’s ordinance drew opposition from Hancock’s administration and real-estate development interests. In a letter to City Council, Rhys Duggan, the developer behind billionaire Stan Kroenke’s River Mile project in downtown Denver, faulted the proposed ordinance for seeking to “address a safety issue that seems to rank well behind other more pressing public safety concerns in the city, such as homelessness, addiction (and) violent crime.”

In a 7-5 vote on Monday, Denver City Council killed the measure.

“It’s not good policy,” Council member Amanda Sandoval said of Ortega’s ordinance prior to Monday’s vote. “I cannot be in favor of something where four major departments come out (against) it.”

In place of additional rail safety rules, emergency-management officials from Hancock’s administration told Council members they plan to request funding in next year’s budget to develop a mass evacuation plan for the city.

Mayoral candidate, Debbie Ortega, speaksDenver City Council member Debbie Ortega, then a mayoral candidate, speaks during a debate at Regis University in Denver, Feb. 9, 2023. (Kevin Mohatt for Colorado Newsline) during a debate at Regis University in Denver, CO, February 9, 2023. Kevin Mohatt for Colorado Newsline

Ortega, who will soon leave office after serving on City Council in two separate stints for a total of 28 years, said the measure’s defeat after a years-long process to study the issue and develop recommendations was unlike anything she’d experienced in her time in office.

“To just have this letter that basically is sandbagging this whole process that we’ve been engaged in collectively, without any additional recommendations of how we can do this differently, it just befuddles me,” Ortega said. “I don’t know what really is behind the opposition.”

“I’m going to be going away, but this problem is not,” she added. “You have seen more and more of these derailments happening … and if we have the Uinta Basin shipments coming through here, that quadruples the amount of petroleum products that will come through our city on a daily basis.”

Across Civic Center Park, state lawmakers on the Transportation Legislation Review Committee plan to discuss rail safety in hearings this summer, the committee’s chair, Democratic state Rep. Meg Froelich of Greenwood Village, said earlier this month.

Smith said the SMART union wants to see lawmakers pass additional rail safety laws, including limits on train length and mandating the installation of railway sensors, like so-called hot-box detectors, which can warn operators before high temperatures from wheel friction cause equipment to fail.

Some opponents of the Uinta Basin Railway have been frustrated by a lack of state-level action on the issue. To date, while nearly every Democratic member of Colorado’s congressional delegation, along with Attorney General Phil Weiser, has lodged protests with federal officials over the railway, Polis hasn’t publicly been a part of any such effort.

Colorado Gov. Jared Polis speaks at an event on climate and transportation policy at Denver’s Union Station on Sept. 1, 2021. (Chase Woodruff/Colorado Newsline)

“We haven’t heard boo from Polis,” Christensen said. “He’s letting these small mountain communities take on the oil and gas industry on their own, and doesn’t seem to have their back.”

In an email, Polis spokesperson Katherine Jones said the governor “supports the state actively evaluating potential impacts to state equities through the opportunities that exist, and has made clear to agencies that they should make these evaluations and weigh in where appropriate.” She indicated that Polis opposes the issuance of federal private activity bonds to support the railway.

“We do not want funding being diverted from the state’s key transportation needs for projects that could have damaging impacts to our rail infrastructure, adjacent road infrastructure like I-70 or the state’s key recreation and outdoor resources,” Jones wrote.

Up and down the line

Before oil trains from the Uinta Basin reach Denver, they’ll have to travel 300 miles through western and central Colorado. Before that, they’ll have to travel more than 150 miles on the existing Union Pacific tracks in Utah. And before that, they’ll have to traverse 88 miles of remote desert and pine forest on the Uinta Basin Railway itself.

Although concerns about the railway have been most acutely felt in Colorado, opponents say the oil trains will pose risks along all 500 of those miles, all the way up the line to the Ashley National Forest and the Duchesne River watershed.

“This is 88 miles of new rail construction, and just that alone would create tremendous environmental harm — everything from negatively impacting water quality to destroying sage grouse habitat,” said Seed. “But then when you add into the mix the climate impacts of this, it gets even worse.”

The Price River near Kyune, Utah, where the proposed Uinta Basin Railway would meet the existing Union Pacific line, is pictured from an Amtrak passenger train on June 5, 2023. (Chase Woodruff/Colorado Newsline)

After passing through Denver, most of the Uinta Basin oil trains would then head for refineries in Texas and Louisiana, federal regulators estimated, with a smaller percentage bound for Oklahoma. Using industry routing models, the STB’s downline analysis determined that most of the trains would travel north or northeast out of Denver, while a smaller amount of traffic would be routed south along the I-25 corridor, or east along I-70.

At a time when scientists have issued increasingly urgent warnings about the need to rapidly and dramatically lower greenhouse gas emissions, the Uinta Basin’s increased production could raise total annual U.S. emissions by nearly 1%, regulators estimated.

“Is the Line worth all of this given the activity it is intended to support?” Oberman, the STB’s chair, wrote in his 2021 dissent against the railway’s approval. “Without evidence that there is some particularized need for oil from the Basin, in the face of overwhelming evidence to the contrary, and given the irrefutable fact that this oil’s use will contribute to the global warming crisis, I cannot say that it is.”

The railway’s proponents, led by the Seven County Infrastructure Coalition, are adamant that the increased rail traffic will pose no undue risks to Colorado and other states on the downline route, writing in an op-ed earlier this month that though they “understand that project opponents feel the need to be heard,” the Uinta Basin’s toxic waxy crude “does not present an environmental concern if there were a derailment.”

“These things and far more are already going through their backyard every day,” Keith Heaton, the SCIC’s executive director, said in an interview. “The waxy crude, and the way we’re intending to do it, is probably one of the least of their worries in life … The logistics of all of this make it relatively speaking pretty safe and harmless.”

Train tracks along the Colorado River north of Gypsum in Eagle County are pictured on June 12, 2023. (Chase Woodruff/Colorado Newsline)

SCIC representatives said at the coalition’s June meeting that they plan to submit an application for the tax-exempt private activity bonds “in the near future,” setting up a potentially pivotal decision for Buttigieg and the DOT.

“We’re hopeful that the Biden administration will say no, because this sort of thing is so entirely contrary to their stated policies about addressing the climate crisis,” Seed said.

Members of Colorado’s congressional delegation wrote in a letter to Buttigieg this year that there is “no precedent” for the approval of private activity bonds to finance industrial fossil-fuel infrastructure, and opponents say that the railway’s decision to apply for them is a sign that the project is already on shaky financial ground.

“This is such a sketchy project. It’s highly speculative,” Seed said. “It seems like they’re having trouble raising the money.”

Led by Bennet and Neguse, Colorado officials have asked at least four different federal agencies to intervene to halt or re-analyze the project. Although the U.S. Forest Service last year said it would issue a key permit for a railroad right-of-way through a protected area, it has not yet issued a so-called record of decision under the National Environmental Policy Act, meaning that it could still choose to deny the permit.

A road crosses the tracks of the Union Pacific railroad near Tolland, three miles east of the Moffat Tunnel in Gilpin County. (Chase Woodruff/Colorado Newsline)

Meanwhile, the lawsuit filed by Eagle County, the Center for Biological Diversity and other environmental groups is pending, after oral arguments were heard in May by the U.S. Court of Appeals in Washington, D.C. If the court finds fault with the STB’s decision, it could choose to overturn the decision entirely, though it’s more likely, several plaintiffs said, that it would remand the case back to the agency with instructions to more closely scrutinize downline impacts and potential mitigation measures.

For many people in Colorado, however, the risks of the Uinta Basin Railway will likely always be too great to shoulder, the worst-case scenarios too numerous to count. If the railway is built, Colorado communities could face decades of anxiety about the potentially catastrophic consequences it could one day bring to their doorsteps — a truck crash in Palisade, a fire in Dotsero, a spill in Fraser, an explosion in Globeville. History and the STB’s accident analysis leave no doubt: As the years pass, the likelihood that disaster will strike at some point, somewhere down the line, grows closer to a statistical certainty.

“What we’ve seen with all of these disasters is lots of assurances from both (industries) and the railroads themselves saying that things are safe. They’re clearly not — at least not to the extent that I think the public expects,” Scherr, the Eagle County commissioner, said. “There is an accepted rate of incident, because they have those formulas, and they expect them.”

“When we’ve seen all these disasters, the public is clearly not in agreement with what may be an acceptable level of risk,” he continued. “When you increase volume, you will increase incidents. And what those incidents look like are varied, including derailments, which in this case risks dumping that freight into the water supply for 40 million people downstream.”

Headwaters: At the #ColoradoRiver’s source, oil trains would pose risks to both sides of the Divide: Fears of a ‘catastrophic derailment’ of Uinta Basin Railway tankers might be highest in Grand County — #Colorado Newsline #ActOnClimate #COriver #aridification

Colorado River “Beginnings”. Photo: Brent Gardner-Smith/Aspen Journalism

Click the link to read the article on the Colorado Newsline website (Chase Woodruff):

At 88 miles long, with a projected capacity of up to 350,000 barrels per day, eastern Utah’s Uinta Basin Railway would rank among the most ambitious efforts to haul crude oil by rail ever undertaken in the United States.

But it’s not the largest ever considered.

That label belongs to a proposed 580-mile, dual-track railroad to the northern coast of Alaska studied by the U.S. Department of Transportation in the early 1970s. The route would have hauled as much as 2 million barrels per day from the oil fields of Prudhoe Bay, but in the end it was ditched in favor of what was deemed a safer and more efficient method of transport: the Trans-Alaska Pipeline, which instead pumped the oil 800 miles to the port of Valdez, where it could be loaded into tanker ships.

It was a solution that came with its own set of risks, and in the years leading up to the pipeline’s completion, the federal government and the consortium of oil companies that built it made a series of assurances about the safeguards that would be in place. Experienced harbor pilots would guide vessels through the length of Prince William Sound. An upgraded navigation system would further reduce the chances of a ship veering off course. Tankers would be double-hulled to lower the risks of spills, and robust contingency plans would spell out effective containment measures in the event that disaster did strike.

In short, facing widespread environmental concerns, the backers of the project promised that everything would be fine. For nearly 12 years, it was.

A 1972 federal government study evaluated options for transporting crude oil from Alaska’s Prudhoe Bay. The Trans-Alaska Pipeline, which shipped oil to the port of Valdez in Prince William Sound, was selected over other options that included a 580-mile railroad extension from Fairbanks. (U.S. Department of the Interior)

Gradually, however, many of the promised safety measures went unfulfilled, ebbed away or fell victim to cost-cutting. Pilotage requirements were eased at oil companies’ request. The region’s navigation system was downgraded to save money. The Coast Guard dropped its double-hull mandate in the face of industry opposition, and contingency plans were drawn up based on unrealistic assumptions.

As the risks mounted, and minor incidents and near-misses added up, environmental advocates issued increasingly urgent warnings about the tanker traffic in Prince William Sound. Long before a tanker named the Exxon Valdez left the port late on March 23, 1989, locals knew “the Big One” was coming. On the very night that the tanker departed, in fact, marine biologist Riki Ott spoke at a public meeting of concerned Valdez residents to warn officials of the potential consequences.

“When, not if, ‘the Big One’ does occur, and much or all of the income from a fishing season is lost, compensation for processors, support industries and local communities will be difficult if not impossible to obtain,” Ott said in remarks made just hours before the Exxon Valdez ran aground in the early-morning darkness on March 24.

Of the dozens of Colorado communities lying along the “downline” route of the Uinta Basin Railway’s oil trains, fears of a potential “Big One” may be highest in Grand County, where the Colorado River and several of its fragile tributaries flow through the high alpine meadows of Middle Park. Just like Ott and other concerned Alaskans in the 1980s, residents here speak about what happens when, not if, a train derails. They’ve grown especially apprehensive following a derailment and chemical spill involving a Norfolk Southern train in East Palestine, Ohio, in February.

“The chances of derailment in Colorado along these windy canyons goes way up,” said Kirk Klancke, president of the Colorado River Headwaters Chapter of conservation group Trout Unlimited. “East Palestine, Ohio, didn’t give us any confidence, either.”

An oil spill here, not far from where the Colorado River’s headwaters flow from the western side of the Continental Divide in Rocky Mountain National Park, could immediately threaten water supplies in towns that rely on it as their one and only source. Farther along, where the railroad finally parts ways with the Colorado and turns south to follow the Fraser River’s course instead, a spill could pollute water on both sides of the divide, since much of the Fraser’s water is diverted through several tunnels under the mountains to thirsty cities on the populous Front Range.

“Damaging the environment for a long period of time — I think that would have an impact all the way down, since we’re the headwaters,” Klancke said. “Especially considering how hard it is to clean this up.”

In East Palestine and other towns nearby, residents are bracing themselves for regulatory and court proceedings that could take years to unfold, amid lingering uncertainty about exposure levels and the long-term health risks posed by hazards like the toxic vinyl chloride that was burned in the aftermath of the derailment.

An aerial view of the aftermath of the train derailment and chemical fire in East Palestine, Ohio, in February 2023. (National Transportation Safety Board)

Hilary Flint, a resident of nearby Enon Valley, Pennsylvania, said she and many others have experienced health symptoms like rashes, burning eyes and respiratory issues in the months following the accident. A cancer survivor, Flint said she plans to move out of her fourth-generation family home and relocate out of state after testing showed elevated levels of vinyl chloride and ethylhexyl acrylate, another hazardous chemical that was spilled as a result of the crash.

Along with other members of a group called the Unity Council for the East Palestine Train Derailment Community, Flint is organizing residents to make demands of Norfolk Southern and advocate for regulations to limit the risk of similar incidents occurring in the future.

“For the people that are in a town with train tracks going right through, now is the time to check and see: What training is your fire department doing?” she said. “What type of emergency response plan exists?”

“What happened in East Palestine can happen anywhere,” Flint added. “If we’re not holding these large companies accountable, this is going to keep happening in small communities, and everyone needs to be prepared for what that could look like.”

Magnified risks

After completing the last of the sharp curves that snake through Byers Canyon, eastbound trains on the Union Pacific railroad emerge directly into the town of Hot Sulphur Springs, passing between the Colorado River and the resort that has drawn visitors here for more than 150 years.

Soon, as many as five fully loaded, two-mile long crude oil trains per day could pass just a hundred feet from the naturally heated pools of mineral spring water at the Hot Sulphur Springs Resort and Spa. As they pass through town, trains block the only entrance to the resort, a dirt road that intersects with the tracks at a so-called grade crossing — one of many such crossings across rural Colorado that lack the gate arms and warning lights that are required in more highly-trafficked areas.

“There are locations all over the state that don’t have the emergency arms over the railroad tracks,” Craig Hurst, manager of the Colorado Department of Transportation’s Freight Mobility and Safety Branch, said in an interview.

“You still see far too many rail and truck events, where the truck is centered on a rail line, and a locomotive, obviously, couldn’t stop that quickly,” Hurst said. “You can’t see very far in some of these locations — you can do everything right and still be in a bad spot.”

Though they’re one of the most common causes of train accidents, collisions with cars and trucks at grade crossings are just one of many reasons trains in Colorado derail. More than 480 accidents on “mainline” rail segments across the state have been reported to the Federal Railroad Administration since 2000, with causes ranging from broken or worn-out tracks and defective equipment to rockslides, heavy snowfall and other “extreme environmental conditions,” including floods and high winds.

Railroad tracks along the Colorado River in Byers Canyon on June 11, 2023. (Chase Woodruff/Colorado Newsline)

Though railroads are tight-lipped about the freight that travels on their rails, estimates from federal regulators and summary data released by local officials suggest the Uinta Basin Railway could more than quadruple the amount of freight rail traffic through central Colorado, and dramatically increase the percentage of that traffic that is made up of hazardous materials.

“When you are significantly increasing rail traffic in one area, then whatever risks there may be — and there are always risks — those simply are magnified,” Eagle County Commissioner Matt Scherr said in an interview. Eagle County has joined five environmental groups in suing to overturn the railway’s approval.

In its environmental review of the project, the federal Surface Transportation Board analyzed “downline” impacts like the increased risk of train accidents in Colorado, including a spill of up to 30,000 gallons of crude oil roughly once every five years.

But the STB’s analysis stopped there. It didn’t examine in detail the risks that such a spill could pose to communities and ecosystems in the downline area — an omission that Eagle County’s lawsuit called “arbitrary and capricious.”

With the STB’s approval and the granting by the U.S. Forest Service of a 12-mile right-of-way permit through a protected area in Utah’s Ashley National Forest, President Joe Biden’s administration is poised to greenlight the Uinta Basin Railway over objections from Colorado officials. The project still needs to secure billions of dollars in financing before construction can begin; backers have announced plans to seek tax-exempt Private Activity Bonds that must be approved by the U.S. Department of Transportation, drawing further protests from the railway’s opponents.

From left, Glenwood Springs Mayor Jonathan Godes, state Sen. Dylan Roberts, U.S. Rep. Joe Neguse, U.S. Sen. Michael Bennet and Colorado House Speaker Julie McCluskie participate in a press conference near Interstate 70 at the confluence of Grizzly Creek and the Colorado River to voice opposition to the Uinta Basin Railway project, April 7, 2023. (Chase Woodruff/Colorado Newsline)

Even without the increased oil-train traffic, Middle Park is a region where water supplies are under threat.

In Hot Sulphur Springs, where 100% of the town’s water comes from the Colorado River, residents this spring were under the latest in a series of water conservation orders that the Public Works Department has implemented since the 2020 East Troublesome Fire. Spring runoff flowing over ash and silt in the fire’s burn scar has increased the turbidity of the water that Hot Sulphur Springs draws from the river, slowing down the rate at which it can treat drinking water.

Like most crude oils, the waxy crude produced in the Uinta Basin is a toxic cocktail of hydrocarbons and other chemicals, from heavy metals to volatile organic compounds like benzene.

When 60,000 gallons of oil were spilled into Canada’s North Saskatchewan River by a leaky pipeline in 2016, three cities that drew drinking water from the river were forced to shut down their intakes for nearly two months while authorities evaluated health risks and treatment options. A temporary 18-mile pipeline was laid to provide potable water to residents in the meantime. Similar precautions were being taken this week by communities who rely on the Yellowstone River in Montana, where a bridge collapse caused a hazmat spill from a train operated by Montana Rail Link.

The cost to clean up the Saskatchewan spill — a release of about two tanker cars’ worth of oil — totaled at least $107 million.

“If you lose your water supply,” Klancke said, “it’s going to cost these towns a lot of money to get it back.”

‘An absolute disaster’

Heading east into Granby, trains on the Union Pacific’s Central Corridor travel along the southern edge of the Windy Gap Reservoir, a potent symbol of Grand County’s vulnerable water supplies and the risks that its rivers face in a hotter, drier climate.

Disasters like the East Troublesome Fire — an unprecedented fast-moving blaze that scorched more than 150,000 acres in the headwaters region over a two-day period in late October — have laid bare the stakes of climate change. But even before the worsening risks of drought and aridification are taken into account, Grand County’s rivers and streams rank as some of the most endangered waterways in the country.

“We only have 40% of our native flows, because 60% gets diverted to Front Range cities,” Klancke said. For years, his Trout Unlimited chapter has lobbied for projects to restore the health of riparian ecosystems in the region, like a $27 million diversion channel that will allow fish to bypass the Windy Gap dam.

Located at the confluence of the Colorado and Fraser rivers, the Windy Gap Reservoir collects tens of thousands of acre-feet of water per year, which is pumped six miles north to Lake Granby and then under the Continental Divide to the watershed of the Big Thompson River. It’s part of an extensive system of reservoirs and conduits that make up the Colorado-Big Thompson Project, which supplies drinking and irrigation water to 1 million people in 33 Front Range municipalities.

It’s only one of several “transbasin” diversion projects that impact watersheds in Grand County. And the reduced flows that result from the diversions are a big reason why residents and county officials are especially worried about the consequences of an oil spill here.

“They say the solution to pollution is dilution — if you’re able to get more water to come through, eventually it will clean out,” said Rich Cimino, a Grand County commissioner. “But our rivers are shrunk. We’re spending millions of dollars over decades to narrow and deepen and shade our streams. A lot of repair work has to happen so that these streams can be healthy again, with less water.”

“If there was some kind of a spill, these little streams would just be obliterated,” Cimino added. “It would be an absolute disaster, even worse than if we didn’t have the water diversions.”

Residents here accept the inevitability of the transbasin diversions; 80% of Colorado’s precipitation falls on the western side of the Continental Divide, but 90% of its population lives on the eastern side. But the arrangement means that much of the responsibility for mitigating risks to Front Range water supplies falls on a county with only a fraction of the Interstate 25 corridor’s population and financial resources.

Granby, two miles east of the Windy Gap dam, is the largest of Grand County’s municipalities, with a whopping 2,079 residents.

“Small counties like us — we ourselves aren’t capable of cleaning up (an oil spill),” said Klancke. “Yet we’re going to be the first responders.”

Evacuees leave Granby as the East Troublesome Fire burns in the distance, Oct. 22, 2020. (Chase Woodruff/Colorado Newsline)

Grand County is hardly a hotbed of tree-hugging, anti-fossil-fuel sentiment. It’s a world away from the liberal jet-set enclaves of Vail and Aspen, and all three members of its Board of County Commissioners are Republicans.

But after hearing from concerned residents and groups like Trout Unlimited, commissioners wrote in a February letter to Colorado Gov. Jared Polis that the county would be “formally opposing” the Uinta Basin Railway unless a series of safeguards were put in place. The requested contingency measures included an emergency response plan approved by state wildlife officials and the hiring of an experienced cleanup contractor on retainer.

“Grand County is very concerned with the capacity and response times of the specialized emergency services capable of containing a crude oil spill,” commissioners wrote. “Should a spill occur in Grand County, it will have reverberating impacts across the entire state of Colorado.”

Anne Junod, a researcher with the Urban Institute who has studied the risks and community perceptions of oil trains, said in an interview that her research shows a unique set of concerns on the part of residents who live along rail corridors outside of major metropolitan areas.

“What you see is, the emergency and first responders tend to be a lot more volunteer-based — they just have fewer resources, less emergency responder capacity, smaller tax bases to invest in those types of things than your larger metros,” she said.

In recent decades, most major train disasters have occurred in rural areas like East Palestine, where, compared to densely-populated cities, there are far more miles of track and fewer people and resources to properly inspect and maintain them.

“It really is just a numbers game — there’s over 140,000 miles of track in the U.S., and well over 100,000 of those are going through rural and tribal areas,” Junod said.

“You have these larger inspection regions, where for the most part it’s impossible to adequately spend the time you need to make sure that tracks and infrastructure are adequate quality,” she added. “What we’ve been seeing over the last 15 to 20 years — a lot of the catastrophic derailments we’ve seen, (National Transportation Safety Board) findings have shown that oftentimes, it’s due to inspection issues that just weren’t caught.”

So far, Grand County hasn’t received any of the assurances it asked for. Though its opposition to the railway came too late for it to join other Colorado city and county governments in supporting Eagle County’s lawsuit in an amicus brief earlier this year, Cimino, for his part, wishes the county had understood the risks sooner.

“I’m confident we would have (joined), if we had known everything at the right time,” he said. “Just up and down, it’s only negatives to us, no positives to us.”

Long-term fallout

In the winter, trains bound for Denver climb a tree-lined ridge a few miles south of the town of Fraser, then emerge into a clearing where they can find themselves in a race with skiers just a hundred feet to their right, making their way down a beginner’s slope that runs in parallel with the railroad to the base of the Winter Park Resort.

It’s the only ski resort in America served directly by passenger rail — not an insignificant selling point, at a time of widespread angst about wintertime traffic congestion on the Interstate 70 corridor. Like so many other parts of Colorado’s railroading legacy, the “Ski Train” was pioneered by the Denver & Rio Grande Railway in 1940, Winter Park’s first year in operation, and although the service has lapsed several times since then, Amtrak has run its weekend Winter Park Express line during the ski season since 2017.

Grand County’s population can double during the busiest periods of the winter and summer tourist seasons, leaving it heavily dependent on the economic activity generated by skiing, rafting, fishing and other outdoor activities.

The Winter Park Resort is the only ski area in the U.S. directly served by passenger rail. (Chase Woodruff/Colorado Newsline)

Colorado has over 9,000 miles of fishable trout streams, but only 325 of them are deemed “Gold Medal” waters, a certification from Colorado Parks and Wildlife that a river segment can consistently produce quality stock. Forty of those miles lie within Grand County. Advocates like Klancke are proud of the hard-won designation for such a vulnerable area — and fearful that all of that progress could be suddenly undone by an oil spill.

“It means a lot of dollars on a state level. For us, it’s in the tens of millions, just in our small community,” Klancke said. “It’s a huge part of our economy, so that would be the main loss from a financial point.”

Such concerns are why, in addition to contingency plans and response equipment, Grand County asked for funds to be placed in an escrow account to cover the costs of a potential oil spill caused by a Uinta Basin train. The county’s request didn’t specify an amount, but noted that the cleanup of a 2010 oil spill in the Kalamazoo River ran to $1.2 billion.

“A bond in place to guarantee payment for loss, rather than years of being in court — in a small county, these are the ways we have to think,” Klancke said. “We don’t have the money to incur the loss of funds for a long period of time.”

It’s a lesson that opponents of the Uinta Basin Railway are drawing from countless oil spills and other disasters over the decades, from the Exxon Valdez to East Palestine. Often, the immediate ecological damage and emergency response only represent the start of a disaster that can take years to fully unfold.

In Grand County and elsewhere, the deepest fears about the railway concern the unknown — the uncertain future that would await communities along the Colorado River in the event of a catastrophe that, in the words of 10 local governments in their March legal brief supporting Eagle County’s lawsuit, “could ruin this unique region for decades.”

Anglers fish on the Colorado River near an idle Union Pacific freight train in western Grand County on June 12, 2023. (Chase Woodruff/Colorado Newsline)

For coastal communities in Alaska, some of the most devastating effects of the Exxon Valdez spill were those that accumulated gradually in the years afterwards, as the long-term harm to fisheries became clear, a court battle over damages dragged on for almost two decades, and individuals and families suffered from what psychologists call collective or disaster trauma.

Nearly five months after the East Palestine derailment, residents are steeling themselves for what could prove to be a similar experience in the months and years ahead. As is often the case, divisions within the community are forming as environmental mitigation, legal proceedings and public-relations efforts by Norfolk Southern get underway.

“A lot of the communities are split — half of the people are sick, they’re pissed off, they’re trying to fight,” Flint said. “The other half are really just kind of acting like nothing’s wrong. They’re like, ‘Well, the EPA has told us everything’s fine. Norfolk Southern is giving us a $25 million park now. That’s great.’”

Community members have asked Ohio state officials and Norfolk Southern to fund independent environmental monitoring and health testing for impacted residents, as well as to cover temporary relocation and cleanup costs for those who may be at risk of continued exposure.

“We’re almost at five months, and there are people that have never gotten to leave their home, and never had their homes professionally cleaned, that have just been exposed continually, and that’s unacceptable,” Flint said. “There’s so much incomplete information going around that it’s made it very difficult for people to understand what we’re really dealing with.”

Junod noted widespread concerns about railroad liability insurance following a 2013 explosion caused by an oil-train derailment in Lac-Mégantic, Canada. Insurers at the time offered liability coverage of up to $1.5 billion for the largest rail operators; Norfolk Southern has said it’s insured for losses of up to $1.1 billion in the wake of the East Palestine accident. But even in rural areas, damages can far exceed those amounts.

“East Palestine is the most recent, it is not unique. Most of these are happening in towns about that size or even smaller,” Junod said. “We have a market failure that cannot cover, I’m not even going to say a worst-case scenario, (just) a bad-case scenario. It just will not address the magnitude of the potential impact — economic loss, and then, of course, human loss.”

The ‘short line to Zion’

Eastbound trains approach the curve at the base of Winter Park slowly. Past the bunny slopes and the resort’s bare-bones Amtrak stop, they cross a short bridge over the Fraser River and an access road.

Then they disappear into darkness.

Railroad tycoon David Moffat didn’t live to see the completion — or even the beginning — of the 6.2-mile tunnel under the Continental Divide that bears his name. He died nearly penniless in New York in 1911, having exhausted his fortune trying and failing to end a half-century of frustration by building a direct transcontinental route over the Rocky Mountains west of Denver.

Incorporated in 1902, the Denver, Northwestern & Pacific Railway, better known as the “Moffat Road,” was the final attempt to realize what had become a lifelong fixation for Moffat, who had previously surveyed potential routes across the Divide as president of the Denver & Rio Grande in the 1880s.

In 1902, railroad tycoon David Moffat promised to end decades of frustration in Denver and build a direct route to Salt Lake City over the Rocky Mountains, but like others before it, the effort ended in failure. (Colorado State Library)

The Moffat Road achieved a partial victory in 1904, when it built what was to be a temporary line across Rollins Pass, at an elevation of nearly 12,000 feet. But tracks were subsequently laid only as far as the Yampa River Valley, never reaching Salt Lake City to complete the “short line to Zion” that Moffat had promised, and the high costs of building and maintaining the railroad in the near-constant blizzard conditions atop the mountains bankrupted the company before work on a long-planned tunnel could begin.

It took more than a decade of effort following Moffat’s death, and a large public subsidy raised by a new tax district, for crews to finally start digging. The Moffat Tunnel’s construction was among the largest and most dangerous infrastructure projects in Colorado history, costing an estimated $410 million in 2022 dollars and resulting in the deaths of 28 workers. Today, the tunnel is still owned by the state, and rented out to Union Pacific on a 99-year lease that expires in 2025.

Alongside the main tunnel, a service shaft used by workers during construction today serves a different purpose: transporting up to 100,000 acre-feet of water annually from the Colorado River Basin to the Front Range to be used by the Denver Water system.

Moffat Water Tunnel

On the Western Slope, it takes eastbound trains more than 150 miles to gradually climb from 5,200 feet in elevation near Rifle to the west entrance of the Moffat Tunnel at 9,200 feet. But after exiting the tunnel on the other side of the Divide, trains reverse that gain in a 4,000-foot descent that takes fewer than 50 miles as they charge down the steep eastern face of the Front Range into Denver.

The East Portal of the Moffat Tunnel near Tolland is pictured on June 26, 2023. (Chase Woodruff/Colorado Newsline)

Much of that descent comes in the narrow gorges of the South Boulder Creek watershed, alongside flows that in large part are diverted into the creek by the Moffat service tunnel.

“Gross Reservoir is mostly Fraser River water, with some South Boulder Creek water,” Klancke said. “So a spill there — Denver could lose a large percentage of their water supply to the north end.”

Denver Water, which serves more than 1.5 million people in the city and surrounding suburbs, oversees a large system with three water treatment plants and reservoirs in multiple watersheds, giving it “some flexibility to pull water from different sources” in the event of a major spill, a spokesperson wrote in an email. But Jim Lochhead, the utility’s CEO, wrote to U.S. Transportation Secretary Pete Buttigieg earlier this year about mitigating the risks posed by the Uinta Basin Railway.

“We joined nearby counties, organizations, elected officials and coalitions to request that more be done to protect Colorado’s water if the project is approved, including analysis of rail safety practices, an assessment of the health of railroad infrastructure through this corridor, and assistance to local authorities in preparing for — and responding to — a spill, including response plans for each county,” said Denver Water’s Jimmy Luthye.

Klancke and others in Trout Unlimited’s Headwaters chapter like to say they’re “not a fishing club,” but an environmental organization “with members who like to fish.” In such a fragile environment, near the very source of a river that so many people across Colorado and the West depend on, that attitude is born out of necessity. From Grand County, it’s not possible to travel any further upstream; damage done here, whether by a catastrophic oil spill or the mounting drought and wildfire risks posed by climate change, could very well be permanent.

“Our chapter, we live at ground zero,” Klancke said. “And we feel if we can’t save these rivers, then all the rest of the rivers in Colorado on the Western Slope are lost, too.”

The Canyons: Oil and #water could mix in #ColoradoRiver country known for its beauty, fragility: Accident risks for proposed oil trains could be highest in a rugged region that has seen numerous derailments — Colorado Newsline #ActOnClimate #COriver #aridification

Click the link to read the article on the Colorado Newsline website (Chase Woodruff):

Beneath the limestone cliffs, the trunk of a lone, dead lodgepole pine stuck straight up from the brush along the riverbank, looming over a remote stretch of the Colorado River in northern Eagle County.

Inside the train cars passing by on the opposite side of the river, a voice came over the loudspeaker, pointing out to passengers the dark shape perched inside the nest atop the barren tree.

“The two bald eagles are gone, but that’s one of the younger ones that hatched this year,” the Amtrak conductor said. “They won’t get their crown of white feathers on top of their head until they’re almost a year and a half old — they look like giant crows, really, the younger ones. Maybe we’ll see mom and dad fishing down here in a little while.”

Colorado River along the Colorado River Road from CO-131 to Dotsero May 21, 2023.

No part of the 51-hour journey between Chicago and Oakland is more vital to the appeal of Amtrak’s California Zephyr than the 100-mile segment between stops in Glenwood Springs and Granby. Few passengers opt for the Zephyr because it’s an efficient mode of cross-country travel; they’re in it for the scenery, and the high country of the central Rocky Mountains provides that in abundance.

The Dotsero Cutoff, as this part of the Union Pacific’s Central Corridor is known, became in 1934 the last major segment of the current route to be completed. It ended a 75-year struggle by Colorado leaders to establish a relatively direct east-to-west rail route over the Rockies to Utah, finally eliminating the southward detour to Pueblo and the Royal Gorge that had added nearly 200 miles to the journey between Denver and Salt Lake City.

With Union Pacific’s closure of the Tennessee Pass line to the southeast in 1997, the Dotsero Cutoff became the only way to travel from the Western Slope to the Front Range by rail. It’s the route that as many as five fully loaded, two-mile-long crude oil trains from Utah’s Uinta Basin could soon take on their way to refineries in Texas and Louisiana, drastically increasing the flow of hazardous materials on some of the most rugged stretches of railroad track in the country.

The project, backed by a partnership between seven Utah county governments and private industry, has received several key approvals from the Biden administration, despite mounting protests from Colorado officials. The railway’s backers have signaled they will soon apply for $2 billion in tax-exempt Private Activity Bonds that must be approved by the U.S. Department of Transportation.

By the time eastbound trains pass through Glenwood Springs, they’ve already gained nearly 2,000 feet in elevation since crossing the Colorado-Utah border, and they will gain roughly 3,000 more as they continue their charge upwards through the Colorado River Valley, nearly as far as the river’s headwaters in Rocky Mountain National Park.

After turning to the northeast at Dotsero, leaving Interstate 70 behind, the Central Corridor mainline winds through narrow gorges and sensitive wetlands along little-traveled dirt roads, and even into remote corners of wilderness where there are no roads at all. Amtrak conductors, pulling double duty as tour guides, tell passengers of the only two ways to pass through a four-mile stretch of Gore Canyon southwest of Kremmling: in comfort on the California Zephyr, or over the dangerous Class V rapids on the Colorado River below.

This was the region where the historic Denver & Rio Grande Railway, which ruled Colorado’s railroads for over a century before being acquired by the Union Pacific in 1996, earned its boastful motto of “Through the Rockies, Not Around Them.” And it’s where many Coloradans fear the Uinta Basin Railway’s crude oil trains would be most likely to cause an accident.

Passengers on Amtrak’s California Zephyr sit in the sightseer lounge on June 5, 2023. (Chase Woodruff/Colorado Newsline)

A derailment or spill in this region could be disastrous for communities and ecosystems along the river, the railway’s opponents say, especially in an era of worsening impacts from climate change. The grandeur of these mountain vistas goes hand in hand with their vulnerability, and many of them are more at-risk than ever — even before a daily deluge of crude oil trains is added to the mix.

“With the great beauty and awe of these sheer cliffs, they tend to crumble,” said Jonathan Godes, a City Council member and former mayor of Glenwood Springs. “It’s a very fragile place, as we’ve seen over just the last several years.”

‘Incredibly problematic’

General Motors executive Cyrus Osborn was traveling through Glenwood Canyon on a new diesel locomotive his company had built for the Denver & Rio Grande Railway on July 4, 1944, when the idea came to him: a passenger car with a domed roof that would allow tourists traveling the Rockies by rail to take in the sights.

The first California Zephyr train rolled through the canyon five years later with five gleaming steel Vista-Dome cars in tow, inaugurating a railroading tradition that lives on today in the domed sightseer lounges still offered on the modern-day Zephyr and six other Amtrak passenger lines. So instantly iconic were the Vista-Domes that in 1950 the Denver & Rio Grande erected a monument in Glenwood Canyon commemorating the site where Osborn had his vision, and for decades a scale replica of the silver sightseeing coach sat atop a stone arch by the Colorado River near Grizzly Creek.

But today the monument sits among the other relics in the yard at the Colorado Railroad Museum in Golden. It was evicted in the late 1980s, when crews building the final section of I-70, after decades of planning and design, finally entered the canyon.

Inspired by the scenery in Glenwood Canyon, Cyrus Osborn’s Vista-Dome inaugurated a railroad craze for sightseeing lounges, like the one pictured at left at a 1956 promotional event in Denver. A monument, top right, marking the spot of Osborn’s inspiration stood in Glenwood Canyon for a decade but was evicted ahead of Interstate 70 construction in the late 1980s and is now housed at the Colorado Railroad Museum in Golden, bottom right. (Denver Public Library Special Collections, Z-6019 & OP-11050, Chase Woodruff/Colorado Newsline)

Opened to traffic in 1992, the 12.5 miles of tunnels, bridges, viaducts and retaining walls between Dotsero and Glenwood Springs were some of the last of the more than 40,000 miles of interstate envisioned by the Federal-Aid Highway Act of 1956, and, at $40 million per mile, some of the most expensive.

Nationally, the project marked “the completion of the original U.S. interstate highway system,” federal officials declared. In western Colorado, it symbolized the final victory of cars and trucks over the iron horses that had first steamed into the Colorado River Valley a century earlier.

For the 2,000-foot rock walls of Glenwood Canyon, though, a century passes in the blink of an eye. The Colorado River has been carving through them, inch by inch, for over three million years — a process that neither the railroad nor the interstate could ever hope to stop.

Rockfalls and washouts have long wreaked havoc on any form of transportation attempted through the canyon. The dirt paths and two-lane state roads that preceded the interstate’s construction were some of Colorado’s most dangerous. Since 1976, at least 21 train accidents reported to the Federal Railroad Administration have occurred within the canyon’s boundaries.

Traffic flows along Interstate 70 through the burn scar of the Grizzly Creek Fire in Glenwood Canyon east of Glenwood Springs on June 9, 2023. (William Woody for Colorado Newsline)

Rocks on the track were to blame for the derailment of a California Zephyr train in Glenwood Canyon in 1968, and a “heavy build-up of snow on the track” caused an Amtrak derailment on Christmas 1988. A train hauling 14,000 tons of coal derailed near Grizzly Creek due to broken spikes in 2004. The partial collapse of a tunnel wall just east of Glenwood Springs caused another Union Pacific freight train to derail in May 2017.

But a new era of Glenwood Canyon dangers began with back-to-back disasters in 2020 and 2021. First, the Grizzly Creek Fire scorched more than 32,000 acres in and around the canyon during what became by far Colorado’s worst wildfire season on record. A year later, heavy rainfall triggered mudslides in the fire’s burn scar, sending heavy debris flows plummeting down its cliffs and into the river below and closing I-70 and the railroad for weeks.

Cleanup and repair costs after the 2021 mudslides ran into the tens of millions of dollars, and Gov. Jared Polis’ administration has asked the federal government for a total of up to $116 million for projects that would mitigate the risks of similar damage in the future.

For many people in Colorado, the Grizzly Creek Fire and its aftermath became a potent symbol of the dangers and disruptions the state faces as climate change worsens. Now, for many of those Coloradans, the fragile Glenwood Canyon epitomizes the additional risks posed by the Uinta Basin Railway — which would not only increase heavy freight traffic and hazardous-materials shipments through the canyon but also help fuel the very climate crisis that’s putting it under stress in the first place.

Muddy tracks and equipment are pictured from the rear of an Amtrak train traveling through Glenwood Canyon on June 5, 2023. (Chase Woodruff/Colorado Newsline)

“It’s incredibly problematic, running 10 miles’ worth of toxic waxy crude through some of the most sensitive and fragile and dangerous territory, possibly in the country,” said Godes.

In some places, the debris flows in August 2021 buried the Union Pacific tracks under several feet of mud. Less severe flows and washouts have continued to impact rail operations through the canyon, including on two separate occasions last month.

“Fortunately, there wasn’t a train going through, but it completely buried that line,” Eagle County Commissioner Matt Scherr said of the 2021 mudslides. “And at this point, if you up the volume of rail traffic to the extent they’re talking about, it’s just a much higher likelihood that any landslide that does happen is going to hit a train.”

A washout covered railroad tracks near Glenwood Springs under a layer of mud on May 2, 2023. (City of Glenwood Springs)

“We are aware of the hazards of mudslides in Colorado, which impacts both rail and highways, and we are working closely with the Colorado Department of Transportation to mitigate risks,” a Union Pacific spokesperson wrote in an email.

In April, some of Colorado’s top elected officials chose a spot beside the river in Glenwood Canyon for a press conference in which they denounced the railway project in some of their strongest language yet. Standing beside an oil drum representing one of the roughly 315,000 barrels of crude that could pass through the canyon daily, Democratic U.S. Sen Michael Bennet said approval of the project “would be a black mark on the president’s environmental record.”

“This train has no business bringing this oil from Utah through Colorado, period,” Bennet said. “Anybody who has spent any serious time in this canyon understands what the risks really are — what these mudslides really look like, what these fires really look like.”

‘Elevated risk factors’

There were no mudslides or blizzards in Glenwood Canyon on the night of Jan. 15, 1909 — just a busy railroad, two train crews speeding towards their destinations, and a system that lacked standardized safety measures and regulations.

The 1909 train wreck near Dotsero was one of the deadliest accidents in Colorado railroad history. (Colorado State Library)

By the time the crew of the westbound Denver & Rio Grande passenger train came around the bend near Spruce Creek and saw the oncoming freight train, it was too late. The passenger train’s engineer had misjudged the time by 10 minutes, and the two trains collided head-on in a fiery crash.

The Dotsero train wreck, which killed 21 people, injured more than 30 others and made headlines all around the country, remains one of the deadliest rail accidents in state history. It was one of a series of disasters in Colorado and across the country that added up to a crisis of railroad safety around the turn of the 20th century, as traffic on the rails continued to rise in the absence of accurate timekeeping, reliable equipment and adequate signaling systems.

Public outcry over such wrecks helped lead to the establishment of the Colorado State Railroad Commission in 1907. In its second biennial report to the state Legislature, issued in the wake of the Dotsero wreck, the commission decried “the appalling loss of life and property in collisions” plaguing the state. The mounting death toll was, the commission wrote in a special safety report that year, “due, in part, to the heavy volume of business being done by the roads of this state, and the further fact that many of our mountain roads have long, heavy grades, and not infrequently the air pumps or brakes, for some unaccountable reason, fail to respond at the critical period.”

Overcoming legal challenges brought by railroad companies against its constitutionality, the Railroad Commission led the charge to improve train safety in Colorado. Its work proved successful and popular enough that in 1914 the Legislature expanded the body and renamed it the Public Utilities Commission, granting it the authority to regulate the electric, gas, water and streetcar industries the way it had the railroads.

Technology and regulation have steadily improved rail safety over time, and the American Association of Railroads, an industry lobby group, calls this the safest period in the history of railroading. Industry groups are especially keen to point out data showing that transporting hazardous materials by rail is significantly safer than doing it by truck.

But a recent rise in longer, heavier trains in accordance with an industry practice known as “precision scheduled railroading” has prompted new safety concerns, and critics fault the rail industry for dragging its feet on implementing measures like modern braking systems and higher standards for tank cars. U.S. Transportation Secretary Pete Buttigieg, in a letter to Norfolk Southern following the February train derailment and chemical fire in East Palestine, Ohio, urged an end to “vigorous resistance by your industry to increased safety measures.”

Among the rail industry’s critics, the East Palestine incident and other subsequent derailments have raised fears that the bill could be coming due on decades of corporate consolidation and investor pressure on railroads to cut costs and maximize profits. Such fears were also prevalent a decade ago, when a major increase in the amount of crude oil being shipped by rail resulted in dozens of reported derailments, spills, fires and explosions, leading environmental activists to launch campaigns nationwide against what they labeled “bomb trains.”

Oil-by-rail shipments peaked at an average of over 1 million barrels per day in 2014, according to the U.S. Energy Information Administration, a surge that experts say was never likely to be permanent. A 2014 congressional report explained that the increase occurred after “rapid expansion of oil production … strained the capacity of existing pipelines,” and accurately predicted that the crude shipments by rail would ebb as the “pipeline bottleneck” was eased. By last year, those shipments had fallen to an average of about 268,000 barrels per day.

That makes the Uinta Basin Railway different than many other oil-by-rail projects in the recent past, since there’s no prospect of a conventional oil pipeline replacing it. For however long into the future drillers in eastern Utah are producing large volumes of waxy crude oil, federal regulators expect the railway would direct the vast majority of it through Colorado. At an estimated capacity of up to 315,000 barrels per day — more than was shipped by rail across the entire country in 2022, including imports from Canada — the project would make the Union Pacific route between the Kyune, Utah and Denver the nation’s new oil-by-rail superhighway.

Oil-by-rail shipments from Rocky Mountain states

In a “downline analysis,” the federal Surface Transportation Board predicted that Uinta Basin oil trains could, on average, cause a rail accident between Kyune and Denver once every 13 months. Accidents severe enough to cause a spill of up to 30,000 gallons of crude oil, regulators predict, will occur roughly once every five years.

But a coalition of 10 Colorado city and county governments argued in a legal brief earlier this year that those projections understate the true risk level. They cited federal data and an analysis by the Pipeline and Hazardous Materials Safety Administration that found that trains hauling crude oil tankers are “heavier in total, more challenging to control… (and) more prone to derailments when put in emergency braking.”

“The Board neither disclosed nor analyzed these elevated risk factors, relying instead on apples-to-oranges national averages that are inapplicable to these longer, heavier trains,” wrote the governments in a brief in support of a lawsuit filed by Eagle County and five environmental groups against the STB over its approval of the railway.

From left, Glenwood Springs Mayor Jonathan Godes, state Sen. Dylan Roberts, U.S. Rep. Joe Neguse, U.S. Sen. Michael Bennet and Colorado House Speaker Julie McCluskie participate in a press conference near Interstate 70 at the confluence of Grizzly Creek and the Colorado River to voice opposition to the Uinta Basin Railway project, April 7, 2023. (Chase Woodruff/Colorado Newsline)

Though Bennet and others in Colorado’s congressional delegation have called on the Biden administration to halt the project, some railway opponents want state-level officials to take a more active role in opposing it. So far, opposition from Gov. Jared Polis’ administration has been muted, though the governor, through a spokesperson, has expressed “concerns” about the project.

The state’s Public Utilities Commission may have been established as a railroad watchdog, but today the industry makes up only a small part of its regulatory portfolio. Following federal legislation that abolished the Interstate Commerce Commission in 1995, “the PUC doesn’t have as much authority as it did previously,” an agency spokesperson wrote in an email. The agency denied repeated interview requests with state rail safety officials, citing a lack of “media training” among staff.

In the mid-2010s, state and local opposition in the Pacific Northwest successfully blocked a series of proposals that would have dramatically increased oil-by-rail shipments to West Coast refineries. The largest of those projects, a proposed rail terminal in Vancouver, Washington, would have generated roughly the same amount of oil-train traffic as the Uinta Basin Railway, but it was abandoned in 2018.

“We fortunately were able to defeat those, because the environmental and human health risks are just too great,” said Kristen Boyles, a Seattle-based attorney with environmental group Earthjustice who worked to defeat the projects. “Which is why it’s so frustrating to have had that history, and to have had that public outcry about the danger these oil trains pose, and have that sort of die down a little bit — and then, nope, it pops up again with the train in Utah.”

‘Undesired emergency’

As trains bound for Denver approach Gore Canyon from the southwest, Amtrak conductors point out another favorite landmark: the wreckage of several cars strewn about the steep rocky slope across the river. They tumbled hundreds of feet down from the cliffside road overhead decades ago, and recovery of them is too dangerous.

Around the next bend, the wreckage disappears, and so does the road. For the next four miles, the Union Pacific railroad travels along the river alone.

On a snowy night in November 2014, a westbound Union Pacific freight train had made it roughly halfway through this remote stretch when it “had rocks fall into train,” according to the brief accident report filed later. Though only one car in the half-empty train jumped the tracks, the derailment and track damage closed the route for days.

It was the sixth train accident in Gore Canyon in the previous 16 years, according to safety records from the Federal Railroad Administration. The lead locomotive hauling a 99-car eastbound train derailed in November 1998 due to a “rock slide in face of train.” Another rock slide near one of the canyon’s tunnels derailed nine cars in 2005. The accident report filed after a six-car March 2000 derailment there simply states that the train “went into undesired emergency.”

Railroad tracks through Gore Canyon southwest of Kremmling on June 12, 2023. (Chase Woodruff/Colorado Newsline)

Perhaps more than any other scenario, opponents of the Uinta Basin Railway are haunted by the thought of what could happen if an oil-train accident occurs in one of these remote mountain canyons.

“These are very difficult places to access quickly, which makes cleaning up a spill more dangerous,” said Kirk Klancke, president of the Colorado River Headwaters Chapter of anglers’ conservation group Trout Unlimited. “The biggest threat in a spill in any of these canyons besides access is going to be the fact that it’s not just oil, which has a lot of cleanup procedures, it’s waxy crude.”

The Uinta Basin’s oil is known as “waxy” crude because of its high degree of paraffin wax, which gives it the consistency of shoe polish at room temperature. It comes out of the ground at higher temperatures and is typically stored in heated tanks before being transported.

In recent months, the railway’s proponents have accused critics of spreading “misinformation” about spill risks, claiming that the waxy crude would be transported “as a solid, not a liquid,” lowering the likelihood that large volumes could be spilled in the event of a derailment.

But in an interview, Keith Heaton, director of the Seven County Infrastructure Coalition, the public entity that has led the Uinta Basin Railway’s development to date, acknowledged that the project can’t guarantee that will always be the case.

“I don’t know that I’m guaranteeing anything,” Heaton said. “Our responsibility has been the planning and the permitting … I am not the expert on railroads, or petroleum, or any of those things.”

A coal train travels along the Colorado River north of Gypsum in Eagle County on June 12, 2023. (Chase Woodruff/Colorado Newsline)

Relatively small amounts of the Uinta Basin’s waxy crude are currently being transported by tanker trucks to one of several rail terminals along the existing Union Pacific railroad in central Utah, then shipped by rail out of state. These shipments began in 2013 using “coil-heated and insulated tank cars,” according to the Utah Geological Survey. More recently, other Uinta Basin producers have shipped waxy crude in non-heated tank cars, allowing their contents to gradually solidify in transit before being reheated at their destination.

If the railway is built, whether or not Uinta Basin tank cars are heated and insulated will be up to the producers, rail operators and refineries that purchase the oil. No law or regulation would tie their hands, and the railway project’s 3,600-page environmental impact statement doesn’t address the issue at all.

“The economics of what happens with this after that is really up to the private side of the entity, and there’s a number of different entities involved in all of this, as there is with any industry or business,” Heaton said. “But yeah, we don’t have anything that addresses that in any way, shape or form.”

Even in cases where the oil is being shipped in non-insulated tank cars, outdoor temperatures will be a major factor. Heaton said that according to the SCIC’s industry partners, the waxy crude loaded into a tank car can — “depending on ambient temperatures” — cool to below its 110-degree melting point in about five hours.

Communities along the downline route have sought more clarity from railway proponents on a number of issues relating to the waxy crude’s transport, especially when it comes to how long it would take the 30,000 gallons of oil in each tank car to cool to a solid in the summertime heat.

“For us to feel some sort of assurance, just on that specific point … there ought to be scientific data and understanding of what that is,” Scherr said. “And that is only one of all the environmental risks that we’re concerned about.”

In the absence of any detailed answers, railway opponents are deeply skeptical of claims that the oil would quickly solidify.

“It’s a very convenient thing for them to say it’s going to be solid, but that’s not what the facts show,” said Deeda Seed, the Center for Biological Diversity’s senior Utah campaigner.

“It is going to remain liquid for some period of time, it’s not clear when or if it even becomes fully solid again,” she added. “It could very well be the case that this stuff is very liquid all the way through the Colorado River Corridor.”

Scary stuff’

After passing through the town of Kremmling and tiny, unincorporated Parshall, eastbound trains enter Byers Canyon in the Hot Sulphur State Wildlife Area, described by conservationists with the Colorado Birding Trail as prime nesting habitat for Swainson’s thrush, Wilson’s warbler, and the red-naped sapsucker.

Though no official statistics are kept, railroad enthusiasts identify Byers Canyon as the site of one of the sharpest “mainline” railroad curves in the country.

Like most other high-country canyons, it’s also been the site of multiple train wrecks, including a 22-car derailment in 1982 deemed to have been caused by excessive speeds of nearly 60 miles per hour. Klancke, who’s lived in Grand County for 52 years, remembers the aftermath.

“I saw train cars down a 200-foot embankment into the river,” he said. Two other train accidents have occurred in Byers Canyon since then, including a four-car derailment in 2005 caused by rockfall on the track.

Railroad tracks along the Colorado River in Byers Canyon on June 11, 2023. (Chase Woodruff/Colorado Newsline)

In addition to predicting a spill of up to 30,000 gallons once every five years, the STB’s environmental impact statement evaluated other scenarios, including fires and explosions, that are less likely but still a potential risk.

“If the force of the accident were sufficient to ignite the crude oil, a fire could result that could remain confined to a single car or could surround other cars and cause them to rupture,” regulators said. “A fire that surrounds other cars could, in turn, cause a larger fire.”

Even if the waxy crude had solidified in transit, opponents note, a fire that ruptured one or more tank cars would heat it back up to a liquid state. If spilled and dispersed into the river, it would cool to a solid again — but the railway’s backers and their environmentalist foes have stark disagreements over what the cleanup process would look like from there.

In an op-ed earlier this month in the Deseret News, Heaton and Mark Michel of Drexel Hamilton Infrastructure Partners, the project’s private-equity developer, wrote flatly that waxy crude “does not present an environmental concern if there were a derailment.” In interviews, Heaton has repeatedly likened a spill of waxy crude to a spill of candles.

“It is like if you dropped a box of birthday candles in the kitchen sink,” he told Deseret News. “You just pick them up.”

Ted Zukoski, an attorney with the Center for Biological Diversity, ridiculed that comparison.

“It’s just like picking up candles, if candles had warning labels on them that say they may cause organ failure and cancer, like the hazardous materials sheets for the two types of waxy crude they have in the Basin do,” Zukoski said. “It’s scary stuff.”

Left: Waxy crude oil spilled into Utah’s Price River after a tanker truck crash in July 2018. Right: Waxy crude spilled into Provo Canyon in November 2015. (Utah Department of Environmental Quality, U.S. Environmental Protection Agency)

To date, reported spills of Utah’s waxy crude have largely been limited to tanker-truck crashes that released relatively small amounts of oil. But even those incidents complicate railway proponents’ characterization of the oil as easy to clean up.

In 2018, a truck hauling heated waxy crude from the Uinta Basin overturned on a bridge over the Price River near Carbonville, Utah, spilling roughly 4,000 gallons. Although fewer than 1,000 gallons were estimated to have spilled into the river itself, the crude oil “formed quarter-size to fist-sized waxy globules scattered along (a) three-mile stretch of river from the crash site,” Utah’s Department of Environmental Quality reported. A series of flash floods in the days after the crash knocked out containment booms and sent the oil even farther downstream, with “significant contamination” ending five miles from the crash, the DEQ said.

A train accident on the Colorado River could spill far more oil — a single rail tank car has a capacity of 30,000 gallons — into a river that runs much higher and faster. Data from the U.S. Geological Survey shows that flash flooding in the week after the 2018 truck crash pushed the Price River’s flow to a high of 82.8 cubic feet per second. The median flow rate of the Colorado River near Gore Canyon is more than 20 times higher; at the east end of Glenwood Canyon, the median rate is nearly 75 times higher.

“Even if (the waxy crude) is some form of a solid, the river doesn’t care,” said Godes. “The river — it breaks granite boulders apart. It’s going to be able to break this down, break it apart and threaten the water supply for 40 million Americans.”

Anglers float down Glenwood Canyon near Grizzly Creek on April 7, 2023. (Chase Woodruff/Colorado Newsline)

Exactly what impacts a major spill of hydrocarbons could have on the Colorado River is a question of vital importance to many of the communities that rely on it — but it’s another issue that the Surface Transportation Board’s environmental impact statement didn’t address at all.

In their downline analysis, STB regulators focused narrowly on the increased traffic and accident rates on the existing Union Pacific route. The majority of the potential environmental impacts their report examined — including water contamination, wildfire ignition, habitat degradation and much more — were only assessed along the 88 miles of new railroad proposed in Utah, excluding the hundreds of miles of existing track in Colorado that the vast majority of the oil-train traffic would travel.

That lack of analysis lies at the heart of the lawsuit that Eagle County filed against the STB last year, arguing that the board’s approval of the railway in December 2021 violated federal laws like the National Environmental Policy Act.

“The Board arbitrarily omitted the Union Pacific Line from its analysis of the Railway’s impacts to water resources, biological resources, historic and cultural resources, and land use and recreation,” the county’s attorneys wrote in a brief earlier this year. “It failed to provide any reasonable basis for analyzing the Railway’s operations on the proposed line but not on the Union Pacific Line.”

In their environmental review, STB regulators wrote dryly that oil-train accidents “could result in several different outcomes and associated consequences, depending on the force of the collision or derailment, the location of the accident, and the number of train cars involved.” Minor accidents, they said, would be much more likely than major catastrophes.

In the event of a disaster, however unlikely, the report offers little analysis of what might happen next — an omission that has left communities along the downline route scrambling to study past oil spills, assess the potential threat to water quality, develop emergency-response plans and seek assurances that cleanup and recovery costs would be covered. For towns and businesses that are dependent on healthy river ecosystems, such questions, though barely a footnote in the STB’s analysis, could be existential.

“How can you calculate truly the potential damages that could occur if you have a multi-car derailment in Glenwood Canyon?” asked Godes. “That would not only possibly devastate Glenwood’s economy for several years, and compromising drinking (water) and recreation facilities up and down the river — and that’s just in the immediate area, let alone the downstream impact to Grand Junction, and the Ute Water (Conservancy) District, and Moab, and even farther down.”

2023 #COleg: #Colorado Department of Natural Resources Director Appoints Colorado Produced Water Consortium Governing Body

Click the link to read the release on the Colorado Department of Natural Resources website:

Wednesday, June 21, 2023

Denver – Colorado Department of Natural Resources Executive Director Dan Gibbs announced the appointment of the Governing Body of the Colorado Produced Water Consortium. The Consortium was created by the Colorado General Assembly to help reduce the consumption of freshwater within oil and gas operations.

The Governing Body members are; John Messner, Commissioner, Colorado Energy and Carbon Management Commission (formerly Colorado Oil and Gas Conservation Commission); Tracy Kosloff, Deputy State Engineer, Division of Water Resources; and Trisha Oeth, Director of Environmental Health and Protection, Colorado Department of Public Health and Environment.

“I am honored to appoint these dedicated public servants to lead the Colorado Produced Water Consortium, said Dan Gibbs, Executive Director, Colorado Department of Natural Resources. “John, Tracy, and Trisha bring years of experience and a wealth of expertise to this role to reduce the use of freshwater and increase the recycling of produced water in oil and gas operations.”

The Colorado Produced Water Consortium (Consortium) was established in the Department of Natural Resources by HB23-1242 to help reduce the consumption of freshwater within oil and gas operations. The Consortium’s responsibilities also include making recommendations towards developing an informed path for reuse and recycling of produced water inside and potentially outside of oil and gas operations within the state, measures to address barriers associated with the utilization of produced water and research to evaluate analytical and toxicological methods employed during produced water treatment. 

The Consortium will be made up of 31 members representing state and federal agencies, research institutions, environmental groups, industry, local governments, environmental justice groups, and disproportionately impacted communities. The Governing Body will appoint 22 members and the leadership of the Colorado General Assembly will appoint 6 members. If members of the public are interested in serving on the Consortium, please click on this link to fill out an application

The Consortium will begin meeting summer 2023.  To receive notices or find out about upcoming meetings see the Consortium’s webpage

#Colorado takes first step to hold #CommerceCity refinery accountable for pollution: Colorado’s health department has issued a compliance advisory against Suncor — in what has become a familiar pattern — 9News.com

Denver, Colorado, USA – January 12, 2013: The Suncor Energy refinery in Denver, Colorado. Based in Calgary, Alberta, Suncor Energy is a Canadian oil and gas company with revenues of over 35 Billion Canadian Dollars. Photo credit: City of Boulder

Click the link to read the article on the 9News.com website (Cole Sullivan). Here’s an excerpt:

The Colorado Department of Public Health and Environment called the June 1 “compliance advisory” the first step in its enforcement process to hold the company accountable.  It details more than 100 alleged violations that occurred at the state’s only oil refinery from July 2021 to June 2022.  State regulators will meet with Suncor to discuss the issues and require fixes before determining if penalties should be levied against the company.  A Suncor spokesperson said the company self-reported the violations and is working with CDPHE to resolve the compliance advisory.

“The enforcement process can create meaningful, positive changes and outcomes,” a CDPHE spokesperson told 9NEWS. “For example, the division’s historic $9 million settlement announced in March 2020 resolved an enforcement action with Suncor.”

[…]

The compliance actions have become an annual routine for the company, with records from the state indicating orders and advisories every year since 2013.

“It hasn’t proven to help,” said Ean Thomas Tafoya, who directs the Colorado chapter of environmental justice group GreenLatinos. “They’ve had one of the largest [fines] in the state’s history and yet they continue to have violations and more issues at this facility.”

Final Report: Practical #PFAS Treatment with Sawdust — Environmental Protection Agency

PFAS contamination in the U.S. October 18, 2021 via ewg.org.

Click the link to access the report on the EPA website:

Objective:

This project aims to develop a new functionalized sawdust anion exchange resin for PFAS removal and to develop new cost-effective treatment processes using functionalized sawdust (FS). The hypothesis of this research is that cellulose-based sawdust can be functionalized into anion exchange resin, which can remove negatively charged PFAS in drinking water. This research will improve water management practices, and technical methods to minimize the PFAS risks to human, ecosystem and the environment. The specific research objectives of the proposed work are to: 1) Functionalize sawdust into biomass-based anion exchange resin; 2) Determine PFOA and PFOS removal from drinking water using functionalized sawdust column tests. The first objective helps students to understand the natural biomass (sawdust) from planet can be used for cleaning drinking water, which is related to people’s health. The second objective helps student to understand how much of PFAS existing in tap water, which is related to the polymer production from industries. This will help students to recognize the critical balance between prosperity of industry and protection of human health and the ecosystem. This project enables the student team to identify the community issues in our drinking water system. Undergraduate students will be trained in the area of sustainability, analytical chemistry, process design and environmental protection.

Summary/Accomplishments (Outputs/Outcomes):

In this Phase I project, functionalized sawdust has been chemically synthesized with epichlorohydrin and dimethylamine and characterized by Fourier transform infrared spectroscopy. The kinetic and isothermal adsorption experiments with FS have been performed and samples have been collected for liquid chromatography coupled to quadrupole time-of-flight mass spectrometry (LC-QToF) analysis. It has been observed that the functionalized sawdust can remove 93% of PFOA and 84% of PFOS in batch process. For the adsorption kinetics, the adsorption sorption rate constant of PFOA and PFOS is 0.1739 g/mg/h and 0.1022 g/mg/h respectively. The initial adsorption rate of PFOA and PFOS is 15.12 mg/g/h and 7.25 mg/g/h, respectively. The results suggested that the adsorption of PFOA and PFOS on FS was very fast and majority of adsorption can be completed within 2 h. The results have been summarized in the 2020 Progress Report.

Adsorption isotherm is critical to evaluate the sorption capacity of adsorbents as well as understand the PFAS and FS interactions. For the adsorption isotherm, series concentrations (ranging from 5-250 mg/L) of PFOA and PFOS solutions were absorbed with 0.2 g FS, respectively. The bottles were maintained on the shaker (200 rpm) for 120 h. The residual concentration of PFAS compounds have been quantified by LC-QToF analysis. As showed in Fig. 1, two commonly used models, the Langmuir and Freundlich were adopted to describe the experimental data and assess the adsorption behavior of the PFAS on each media. The adsorption isotherms show that the FS possesses high adsorption capacity 209.26 mg/g for PFOA and 161.80 mg/g for PFOS according to the Langmuir fitting (Table 1). The Langmuir adsorption model is based on the assumption of a structurally homogeneous adsorbent, monolayer adsorption and equivalent adsorption sites. The Freundlich model assumes adsorption on a heterogeneous surface. A good fit with the Langmuir model indicated monolayer adsorption of PFAS on the FS. The adsorption isotherm results in this study suggested that the synthesized FS showed high adsorption capacity for PFOA and PFOS removal…

Conclusions:

Our goal for the Phase I project is to develop a new functionalized sawdust anion exchange resin for PFAS (especially PFOA and PFOS) removal and to develop new cost-effective treatment processes using FS. To achieve this goal, the commercial sawdust has been functionalized by reaction with epichlorohydrin and dimethylamine. FTIR was used to characterize the functional groups changes along with the functionalization reactions. It can be observed that functional groups (such as hydroxyl group) have been significantly changed after functionalization, which indicated the occurrence of functionalization reactions. To assess the efficiency of FS in PFAS removal, we also adsorption kinetic and adsorption isotherm of PFOA and PFOS in batch process.  Based on the adsorption kinetics, we found that adsorption of PFOA and PFOS on FS was very fast and majority of adsorption can be completed within 2 h in batch condition. Based on Langmuir and Freundlich model, we also determine adsorption isotherms to assess the adsorption behavior of the PFAS on each media. The result suggested that the synthesized FS showed high removal efficiency and high adsorption capacity for PFOA and PFOS removal according to the Langmuir fitting. Through this study, we believe that we have successfully synthesized sawdust-based anion exchange resin, which possessed high adsorption capacity of PFOA and PFOS removal from water system. We recommend that more PFAS compounds should be tested with this new developed technology and a techno-economic analysis is needed to assess the cost of advantages of FS for PFAS removal.  

U.S. Supreme Court imperils arroyos, wetlands — @Land_Desk #WOTUS

Comb Wash and tributaries in southeastern Utah, all of which are undeserving of Clean Water Act protection according to the majority of Supreme Court justices. Jonathan P. Thompson photo.

Click the link to read the article on The Land Desk website (Jonathan P. Thompson):

THE NEWS: The U.S. Supreme Court hands down a ruling in the long-running Sackett v. Environmental Protection Agency case that significantly alters and narrows the scope of the Clean Water Act

THE CONTEXT: Sometimes it feels like the Supreme Court doesn’t like — or maybe just doesn’t get — the arid Western U.S. Last week’s ruling is a prime example: It potentially removes federal protections from thousands of miles of Western waterways, making it far easier for developers to pollute or destroy arroyos, wetlands and ephemeral streams. 

The specific case dates back to 2007, when EPA officials ordered Chantell and Michael Sackett to stop backfilling their soggy half-acre lot on the shores of Idaho’s Priest Lake, where they wanted to build a cabin. The EPA had determined that since the wetlands were adjacent to a navigable, interstate water (Priest Lake), it could be classified as “waters of the United States,” or WOTUS, and was therefore protected by the Clean Water Act. The Sacketts disagreed and took the feds to court. As the case wound its way through the legal system, the Sacketts’ cabin site transformed into the front line of a 50-year ideological battle over the definition of what constitutes legally decreed “waters.”

For years, the Environmental Protection Agency and Army Corps of Engineers—the agencies charged with enforcing the CWA—considered WOTUS to include everything from arroyos to prairie potholes to sloughs to mudflats, so long as the destruction or degradation thereof might ultimately affect traditionally navigable waters or interstate commerce (which could include recreation, sightseeing, or wildlife watching). It was a broad definition that gave the agencies latitude to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” as Congress mandated when creating the law in 1972.

Property rights ideologues pushed back on the definition, saying it was too broad and therefore gave the feds too much power to curb pollution or restrict development. Occasionally a developer would use this rationale to flout the rules, and a few of the cases made their way to the Supreme Court. In the 1985 Bayview case, the justices upheld the broad definition of WOTUS, and in the 2001 SWANCC case they left the definition alone but found that isolated ponds were not protected by the Clean Water Act simply because they were migratory bird habitat. 

Then, in his plurality opinion on the 2006 Rapanos case, the late Justice Antonin Scalia wrote what would become the right-wing’s preferred definition of waters of the U.S. He argued that they should include only “relatively permanent, standing or continuously flowing bodies of water … described in ordinary parlance as streams[,] . . . oceans, rivers, [and] lakes.” Scalia’s definition emphatically excluded “ephemeral streams” and “dry arroyos in the middle of the desert.” (He also referred to the “immense arid wastelands” of the Western U.S., giving an idea of where this guy’s coming from.)

Justice Scalia’s opinion in the Rapanos case, and now Alito’s in the Sackett decision, would remove most or all intermittent or ephemeral streams from Clean Water Act protections. That would leave 94% of Arizona’s streams more vulnerable to development. Source: U.S. EPA.

Justice Anthony Kennedy disputed Scalia, saying instead the CWA should extend to any stream or body of water with a “significant nexus” to navigable waters, determined by a wetland’s or waterway’s status as an “integral part of the aquatic environment.” 

The two conflicting Rapanos opinions have guided the agencies’ enforcement of the CWA ever since, with the George W. Bush and Trump administrations leaning toward Scalia’s narrow, anti-arroyo definition, and the Obama and Biden administrations adopting Kennedy’s “significant nexus” test. 

Fast forward to the recent Sackett decision, which has two parts. First, the justices all agreed that the EPA should not have fined the Sacketts for filling in their wetland, because it does not fall under the Clean Water Act’s jurisdiction. But the wider ramifications come from Justice Samuel Alito’s rewriting of the definition of “waters of the U.S.” in his majority opinion — and the debate among justices it sparked. 

Sackett overtly focuses on wetlands, as did most of the back-and-forth between the disagreeing justices, who sparred over the definition of “adjacent.” Alito and the majority essentially believe “adjacent” and “adjoining” are synonymous, which removes any wetland lacking a continuous surface connection to a navigable body of water from federal jurisdiction. He also puts the kibosh on the “significant nexus” test. (Justices Clarence Thomas and Neil Gorsuch go even further, trying to reduce waters of the U.S. to rivers or lakes that can actually be navigated by ships.) Even Justice Brett Kavanaugh disagreed with Alito’s narrow definition, pointing out that “adjacent” is not the same as “adjoining.”

You might be wondering how any of this effects the arid West, where wetlands — either adjacent or adjoining — aren’t all that common. After all, intermittent streams only got passing mentions in the opinions and not once does the term “arroyo” appear. But there’s little question that arroyos and ephemeral streams will end up suffering collateral damage. The Sackett majority defers to Scalia’s Rapanos definition, writing: “ … we conclude that the Rapanos plurality was correct: the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams oceans, rivers and lakes.’”

So, yeah, we Southwesterners do refer in our ordinary parlance to many an intermittent stream as a “river,” e.g. the Santa Fe River, the Santa Cruz River, the Rio Puerco(s), and so forth. But I doubt that would have been adequate for Scalia and now for Alito and friends. 

It’s not clear yet how all of this will play out on the ground, except that the Sacketts can finally build their cabin without fear of an EPA fine. The Clean Water Act, one of the nation’s most important environmental laws, is now weaker than it was a couple of weeks ago, and countless wetlands, sloughs, arroyos and ponds are now more vulnerable to development and pollution. Justice Elena Kagan summed it up in her response to Alito: “The majority thus alters—more precisely, narrows the scope of—the statute Congress drafted,” she wrote, adding that the opinion “ … is an effort to cabin the anti-pollution actions Congress thought appropriate.”

Steve Bannon, former President Donald Trump’s right-hand man, once said the goal of the administration was the “deconstruction of the administrative state. He wanted to eviscerate regulations protecting human health and the environment so they would no longer “burden” corporations or stand in their way of reaping boundless profit. Trump may no longer be president, and both he and Bannon may be headed to jail soon. But their agenda lives on among the majority of the nation’s highest court, which, Kagan wrote, has appointed “itself as the national decision-maker on environmental policy.”

She continued, referring to last year’s decision that hindered the EPA from enforcing clean air laws: “So I’ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. ‘[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.’ Because that is not how I think our Government should work — more, because it is not how the Constitution thinks our Government should work …”

Read more of my writing on Sackett, WOTUS, Rapanos, and SCOTUS in High Country News at the Landline and in the Land Desk:

#ColoradoRiver #Drought Crisis is Fostering a More Collaborative U.S.- #Mexico Relationship — Time Magazine #COriver #aridification

Colorado River Dry Delta, terminus of the Colorado River in the Sonoran Desert of Baja California and Sonora, Mexico, ending about 5 miles north of the Sea of Cortez (Gulf of California). Date: 12 January 2009. Photographer: Pete McBride, U.S. Geological Survey

Click the link to read the article on the Time Magazine website (Anisha Koli). Here’s an excerpt:

…in recent years, the countries’ relationship, when it comes to the river at least, has entered a new era of agreement and mutual advancement, as both countries face unprecedented drought and a need to revamp water systems.

“On earlier occasions, what I’ve seen is two countries that had a bilateral water management agreement where the gains from one country would equal the losses of the other country,” Carlos de la Parra, who leads Restauremos El Colorado, an environmental nonprofit, tells TIME. “They’ve migrated into a regional approach, realizing that it’s the same river, it’s the same basin and investments on one side of the border will benefit both sides of the border.”

Under a 1944 treaty established between the U.S. and Mexican governments, Mexico was allotted a guaranteed annual quantity of water. The agreement had flaws though. It didn’t mention water quality, and in the 1960s when the river’s salinity rose dramatically, the water directed to Mexico was too salty for human consumption or agriculture. Following farmer protests and threats from the Mexican government to take the dispute to the International Court of Justice, the U.S. agreed to an updated treaty in 1973 that ensured equal water quality. Most recently in 2017, the two governments revisited the negotiating table to strike Minute 323, a nine-year deal that set standards for how water should be allocated during surpluses and reduced during droughts. It also committed both countries to pledge resources and funding for environmental restoration. John Shepard, senior advisor at the Sonoran Institute, a non-profit that advocates for Colorado River restoration, notes that a new deal could be on the horizon. “If the lower basins agreed to cuts as they’re being articulated in this agreement, then Mexico will likely agree to a proportional share of cuts.”

[…]

Keeping the river and its ecosystems healthy has been a source of argument over the years. In the U.S. the prevailing view has been that it’s Mexico’s responsibility to protect and restore the delta because it’s chiefly located in Mexico, where it then flows into the Gulf of California. Mexico has argued that the U.S. should take responsibility because the country’s management and control of the river caused poor water quality and decimated habitats. Now, experts on both sides of the border are working to find a more collaborative way forward.

“There’s a saying that, ‘a crisis is a terrible thing to waste.’ In many ways, that’s how I’m approaching this,” De la Parra says. “Many people like myself are hard at work, thinking about how we can capitalize the crisis and move the irrigation district and other water uses into a more productive, more sustainable model.”

Map of the Colorado River drainage basin, created using USGS data. By Shannon1 Creative Commons Attribution-Share Alike 4.0

#NewMexico environmental agency bracing for #water law changes — Source NM #WOTUS

A diversion on the Mimbres River in southern New Mexico pictured on Feb. 21, 2023. Environmental advocates are concerned that intermittent and seasonal rivers and many wetlands protections will be rolled back across the country as the result of a U.S. Supreme Court water decision on May 25, 2023. (Photo by Megan Gleason / Source NM)

Click the link to read the article on the Source NM website (Danielle Prokop):

After landmark SCOTUS ruling limits what waters federal agencies protect under Clean Water Act, advocates concerned that NM is vulnerable.

A U.S. Supreme Court ruling changed water law overnight last week – and the impacts will ripple through New Mexico over coming months.

New Mexico’s complicated water landscape, coupled with the fact it’s one of three states that does not have a state agency regulate pollution in surface water, leaves it uniquely vulnerable, officials for the New Mexico Environment Department said.

The case

In their 9-0 decision in a case called Sackett vs. EPA the court ruled the federal government overreached in the case of Idaho couple Chantell and Michael Sackett. The court said the wetlands on their property were not classified as “waters of the United States,” and multiple rounds of permitting in order to infill and build a house on that land.

“Waters of the United States,” legal designation for the waters protected in 1972 Clean Water Act, which allows the federal government to limit pollutants such as livestock waste and industrial discharge and construction runoff.

The opinion limits the definition of what wetlands would be protected alongside “navigable waters,” defined in other cases as “relatively permanent, standing or continuously flowing bodies” – likes streams, oceans rivers and lakes.

“These wetlands must qualify as “waters of the United States” in their own right,” Justice Samuel Alito wrote for the majority opinion. “In other words, they must be indistinguishably part of a body of water that itself constitutes “waters” under the [Clean Water Act].”

While all the justices concurred with the judgment –  to send the case back to lower courts for further proceedings in the Sacketts’ favor – Justice Brett Kavanaugh, joined by four other justices disagreed with the majority narrowing the definition from “adjacent” wetlands to “adjoining” wetlands.

New Mexico’s vulnerabilities

That distinction leaves New Mexico – and other parts of the arid Southwest – high and dry, said Tannis Fox, an environmental attorney for conservation nonprofit Western Environmental Law Center.

Fox said the rules limiting how much and what type of pollution from wastewater plants, construction sites and agriculture will still protect the state’s largest rivers but can’t say the same for tributaries.

“There are waters, same with wetlands within the entirety of a watershed, that are now at risk of not being protected under the Clean Water Act,” she said. “If there were a point source discharge into that body of water, you may not have to get a permit.”

The New Mexico Environment Department estimated that 93% of New Mexico’s streams and rivers are intermittent – seasonal rivers for example – or ephemeral – only running when there’s heavy rain, in a comment to the EPA in 2019.

These include “localized monsoonal downpours, ephemeral arroyos, cienegas, effluent-dependent streams, playa lakes, and other man-made reservoirs, waterways,” and canals.

The oxbow, a horseshoe curve of the river that has transformed over time into a marsh, as seen from the San Antonio Bluffs on Albuquerque’s Westside. Consecutive years of drought dried parts of the marshland that are crucial habitats for birds, beavers and other animals. (Photo by Diana Cervantes for Source NM)

Fox said this raises the question for existing permits on pollution, and future permitting landscape. The U.S. Environmental Protection Agency directly administers pollution programs for New Mexico, Massachusetts and New Hampshire.

Currently, the agency reviews EPA permit applications, and “certifies” them based on if they meet state water quality standards.

Environment Protection Agency Region 6 officials – which oversees New Mexico, Texas, Oklahoma Arkansas and Louisiana – declined an interview or comment.

In a written statement, EPA Administrator Michael Regan, said he was disappointed by the decision, saying it “erodes longstanding clean water protections.” He said the agency will review the decision, “and consider next steps,” but did not elaborate further.

Fox said New Mexico’s broad definition of waters of the state enshrined in the state’s constitution offers some protection beyond the federal definition, but it’s hard to enforce without a state permitting program.

“The immediacy of the need for a surface water program dramatically changed between today and yesterday,” Fox said.

Where is the state in getting a permitting program?

Since the court limited the federal scope, state officials said they anticipate more litigation to determine which waters will be protected, slowing down efforts to develop its own permitting program.

New Mexico Environment Department Secretary James Kenney said the science, technical and legal staff may have their hands full if permits are terminated prematurely.

“Because we may very well disagree that while not a “water of the U.S.,” we still have waters of the state to protect,” he said.

Kenney said the agency plans to bring rules for the program by December 2025, based on current funding and staff.

There’s several layers of red tape to get there, though.

The agency has to draft a resolution to be passed by the state legislature, seek input from New Mexicans and tribes, bring rules to it’s pollution authority board for passage, and get EPA approval after the statute passes.

Currently, the agency is funded for outreach in 2023.

Kenney said the ruling should be a “wake-up call” for lawmakers.

“Right now, we have $680,000 and a special appropriation to carry us through fiscal year 24. Maybe, maybe that increases so that we can get something done sooner,” he said, adding that there would probably be a presentation during the interim session.

As far back as 2019, the agency has testified that if the Clean Water Act no longer applies, more strict state and federal laws governing hazardous waste may apply. Kenney said he understands that for permit holders, this is a “nonstarter,” as hazardous waste laws have more restrictions and culpability.

Kenney warned that individuals and entities should think twice before petitioning to remove the permit and failing to include the state agency in that discussion.

“I will have no sympathy with respect to what transpires as a result of that, whether that’s protracted litigation, or robust enforcement for failing to include us in that discussion,” he said.

Vail installs Gutter Bins to stop 27.8 tons of pollution from reaching Gore Creek each year — The #Vail Daily

Photo credit: Frog Creek Partners

Click the link to read the article on the Vail Daily website (Ali Longwell). Here’s an excerpt:

Supported by a Colorado Department of Health and Environment Grant, Frog Creek Partners installed 278 new Gutter Bins throughout town

Last week, a crew from Frog Creek Partners traveled throughout Vail to install Gutter Bin stormwater filtration systems across a quarter of the town’s stormwater drains to capture debris and pollution before it reaches Gore Creek. Each year, these 278 Gutter Bins will stop approximately 27.8 tons (or 55,600 pounds) of pollution from reaching Gore Creek, according to Brian Deurloo, Frog Creek’s president and founder. Vail has a total of 1,100 stormwater inlets — the open grates in the street — that flow to about 550 outfalls in Gore Creek. These open grates are different from sanitary sewers, which take water from items like sinks, toilets and washing machines through a wastewater treatment process before being discharged to the creek…

What this equates to is “a lot of opportunities for pollution to be introduced into Gore Creek through our stormwater system,” said Pete Wadden, the town’s watershed health specialist.

This pollution comes both directly from people dumping things into the stormwater drains or indirectly from the pollutants that run off the roadways, Wadden said. The latter include road salt, sand, cinders, dust from brakes, leaked oil from cars, and more…

…for many years, the town has been seeking cheaper alternatives to capture pollutants. In 2018, Vail discovered Frog Creek Partners’ Gutter Bins and installed several at the public works site and at Stephens Park…

“We’ve been really happy with how they’ve performed. They’re capturing something like 40 to 80 pounds of sediment and trash every six months when we go out and empty them,” Wadden said.

Credit: Frog Creek Partners

Paper: The Devil they Knew:Chemical Documents Analysis of IndustryInfluence on #PFAS Science — Annals of Global Health

Credit: Gaber et al. Annals of Global Health

Click the link to read the paper on the Annals of Global Health website (Nadia Gaber, Lisa Bero, and Tracey J. Woodruff). Here’s the abstract:

Background: Per-and polyfluoroalkyl substances (PFAS) are a class of widely-used chemicals that persist in the environment and bioaccumulate in humans and animals, becoming an increasing cause for global concern. While PFAS have been commercially produced since the 1940s, their toxicity was not publicly established until the late 1990s. The objective of this paper is to evaluate industry documents on PFAS and compare them to the public health literature in order to understand this consequential delay.

Methods: We reviewed a collection of previously secret industry documents archived at the UCSF Chemical Industry Documents Library, examining whether and how strategies of corporate manipulation of science were used by manufacturers of PFAS. Using well established methods of document analysis, we developed deductive codes to assess industry influence on the conduct and publication of research. We also conducted a literature review using standard search strategies to establish when scientific information on the health effects of PFAS became public.

Results: Our review of industry documents shows that companies knew PFAS was “highly toxic when inhaled and moderately toxic when ingested” by 1970, forty years before the public health community. Further, the industry used several strategies that have been shown common to tobacco, pharmaceutical and other industries to influence science and regulation – most notably, suppressing unfavorable research and distorting public discourse. We did not find evidence in this archive of funding favorable research or targeted dissemination of those results.

Conclusions: The lack of transparency in industry-driven research on industrial chemicals has significant legal, political and public health consequences. Industry strategies to suppress scientific research findings or early warnings about the hazards of industrial chemicals can be analyzed and exposed, in order to guide prevention.

KEY MESSAGES
IMPLICATIONS FOR POLICY MAKERS

  1. This paper analyses how the chemical industry, using industry documents, delayed disclosing the harms of PFAS, costing billions of dollars in health and environmental damages globally.
  2. Many countries are pursuing legal and legislative action to curb PFAS production that may be aided by the timeline of evidence presented here.
  3. The production of chemical toxicity research should be in the best interest of protecting the public’s health, including designing the research question, funding studies, and publishing favorable and unfavorable findings.
  4. Legal settlements against chemical manufacturers should include documents disclosure in order to ensure transparency and accountability for industries and their products.
  5. Public health and environmental policy makers should move towards precautionary principles of chemical regulation.

IMPLICATIONS FOR THE PUBLIC

This paper examines previously secret documents held by DuPont and 3M, the largest manufacturers of PFAS, also called “forever chemicals.” We show how the chemical industry used the tactics of the tobacco industry to delay public awareness of the toxicity of PFAS and, in turn, delayed regulations governing their use. PFAS are now ubiquitous in the population and environment. Consumer awareness can advance calls for safer products by demanding publicly available studies of harm. Public pressure can also influence legislators to pass more health-protective environmental and
chemical regulations.

#NewMexico Governor Lujan Grisham calls out U.S. Supreme Court #WOTUS Decision as ‘devastating’ to New Mexico’s waters — The Carlsbad Current Argus

Birds and water at Bosque de Apache New Mexico November 9, 2022. Photo credit: Abby Burk

Click the link to read the article on the Carlsbad Current Argus website (Adrian Hedden). Here’s an excerpt:

New Mexico’s state leaders criticized the Republican-led U.S. Supreme Court for a recent decision that could limit protections for waterways throughout the arid state. The Supreme Court issued a judgement on May 25 in Sackett vs. the U.S. EPA, ultimately finding the Clean Water Act (CWA) only applied to wetlands that are directly connected to permanent bodies of water…The opinion was written by Justice Samuel Alito, with the other members issuing concurring opinions in the case.

“In sum, we hold that the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that they are ‘indistinguishable’ from those waters,” read Alito’s opinion. “This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”

But New Mexico Gov. Michelle Lujan Grisham contended the decision weakened the Clean Water Act and could put many of New Mexico’s fragmented rivers and streams at risk. In a statement following the verdict, Lujan Grisham said she was “appalled” and contended the ruling would leave 90 percent of New Mexico’s waters without federal protection from development. Lujan Grisham said her administration planned to study how state law could be used to fill any “regulatory gaps” created by the Supreme Court ruling to protect the state’s limited water resources.

The U.S. Supreme Court Just Withdrew Protections from a Huge Portion of the Country’s #Wetlands — Field & Stream

A sunset in Autumn at Priest Lake. By S.hammarlund (talk) – I created this work entirely by myself., Public Domain, https://commons.wikimedia.org/w/index.php?curid=108282741

Click the link to read the article on the Field & Stream website (Travis Hall). Here’s an excerpt:

On May 25, 2023, the Supreme Court of the United States (SCOTUS) issued a ruling that could ultimately rescind federal protections from more than 50 percent of the nation’s wetlands. With its 5-4 ruling in a case known as Sackett v. EPA, SCOTUS declared that the Clean Water Act—a measure long-regarded as the most impactful clean water safeguard ever enacted—no longer applies to isolated wetlands that aren’t visibly connected to larger water bodies by continuous, surface-level flows. According to sportsmen’s groups, the ruling will leave these isolated wetlands unprotected from development, drilling, and other sources of pollution. While the decision will be a boon to the homebuilding and extraction industries, it could have far-reaching and detrimental repercussions for wildlife species that rely on cold, clean water sources—like trout and waterfowl.

“It’s bad news for hunters and anglers,” Alex Funk, Director of Water Resources and Senior Counsel for the Theodore Roosevelt Conservation Partnership (TRCP), tells Field & Stream. “Everything from ducks to cold-water fish species like trout rely on headwater streams and headwater wetlands, like fens, to help maintain water temperatures—those are at risk now.”

[…]

The Clean Water Act’s stated goals were beautifully simple: Make America’s rivers and wetlands “swimmable and fishable” again. For fifty years, throughout the administrations of six different U.S. Presidents, the federal rule worked well. And it reversed some of the country’s most egregious environmental sins. Then, in 2001 and again in 2006, SCOTUS began taking court cases with huge implications for the future of the Clean Water Act. Its rock-solid protections were eroded by unfavorable court decisions, and the clarity that had made the CWA such an effective safeguard for so many years was muddied…

In response to the confusion brought about by these court cases, the Obama-era EPA proposed the so-called Waters of the U.S. Rule—commonly known as WOTUS. This 2015 rule sought to clarify and re-establish lost protections for hundreds of thousands of miles of ephemeral streams and tens of thousands of acres of wetlands. It was widely supported by the vast majority of America’s hunting and angling conservation groups.  But its opponents had immense power in the mining, agribusiness, and development sectors. That lobby’s boisterous campaign to undermine WOTUS was widely successful, and in 2019 President Trump decried the rule as “horrible”, scaling back its protections for ephemeral streams and isolated wetlands once again. Then, when current President Joe Biden took office, his EPA administrator rebuilt WOTUS, restoring its protections to pre-Trump levels. That’s more or less where the rule remained until yesterday…

“The wetlands on the Sackett property are distinguishable from any…waters [that are covered under the CWA],” wrote Justice Samuel Alito, because they aren’t visibly connected to them. Writing for the majority, Alito went on to say that, in order to be eligible for federal protections under the Clean Water Act, a wetland must have a “continuous surface connection with water, making it difficult to determine where the water ends and the wetland begins.”

Creating a balance of water that’s taken from aquifers and water that replenishes aquifers is an important aspect of making sure water will be available when it’s needed. Image from “Getting down to facts: A Visual Guide to Water in the Pinal Active Management Area,” courtesy of Ashley Hullinger and the University of Arizona Water Resources Research Center

“The Court is basically making the assumption that water only flows on the surface,” Trout Unlimited President and CEO Chris Wood tells F&S. “They’re making the assumption that there’s no such thing as groundwater, no such thing as sub-surface flow. It totally flies in the face of the scientific reality, and it’s a dangerous reading of the Clean Water Act.”

[…]

According to TRCP’s Funk, the onus will now fall on individual states to enact whatever clean water protections they see fit. “Most states don’t have the resources to set up clean water programs and enforce those safeguards,” says Funk. “The whole model of the Clean Water Act was that the feds would provide that cooperative base level of protection for the states. With this ruling, that base just dropped considerably.”

The U.S. Supreme Court just shriveled federal protection for #wetlands, leaving many of these valuable ecosystems at risk — The Conversation

Many ecologically important wetlands, like these in Kulm, N.D., lack surface connections to navigable waterways. USFWS Mountain-Prairie/Flickr, CC BY

Albert C. Lin, University of California, Davis

The U.S. Supreme Court has ruled in Sackett v. EPA that federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water. This is an extremely narrow interpretation of the Clean Water Act that could expose many wetlands across the U.S. to filling and development.

Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where land is wet for all or part of the year, so they straddle this division of authority.

Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland.

This can be time-consuming and expensive, which is why the Supreme Court’s ruling on May 25, 2023, will be of keen interest to developers, farmers and ranchers, along with conservationists and the agencies that administer the Clean Water Act – namely, the Environmental Protection Agency and the U.S. Army Corps of Engineers.

For the last 45 years – and under eight different presidential administrations – the EPA and the Corps have required discharge permits in wetlands “adjacent” to water bodies, even if a dune, levee or other barrier separated the two. The Sackett decision upends that approach, leaving tens of millions of acres of wetlands at risk. https://www.youtube.com/embed/bFGMoFIjKRM?wmode=transparent&start=1 The U.S. has lost more than half of its original wetlands, mainly due to development and pollution.

The Sackett case

Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes. The parcel once was part of a large wetland complex. Today, even after the Sacketts cleared the lot, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.

In preparation to build a house, the Sacketts had fill material placed on the site without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland.

In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts. After losing below on the merits, they returned to the Supreme Court with a suit asserting that their property was not federally protected. This claim in turn raised a broader question: What is the scope of federal regulatory authority under the Clean Water Act?

Homes line the edges of a river.
Housing encroaches on Caloosahatchee River wetlands in Fort Myers, Fla. Jeffrey Greenberg/Universal Images Group via Getty Images

What are ‘waters of the United States’?

The Clean Water Act regulates discharges of pollutants into “waters of the United States.” Lawful discharges may occur if a pollution source obtains a permit under either Section 404 of the act for dredged or fill material, or Section 402 for other pollutants.

The Supreme Court has previously recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water. But many wetlands are not wet year-round, or are not connected at the surface to larger water systems. Still, they can have important ecological connections to larger water bodies.

In 2006, when the court last took up this issue, no majority was able to agree on how to define “waters of the United States.” Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. Waters of the U.S., he contended, should not include “ordinarily dry channels through which water occasionally or intermittently flows.”

Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act should reach “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.”

In a concurring opinion, Justice Anthony Kennedy took a very different approach. “Waters of the U.S.,” he wrote, should be interpreted in light of the Clean Water Act’s objective of “restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters.”

Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a “significant nexus” with navigable waters – “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Neither Scalia’s nor Kennedy’s opinion attracted a majority, so lower courts were left to sort out which approach to follow. Most applied Kennedy’s significant nexus standard, while a few held that the Clean Water Act applies if either Kennedy’s standard or Scalia’s is satisfied.

Regulators have also struggled with this question. The Obama administration incorporated Kennedy’s “significant nexus” approach into a 2015 rule that followed an extensive rulemaking process and a comprehensive peer-reviewed scientific assessment. The Trump administration then replaced the 2015 rule with a rule of its own that largely adopted the Scalia approach.

The Biden administration responded with its own rule defining waters of the United States in terms of the presence of either a significant nexus or continuous surface connection. However, this rule was promptly embroiled in litigation and will require reconsideration in light of Sackett v. EPA.

The Sackett decision and its ramifications

The Sackett decision adopts Scalia’s approach from the 2006 Rapanos case. Writing for a five-justice majority, Justice Samuel Alito declared that “waters of the United States” includes only relatively permanent, standing or continuously flowing bodies of water, such as streams, oceans, rivers, lakes – and wetlands that have a continuous surface connection with and are indistinguishably part of such water bodies.

None of the nine justices adopted Kennedy’s 2006 “significant nexus” standard. However, Justice Brett Kavanaugh and the three liberal justices disagreed with the majority’s “continuous surface connection” test. That test, Kavanaugh wrote in a concurrence, is inconsistent with the text of the Clean Water Act, which extends coverage to “adjacent” wetlands – including those that are near or close to larger water bodies.

“Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland,” Kavanaugh explained. “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

The majority’s ruling leaves little room for the EPA or the Army Corps of Engineers to issue new regulations that could protect wetlands more broadly.

The court’s requirement of a continuous surface connection means that federal protection may no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans – including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that construction of a road, levee or other barrier separating a wetland from other nearby waters could remove an area from federal protection.

Congress could amend the Clean Water Act to expressly provide that “waters of the United States” includes wetlands that the court has now stripped of federal protection. However, past efforts to legislate a definition have fizzled, and today’s closely divided Congress is unlikely to fare any better.

Whether states will fill the breach is questionable. Many states have not adopted regulatory protections for waters that are outside the scope of “waters of the United States.” In many instances, new legislation – and perhaps entirely new regulatory programs – will be needed.

Finally, a concurring opinion by Justice Clarence Thomas hints at potential future targets for the court’s conservative supermajority. Joined by Justice Neil Gorsuch, Thomas suggested that the Clean Water Act, as well as other federal environmental statutes, lies beyond Congress’ authority to regulate activities that affect interstate commerce, and could be vulnerable to constitutional challenges. In my view, Sackett v. EPA might be just one step toward the teardown of federal environmental law.

This is an update of an article originally published on Sept. 26, 2022.

Albert C. Lin, Professor of Law, University of California, Davis

This article is republished from The Conversation under a Creative Commons license. Read the original article.

U.S. Supreme Court Limits E.P.A.’s Power to Address Water Pollution — The New York Times

The Wood River Wetland in southern Oregon is home to an array of biodiverse vegetation and is a freshwater ecoregion. Photo credit: Bureau of Land Management

Click the link to read the article on The New York Times website (Adam Liptak). Here’s an excerpt:

Experts in environmental law said the decision would leave many wetlands subject to pollution without penalty, sharply undercutting the E.P.A.’s authority to protect them under the Clean Water Act…Kevin Minoli, who worked as a senior E.P.A. lawyer from the Clinton through the Trump administrations, overseeing the enforcement of Clean Water Act regulations, said the decision would have enormous practical consequences and estimated that it would affect more than half the nation’s wetlands…

The decision was nominally unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to the agency’s oversight because the wetlands on their property were not subject to regulation in any event. But there was sharp disagreement about a new test the majority established to determine which wetlands are covered by the law. Justice Brett M. Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would harm the federal government’s ability to address pollution and flooding.

“By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

[…]

“There,” she wrote, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”

U.S. Supreme Court guts clean #water protections, putting wetlands, rivers, public health at risk — @AmericanRivers

Wetlands, which are havens of biodiversity, offer priceless ecological benefits. As wetlands are lost to development nationwide, critics of the dam project worry about its local impact. (Photo Credit: John Fielder via Writers on the Range)

Click the link to read the statement on the American Rivers website (Amy Souers Kober):

In today’s [May 25, 2023] ruling on Sackett v. EPA, the Supreme Court dramatically narrowed the scope of the Clean Water Act, undoing protections that have safeguarded the nation’s waters for over 50 years. Because it erases critical protections for tens of millions of acres of wetlands, the court’s ruling threatens the clean drinking water sources for millions of Americans.  

Overturning federal protections for wetlands makes them vulnerable to pollution and harmful development, which impacts water quality, groundwater supplies, flood protection, and habitat for plants, fish, and wildlife. It will also make it more expensive to treat our water, driving up costs for millions of people. The court’s ruling will allow further destruction of wetlands, which will increase the rate and severity of flooding and flood damages in many places. 

Tom Kiernan, President and CEO of American Rivers, made the following statement: 

“The court’s ruling is a serious blow to wetlands, which are essential to clean, affordable drinking water, public health, and flood protection. Today’s ruling puts rivers and people at greater risk from pollution and harm. We urge state officials, the Biden Administration, and Congress to act quickly to safeguard rivers, wetlands, and streams that are so vital to our health and safety, environment, and economy. Rivers should unite us, not divide us.” 

“Without strong, science-based protections, the rivers and wetlands that are the lifeblood of our nation will suffer irreparable harm. We risk going backwards to a time of beach closures and rivers choked with pollution. This ruling will exacerbate environmental injustices as the worst impacts harm communities of color. American Rivers will continue to stand with local partners and frontline communities to secure equitable protections for rivers and clean water nationwide. ” 

2023 #COleg: How well did the #Colorado legislature protect Mother Nature in 2023? Environmentalists saw some missed opportunities but enough victories to be encouraged — The #Denver Post #ActOnClimate

Coyote Gulch’s shiny new Leaf May 13, 2023

Click the link to read the article on The Denver Post website (Noelle Phillips). Here’s an excerpt:

Environmental advocates said the Democrat-controlled General Assembly created some new policies that should help chip away at air pollution, but the legislators missed out when making changes that could have a sweeping, long-term impact. The successes included a push toward expanded use of electric-powered cars and trucks, lawn equipment and home appliances that should eliminate some greenhouse gas emissions as the state weans itself from a reliance on fossil fuels. But the failures, environmentalists said, hurt the state’s overall goal to get into compliance with the federal Clean Air Act by reducing ozone pollution. The Front Range is listed by the Environmental Protection Agency as being in “severe non-attainment” for failing for years to meet federal clean air standards. On that front, HB23-1294, a bill that would have closed loopholes for new oil and gas permits, was gutted in order to win over Gov. Jared Polis’ support. And a massive land-use bill, which would have benefitted the environment by building more dense housing projects and encouraging people to drive less, failed…

The land-use bill, which would have reshaped how the state plans housing development, was mostly discussed as an answer to Colorado’s affordable housing issues. But SB23-213 was backed by environmentalists, who believed it would reduce sprawl and eliminate people’s reliance on cars by building more dense housing around places where people live, work and play. Denser development also means buildings use less energy and water, said Matt Frommer, senior transportation associate at Southwest Energy Efficiency Project. Frommer said he was so disappointed in the bill’s failure that he had to step away from talking about it for a few days after the session ended…

Kirsten Schatz, a clean air advocate for the Colorado Public Interest Research Group, was pleased that the legislature approved tax credits of up to 30% for Coloradans who buy electric-powered lawn and garden equipment…

Mauna Loa is WMO Global Atmosphere Watch benchmark station and monitors rising CO2 levels Week of 23 April 2023: 424.40 parts per million Weekly value one year ago: 420.19 ppm Weekly value 10 years ago: 399.32 ppm 📷 http://CO2.Earthhttps://co2.earth/daily-co2. Credit: World Meteorological Organization

SB23-016: Greenhouse gas emissions reduction measures

This lengthy bill created multiple measures aimed at reducing greenhouse gas emissions and changes the goals for how fast the state must meet certain benchmarks between 2035 and 2045. The bill created a 30% tax credit for electric lawn and garden equipment and added regulations to how the Colorado Oil and Gas Conservation Commission regulates greenhouse emissions from fracking. Polis signed the bill on Thursday.

Hydrocarbon processing in the Wattenberg Field east of Fort Lupton, Colo., on July 2, 2020. Photo/Allen Best

HB23-1294: Pollution protection measures

This bill requires the Colorado Oil and Gas Conservation Commission to conduct a rulemaking to define, evaluate, and address the cumulative impacts of oil and gas drilling by April 2024. It also updates the complaint process by requiring the commission to respond to public complaints within 30 days, requiring the commission to consider credible evidence of pollution violations.

The bill eliminates a statute of limitations loophole as well as what’s known as the “start-up, shutdown and malfunction” loophole. It also establishes an interim legislative committee to craft more comprehensive legislation tackling these air pollution problems.

The bill is awaiting the governor’s signature and proponents believe he will do so.

Air-source heat pumps at the home of Joe Smyth and Kristen Taddonio in Fraser, Colo. Photo/Joe Smyth

HB23-1272: Decarbonization tax credits

The bill creates a package of tax credits for consumers who buy climate-friendly technology such as electric cars and trucks, electric bicycles and heat pumps. Polis signed the bill on Thursday.

Top view of an induction cooktop. By Erik1980, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=1835324

HB23-1161: Environmental standards for appliances

The bill sets tougher emissions standards for new gas furnaces and water heaters sold in Colorado, phases out the sale of fluorescent light bulbs that contain mercury and sets new energy- and water-saving standards for appliances. The bill is on the governor’s desk but has not been signed.

Leaf charging in Frisco September 30, 2021.

HB23-1233: Electric vehicle charging and parking requirements

This bill accelerates the implementation of new electric vehicle charging requirements for new buildings, increasing the availability of charging stations at apartment buildings and condominiums. It also created a standard definition of disproportionately impacted communities to guide the state in establishing environmental programs in the areas that need them the most. The bill has not been signed.

Xcel truck at Shoshone plant. Photo credit: Brent Gardner-Smith/Aspen Journalism

SB23-291: Utility regulation

The bill’s goal was to lower utility bills for Coloradans but environmentalists liked it because it pushes the state further away from a reliance on natural gas. It prohibits utility companies from charging their customers to subsidize natural gas service for new construction projects and requires the Public Utilities Commission to stop charging customers who choose to stop using natural gas. Polis signed the bill on Thursday.

HB23-1134: Electric options in home warranties

A homeowner with a warranty contract can opt for electric alternatives to gas-fueled equipment such as heat pumps. The governor signed the bill on March 31.

Volunteers help to construct the solar system at a low-income, rental-housing subdivision in La Plata County. Photo/LPEA

HB23-1234: Solar permitting

The bill streamlined solar permitting and cut red tape to accelerate the use of solar energy. Polis signed the bill on Thursday.

Graphic credit: City and County of Denver

SB23-253: Compost labeling

The bill creates a standard for labels on products that can be composted, such as trash bags, paper plates, disposable cups and utensils. The bill has not been signed by the governor.

Pesticides sprayed on agricultural fields and on urban landscaping can run off into nearby streams and rivers. Here, pesticides are being sprayed on a soybean field in Iowa. (Credit: Eric Hawbaker, Blue Collar Ag, Riceville, IA)

SB23-266: Pesticide restrictions

This bill limits the sale of neonic pesticides, which are harmful to bees and other pollinators. The bill is awaiting the governor’s signature.

Geothermal Electrical Generation concept — via the British Geological Survey

HB23-1252: Thermal energy

The bill advanced the adoption of clean geothermal energy heating and cooling systems. Polis signed it on Thursday.

State of #Colorado approves settlement with the federal government for natural resources damages at Bonita Peak Mining District Superfund Site #GoldKingMine #AnimasRiver #SanJuanRiver

This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5, 2015. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]

Click the link to read the release on Colorado Attorney General Phil Weiser’s website (Lawrence Pacheco):

May 11, 2023 (DENVER) — The Colorado Natural Resources Trustees today approved a $5 million settlement with the federal government to resolve natural resource damages claims at the Bonita Peak Mining District Superfund Site, including damages from the 2015 Gold King Mine blowout.

The United States’ alleged liability stems from two different sources. The U.S. Forest Service and the U.S. Bureau of Land Management manage federal lands within the Bonita Peak Mining District where mining activity historically occurred. Federal law imposes liability for natural resources injuries on owners of sites where they occur. In addition, the trustees alleged the U.S. Environmental Protection Agency was partly liable for the Gold King Mine release.

The Colorado Division of Reclamation, Mining and Safety began reclamation efforts at the Gold King Mine in 2008. Beginning in 2014, EPA initiated Superfund response activities focused on assessing a blockage in an adit at the Gold King Mine. On August 5, 2015, while EPA contractors were scraping away material from above the blockage, acidic pressurized water began leaking from the mine. The flow quickly increased in volume and released three million gallons of acid mine-impacted water that had been impounded behind the blockage. The contamination then released into downstream waters including the Animas and San Juan Rivers. EPA immediately conducted an emergency response to address the discharging Gold King mine with an interim water treatment plant.

The EPA listed the Bonita Peak Mining District Superfund Site encompassing several dozen abandoned mines on the National Priorities List in September of 2016 and is currently taking response actions to assess and respond to releases of hazardous substances into surface water from historic mining activities within the site. To date, the EPA has spent over $75 million on response efforts at the site.

The $5 million settlement with the federal government announced today will enable the trustees to fund projects to restore damaged natural resources from the spill and other releases of hazardous substances within the Bonita Peak Mining District Superfund Site. The trustees will consult with regional stakeholders—including local governments, not-for-profit groups, and community members—to solicit proposals, and allocate the money for environmental restoration projects.

“The damage to Southwestern Colorado natural resources remains a matter of great concern. In this action, we are securing valuable funds to address these damages and invest in the restoration of natural resources in this part of our state,” stated Attorney General Phil Weiser, chair of the Colorado Natural Resources Trustees. “We have vigilantly pursued claims for natural resource damages and will work hard to invest the funds we have recovered to best serve the affected communities.”

“Inactive and abandoned mines that operated before Colorado had mining laws continue to have unfortunate and ongoing impacts to Colorado’s waters and landscape. The issues surrounding Bonita Peak Mining District Superfund site remain challenging and I appreciate the cooperation among the trustees and the federal government in settling our State’s natural resource damage claims,” said Dan Gibbs, a trustee and the executive director of the Colorado Department of Natural Resources. “The Department of Natural Resources and our Division of Reclamation Mining and Safety will continue to work with our federal partners and other entities to reduce the impacts of legacy mining in our state.”

“Preserving our natural resources so we can protect the environmental and public health of Colorado communities is a top priority for our department,” said Jill Hunsaker Ryan, a trustee and the executive director of the Colorado Department of Public Health & Environment. “These funds will support the restoration of natural resources impacted by these damages, help Southwestern Colorado recover, and help us build a healthier state for all. We will continue to take necessary action to protect Colorado’s rivers, lakes, and groundwater from harmful pollutants.”

Colorado’s Natural Resources Trustees have recovered natural resources damages for the site several times in the past.

  • In December of 2021, the trustees approved a $1.6 million settlement agreement with Sunnyside Gold Corporation (SGC) to resolve claims that the company caused or contributed to releases of acidic, metals-laden mine wastewater into the Upper Animas River watershed. SGC operated the Sunnyside Mine from 1986 until 1991.
  • The trustees received approximately $230,000 in natural resource damages from a 2011 claim against the Standard Metals company regarding its operations at the mining district.
  • The State settled with the Blue Tee Corporation in 2018 for $468,000, which can go toward the Superfund cleanup within the mining district or to restoring injured natural resources.

These damages will likely be pooled with the recent settlement money as the trustees solicit proposals for projects from local stakeholders.

For more information about the trustees and the work they do on behalf of Colorado, please visit: coag.gov/office-sections/natural-resources-environment/trustees/.

Biden-Harris administration to replace Leadville Mine Drainage Tunnel Treatment Plant — Reclamtion #ArkansasRiver

The LMDT is west of Hwy. 91 north of Leadville. Forest, wetlands, and a small neighborhood are located nearby. Photo credit: Reclamation

Click the link to read the release on the Reclamation webiste (Anna Perea and Elizabeth Smith ):

LOVELAND, Colo. — The Bureau of Reclamation announces a $56 million investment from the President’s Investing in America agenda for the construction of a replacement Leadville Mine Drainage Tunnel Treatment Plant. Originally built in 1991, the plant removes heavy metals from contaminated water caused by mining operations in the Leadville area. It has since reached its service life, and this investment from the Bipartisan Infrastructure Law will ensure the plant continues to protect water supply

The Department of the Interior recently announced a nearly $585 million investment from the Bipartisan Infrastructure Law for infrastructure repairs on water delivery systems. Funds will support 83 projects across all five Reclamation regions, including the Leadville Mine treatment plant.

Leadville Mine Drainage Tunnel outbuildings. Photo credit: Reclamation

Since 1991, the treatment plant has operated to remove lead, zinc, manganese, iron, and other heavy metals from contaminated water that flows from the 2-mile-long Leadville Mine Drainage Tunnel. The plant sends 650 million gallons per year of treated, clean water to the headwaters of the Arkansas River in accordance with Environmental Protection Agency guidelines.

“The replacement of the treatment plant represents one of the key priorities that the Bipartisan Infrastructure Law is intended to accomplish, protecting our water supplies for people and the natural environment,” said Jeff Rieker, Eastern Colorado Area Office Manager. “This funding will allow us to replace aging infrastructure that is critical for continued protection of the water resources of the Arkansas River, benefitting both the river itself, as well as the people who rely on it for a wide range of activities and uses.”

At present, the treatment plant has surpassed its expected service life of roughly 30 years. Over the next several years, Reclamation will construct a new treatment plant that incorporates knowledge gained over the past three decades, focuses on safety and improves the plant’s visual impact.

“The new plant will provide a longer service life and continue Reclamation’s commitment to community safety and producing clean water for the Arkansas River,” said Plant Supervisor, Jenelle Stefanic. “There will also be more maneuverability within the floor plan and additional safety features such as fall protection and noise reduction technology.”

Prior to mining, snowmelt and rain seep into natural cracks and fractures, eventually emerging as a freshwater spring (usually). Graphic credit: Jonathan Thompson

#Colorado leaders are rallying against a railway project that would carry crude oil along the #ColoradoRiver — Colorado Public Radio #COriver #ActOnClimate #KeepItInTheGround

Photo shows the Colorado River flanked by fall colors east of Glenwood Springs, Colorado. Photo credit: USBR

Click the link to read the article on the Colorado Public Radio website (Tom Hesse). Here’s an excerpt:

The Uinta Basin Railway project would build around 80 miles of train tracks connecting oil production to America’s rail network. That would allow producers to ship crude oil on trains through Colorado to refineries elsewhere in the country. The U.S. Surface Transportation Board and the United States Department of Agriculture have given the project the go-ahead, prompting a letter from U.S. Sen. Michael Bennet and U.S. Rep. Joe Neguse criticizing the federal review of the project

“First, it focused solely on the Project’s risks in Utah with no evaluation of its potential harm to Colorado, including the risk of a derailment and oil spill in the headwaters of the River”, the March 28 letter read. “Second, this review also failed to include any analysis of the Project’s effect on greenhouse gas emissions and climate change. We urge you to conduct a supplemental review to fully account for these potential harms.”

[…]

While opponents of the project note the catastrophic consequences of a major spill into the Colorado River, those working to get the rail built say the likelihood of contamination is overstated. That’s because the crude oil is high in paraffin wax content, which means it turns to a solid below about 110 degrees Fahrenheit, according to Keith Heaton, director of the Seven County Infrastructure Coalition in Utah that’s advocating for the rail. 

“The only times that the crude is a liquid is when it is heated and loaded into the railcars and when it is reheated back above the 110 degrees pour point, so it can be unloaded and processed,” Heaton said in an email. “In short, Uinta Basin waxy crude is transported as a solid, not a flammable or hazardous liquid. It does not present an environmental concern if there were a derailment.” 

Luis Zerpa, associate professor at the Colorado School of Mines Petroleum Engineering Department, says those waxy properties have historically been seen as a barrier to shipping that type of oil. 

“So that’s the problem with the waxy oils is they have a lot of these paraffinic molecules or components … that create the petroleum jelly or the candles, that when the temperature decreases it will solidify,” Zerpa said, adding that those properties make it very difficult to move the oil via a pipeline. 

However, what makes the crude oil difficult to ship, should make it easy to clean up — at least in the event of a spill. Heaton says the studies done on the rail estimate less than one derailment a year and, if there was an accident, clean-up would be like “picking up a bunch of candles.” 

“This is the safest and most ecological way to transport material. And the material, the waxy crude that we have in the basin, is a much sought after and superior product in ways when it comes to environmental concerns and those types of things. I guess you could characterize it as a little bit perplexing from time to time that there’s so much opposition to this,” Heaton said in a phone call with CPR News. 

The #YampaRiver was graded for the first time ever. What score did the waterway earn? — Steamboat Pilot & Today #GreenRiver #ColoradoRiver #COriver #aridification

Yampa River. Photo credit: Allen Best/The Mountain Town News

Click the link to read the article on the Steamboat Pilot & Today website (Suzie Romig). Here’s an excerpt:

In the first official scorecard of Yampa River system health, the middle section of the Yampa earned an overall score of B. That B means the middle Yampa River from Pump Station boat launch east of Hayden to South Beach about 2 miles south of Craig is a “highly functional river where some stressors are present but in general it remains largely resilient to disturbances and may rely on limited management,” said Jenny Frithsen, environmental program manager with Friends of the Yampa, which is managing the scorecard project. Within the overall score of B as part of the Yampa River Scorecard Project, the middle Yampa earns an A for dissolved oxygen, PH levels and metals in the water, “the only ecological indicators that got an A,” Frithsen reported.

The first results of the long-term scorecard project will be released fully in early May with information available at YampaScorecard.org. Data collection started in the middle Yampa in summer 2022, and the overall project will include five river sections.

During summer 2023, data collection will focus on the stretch starting from Chuck Lewis State Wildlife Area to the Pump Station boat launch.

The river scorecard is derived via approximately 45 different indicators in and around the Yampa River that fall under three main areas: ecological health and function, river uses and management, and people and community benefits.

“By seeing what areas are a C, D or F, we can now focus on action and how to improve these numbers,” said Lindsey Marlow, executive director for Friends of the Yampa. “We now have a template to start conversations with people in this basin about the health of the river and its ecosystem services.”

Marlow said another key finding that stands out is riverscape connectivity, or a measurement of the ease in which a river can move around such as a connected flood plain and river channel.

“There are areas that score so well at 95% and others that need help at 65%, and now we get to embark on the exciting task of figuring out how to improve floodplain connectivity,” Marlow said.

Reclamation awards $4 million for new and innovative #water treatment technologies #PFAS

Salt mine at Sambhar Lake in daytime. Sambhar, Rajasthan, India. Photo credit: Life Brine Mining https://brinemining.eu/en/what-is-life-brine-mining/

Click the link to read the release on the Reclamation website (Chelsea Kennedy):

The Bureau of Reclamation awarded funding for 15 projects under the Desalination and Water Purification Research program. The research projects are innovative solutions that seek to reduce water treatment costs and improve performance.  

“Developing new technologies that can treat currently unusable water will help communities worldwide,” said Research and Development Program Manager Ken Nowak. “These technologies have the potential to increase water supply flexibility under the risks of climate change and drought.” 

The Desalination and Water Purification Research Program provides financial assistance for advanced water treatment research and development, leading to improved technologies for developing water supply from non-traditional waters, including seawater, brackish groundwater, and municipal wastewater, among others.  

In addition to the $4 million in federal funding provided for selected projects, recipients have committed an additional $3 million of non-federal cost share to further support these research efforts.  

Alabama 

  • University of Alabama ($249,966 federal funding, $499,932 total project cost) : Engineering Sustainable Solvents for Brine Desalination. This project seeks to improve solvent performance in temperature swing solvent extraction for brine desalination through experimental and computational techniques.  

California  

  • Pacifica Water Solutions, LLC ($350,000 federal funding, $700,000 total project cost): Field Pilot Testing Electrically Conducting Nanofiltration and Reverse Osmosis Membranes. This project will field test innovative anti-scaling and antifouling electrically conducting desalination membranes against commercial membranes for reverse osmosis concentrate minimization and produced water applications.  
  • University of California, Riverside ($250,000 federal funding, $390,754 total project cost): Development of a Novel Vacuum-ultraviolet Photochemical System for Treatment of Nitrate and Per Fluorinated Substances from Inland Desalination Brine. This project will test a novel laboratory-scale vacuum ultraviolet light-driven photochemical process for treatment of nitrate and perfluoroalkyl substances (PFASs) from inland desalination brine. 

Colorado  

  • University of Colorado ($592,703 federal funding, $756,246 total project cost): Concentrate Minimization: Pilot Testing of Improved Static Mixer Crystallizers. This project will perform pilot scale testing and evaluation of improved in-line, static mixer elements to accelerate the desupersaturation of reverse osmosis desalination brine. 
  • University of Colorado ($250,000 federal funding, $396,501 total project cost): Robust Surface Patterned Membranes for Membrane Distillation of High Salinity Brine with High Efficiency. This project aims to develop and test scalable, robust, surface-patterned microporous membranes that are designed for a membrane distillation process treating highly concentrated brines. 
  • Mickley & Associates LLC ($111,500 federal funding, $234,150 total project cost): Brine Mining. The project will gather, analyze, and synthesize information from the literature, websites, and interviews to bring clarity to many issues involving brine mining, such as potential benefits, feasibility, applicable technologies, recoverable compounds, and more. 

Indiana  

  • Purdue University ($250,000 federal funding, $465,799 total project cost): Batch Counterflow Reverse Osmosis. This project will develop lab-scale demonstration of batch counterflow reverse osmosis to achieve high recovery and efficiency and develop a fundamental understanding of fouling kinetics for the process. 

Massachusetts 

  • Tufts University ($249,994 federal funding, $407,733 total project cost): New Fouling-Resistant, Anti-Microbial Membranes for Pretreatment. This project aims to develop and demonstrate ultrafiltration pretreatment membranes that resist organic fouling and biofouling through dual mechanisms, manufactured through a novel scalable manufacturing process. 

Minnesota 

  • University of Minnesota ($249,853 federal funding, $249,853 total project cost): Crystallization Kinetics: Toward the Useful Separation of Salts in Enhanced Evaporation Systems. This project seeks to leverage the research team’s detailed understanding of the spatial and temporal temperature variation and brine evaporation behavior in enhanced evaporation systems to intentionally, and selectively, precipitate salt in distinct locations for collection and reuse. 

New Mexico 

  • New Mexico Institute of Mining and Technology ($249,896 federal funding, $499,792 total project cost): Advanced Hybrid Membrane Process for Simultaneous Recovery of Clean Water and Lithium from High Salinity Brines. This project seeks to develop an innovative hybrid membrane process for simultaneous recovery of clean water and lithium from high-salinity brines. 

Pennsylvania  

  • Temple University ($250,000 federal funding, $500,972 total project cost): Synergistic Integration of Electroactive Forward Osmosis and Microbial Desalination Cells for Energy-Neutral Desalination. The goal of this project is to develop an energy-neutral seawater desalination system by integrating electroactive forward osmosis and microbial desalination cells. 

Tennessee  

  • Vanderbilt University ($250,000 federal funding, $518,463 total project cost): Selective Removal and Degradation of PFAS via Cyclic Adsorption-electrooxidation on Conductive Functionalized Cu-MOF-aminated-GO. This project aims to develop a fundamentally new approach to selectively remove PFAS from water using a metal organic framework and degrade it to ensure complete removal. 

Texas  

  • William Marsh Rice University ($250,000 federal funding, $332,842 total project cost): Ion Exchange Membranes with Tunable Monovalent Ion Permselectivity to Maximize Water Recovery in Desalination. This project seeks to improve the performance of electrodialysis technologies by developing ion exchange membranes with tunable ion permeability and permselectivity for desalination applications. 
  • Freese and Nichols, Inc. ($231,710 federal funding, $539,945 total project cost): Strategies for Gaining Pathogen Removal Credit for Reverse Osmosis in Potable Reuse in Texas (and Beyond). This project will facilitate the identification and evaluation of strategies for gaining pathogen removal credit for reverse osmosis in potable reuse applications in Texas and beyond. 

Virginia  

  • George Mason University ($250,000 federal funding, $500,203 total project cost): Engineering Spatial Wood Carbon Scaffolds with Nanocellulose Fillers for Water Deionization. This project seeks to create an innovative and energy-efficient capacitive deionization process with the help of biomass-based advanced porous structures for water desalination and purification. 

For more information on Reclamation’s Desalination and Water Purification Research Program visit www.usbr.gov/research/dwpr

How do you tackle microplastics? Start with your washing machine: Simple filters could help remove microfiber pollution from your laundry. But experts say a broader portfolio of solutions is needed to address the problem — Grist

Credit: EPA

Click the link to read the article on the Grist website (Saqib Rahim):

As environmental challenges go, microfiber pollution has come from practically out of nowhere. It was only a decade or so ago that scientists first suspected our clothing, increasingly made of synthetic materials like polyester and nylon, might be major contributors to the global plastic problem.

Today a growing body of science suggests the tiny strands that slough off clothes are everywhere and in everything. By one estimate, they account for as much as one-third of all microplastics released to the ocean. They’ve been found on Mount Everest and in the Mariana Trench, along with tap water, plankton, shrimp guts, and our poo.

Research has yet to establish just what this means for human and planetary health. But the emerging science has left some governments, particularly in the Global North, scrambling to respond. Their first target: the humble washing machine, which environmentalists say represents a major way microfiber pollution reaches the environment.

Late last month a California State Assembly committee held a hearing on Assembly Bill 1628, which would require new washing machines to include devices that trap particles down to 100 micrometers — roughly the width of human hair — by 2029. The Golden State isn’t alone here, or even first. France already approved such a requirement, effective 2025. Lawmakers in Oregon and Ontario, Canada have considered similar bills. The European Commission says it’ll do the same in 2025.

Environmental groups, earth scientists and some outdoor apparel companies cheer the policies as an important first response to a massive problem. But quietly, some sustainability experts feel perplexed by all the focus on washers. They doubt filters will achieve much, and say what’s really needed is a comprehensive shift in how we makeclean and dispose of clothes.

The wash is “only one shedding point in the lifecycle of the garment. To focus on that tiny, tiny moment of laundry is completely nuts,” said Richard Blackburn, a professor of sustainable materials at the University of Leeds. “It would be much better to focus on the whole life cycle of the garment, of which the manufacturing stage is much more significant in terms of loss than laundering, but all points should be considered.”

Today, some 60 percent of all textiles incorporate synthetic material. Anyone who’s worn yoga pants, workout gear or stretchy jeans knows the benefits: These materials add softness, wicking and flexibility. Under a microscope, though, they look a lot like plain old plastic. From the moment they’re made, synthetic clothes — like all clothes — release tiny shreds of themselves. Once liberated these fibers are no easier to retrieve than glitter tossed into the wind. But their size, shape, and tendency to absorb chemicals leaves scientists concerned about their impacts on habitats and the food chain.

Anja Brandon is an associate director for U.S. plastics policy at the Ocean Conservancy who has supported the California and Oregon bills. She concedes that filters won’t fix the problem, but believes they offer a way to get started. She also supports clothing innovations but said they could be years away. “I for one don’t want to wait until it’s a five-alarm fire,” she said.

Studies suggest a typical load of laundry can release thousands or even millions of fibers. Commercially available filters, like the PlanetCare, Lint LUV-R and Filtrol, strain the gray water through ultra-fine mesh before flushing it into the world. It’s the owner’s job, of course, to periodically empty that filter — ideally into a trash bag, which Brandon said will secure microfibers better than the status quo of letting them loose into nature.

Washing machine manufacturers in the U.S. and Europe have pushed back, saying the devices pose technical risks, like flooding and increased energy consumption, that must be addressed  first. University experiments with these filters, including an oft-cited 2019 study by the University of Toronto and the Ocean Conservancy, haven’t found these issues, but it’s not a closed case yet: Last year a federal report on microfibers, led by the Environmental Protection Agency and National Oceanic and Atmospheric Administration, called for more research in this vein.

Manufacturers also argue that microfibers originate in a lot of places, but washers are a relatively modest one. As self-serving as that sounds, people who study the issue agree there’s a huge hole in the available science: While we know clothes shed microfibers throughout their lives, we know surprisingly little about when most of it happens.

Some evidence suggests that the friction of simply wearing clothes might release about as many microfibers as washing them. Then there are dryers, which some suspect are a major source of microfiber litter but have been barely studied, according to the federal report. There is also limited knowledge about how much microfiber pollution comes from the developing world, where most people wash by hand. (A recent study led by Hangzhou Dianzi University in Hangzhou, China pointed to this knowledge gap – and found that hand-washing two synthetic fabrics released on average 80 to 90 percent fewer microfiber pollution than machine-washing.)

To Blackburn, it’s obvious that most releases occur in textile mills, where it’s been known for centuries that spinning, weaving, dyeing and finishing fabric spritzes lots of fiber. “Where do you think it goes when we get it out of the factory?” he said. “It goes into the open air.”

He calls filter policies “totally reactionary,” arguing that they would at best shave a few percentage points off the total microfiber problem. But there is one area where Blackburn is in broad agreement with environmentalists: In the long run, tackling the issue will take a lot of new technology. No silver-bullet solution has appeared yet, but a slew of recent announcements reveals a vibrant scene of research and development attacking the problem from many angles.

Some best practices already are known within the industry. For example, more tightly woven clothes, and clothes made of long fibers rather than short ones, fray less. But for years, popular brands like Patagonia and REI have said what they really need is a way to experiment with many different materials and compare their shedding head to head. This has been tricky: Microfibers are, well, micro, and there’s no industry standard on how to measure them.

That might be changing. In separate announcements in February, Hohenstein, a company that develops international standards for textiles, and activewear brand Under Armour revealed new methods in this vein. Under Armour is targeting 75 percent “low-shed” fabrics in its products by 2030.

These approaches would at best reduce microfiber emissions, not eliminate them. So another field of research is what Blackburn calls “biocompatibility”: making microfibers less harmful to nature. California-based companyIntrinsic Advanced Materials sells a pre-treatment, added to fabrics during manufacturing, that it claims helps polyester and nylon biodegrade in seawater within years rather than decades. Blackburn’s own startup, Keracol, develops natural dyes, pulled from things like fruit waste, that break down more easily in nature than synthetic ones.

New ideas to dispose of clothes are also emerging, though some will cause arched eyebrows among environmentalists. This year U.S. chemical giant Eastman will start building a facility in Normandy, France that it claims “unzips” hard-to-recycle plastics, like polyester clothes, into molecular precursors that can be fashioned into new products like clothes and insulation. Critics charge that such “chemical recycling” techniques are not only of dubious benefit to the environment, they’re really just a smokescreen for fossil-fuel corporations trying to keep their product in demand.

Lest anyone forget about washing machines, there’s R&D going after them, too. In January Patagonia and appliance giant Samsung announced a model that they claim cuts micro plastic emissions up to 54%. It’s already rolled out in Europe and Korea. At around the same time, University of Toronto researchers published research on a coating that, they claim, makes nylon fabric more slippery in the wash, reducing friction and thus microfiber emissions by 90 percent after nine washes. In a press release the researchers tut-tutted governments for their focus on washing-machine filters, which they called a “Band-Aid” for the issue.

One continuous thread through all these efforts, of course, is that everyone is working with imperfect information. The emerging science on microfibers – and microplastics in general – suggests they’re a gritty fact of modern life, but doesn’t yet show the magnitude of their harm to humans and other species. For the moment environmentalists, policymakers and manufacturers aren’t just debating whether to put filters on washing machines, but whether we know enough to act. In 20 years, when scientists know a lot more, it’ll be easier to judge whether today’s policies represented proactive leadership on an emerging environmental problem — or a soggy Band-Aid.

America’s Most Endangered Rivers of 2023 — @AmericanRivers

Click the link to read the article on the American Rivers website:

A workgroup, of sorts, on the Colorado River in the Grand Canyon. Photo credit: Brent Gardner-Smith/Aspen Journalism

#1 COLORADO RIVER IN THE GRAND CANYON

THREAT: CLIMATE CHANGE AND OUTDATED WATER MANAGEMENT

The Colorado River’s Grand Canyon is one of our nation’s, and the world’s, greatest natural treasures. A sacred place of deep cultural significance, it is also a beloved recreation and travel destination, and home to endangered plants and animals. But rising temperatures and severe drought driven by climate change, combined with outdated river management and overallocation of limited water supplies, put this iconic river at serious risk. As it makes critical decisions about water management along the Colorado River, the Bureau of Reclamation must consider the environment a key component of public health and safety and prioritize the ecological health of the Grand Canyon.

The confluence of the Mississippi and Ohio rivers is at Cairo, Illinois. By ISS Crew Earth Observations experiment and the Image Science & Analysis Group, Johnson Space Center, NASA – http://earthobservatory.nasa.gov/Newsroom/NewImages/images.php3?img_id=17177, Public Domain, https://commons.wikimedia.org/w/index.php?curid=735327

#2 OHIO RIVER

THREAT: POLLUTION & CLIMATE CHANGE

The Ohio River unifies 30 million people across 15 states, from New York to Mississippi. Protecting this precious resource is essential to ensuring the endurance of cultural identity, historical significance, biodiversity, vibrant river communities, and safe drinking water. But the upper river is threatened by industrialization and pollution, recently exemplified by the East Palestine train derailment. This ongoing chemical disaster underscores the vulnerability of the Ohio River and need for increased safeguards and durable funding for additional and continuous monitoring. To protect the Ohio River, Congress must designate the river as a federally protected water system and commit to significantly fund both the Ohio River Restoration Plan and Ohio River Valley Water Sanitation Commission’s technical upgrades.

#3 PEARL RIVER

THREAT: DREDGING & DAM CONSTRUCTION

The Pearl River is one of the most biodiverse rivers in the U.S. and the primary drinking water source for Jackson, Mississippi. But this natural treasure is threatened by a devastating private real estate development scheme masquerading as a flood control project. This “One Lake” project would dredge and dam the Pearl River to create new waterfront property, destroying vital fish and wildlife habitat, worsening Jackson’s flooding and drinking water crisis, increasing toxic contamination, and reducing freshwater flows critical to the region’s important seafood and tourism economies. The Biden administration must stop this project and invest in environmentally-sustainable flood relief for the predominantly Black community of Jackson while protecting the Pearl River and all the communities and economies that rely on it. 

Ansel Adams The Tetons and the Snake River (1942) Grand Teton National Park, Wyoming. National Archives and Records Administration, Records of the National Park Service. (79-AAG-1). By Ansel Adams – This tag does not indicate the copyright status of the attached work. A normal copyright tag is still required. See Commons:Licensing., Public Domain, https://commons.wikimedia.org/w/index.php?curid=118192

#4 SNAKE RIVER

THREAT: FOUR FEDERAL DAMS

Salmon in the Columbia-Snake River basin are on the brink of extinction in large part due to four dams on the lower Snake in eastern Washington. Restoring salmon runs and honoring treaties and responsibilities with Tribal Nations across the region requires removal of these four dams. Momentum and support for this river restoration effort is growing, but it is critical that the hydropower, transportation, and irrigation services of the dams are replaced before dam removal can begin. The region’s congressional delegation and the Biden administration must act with urgency to invest in infrastructure so that the dams can be removed, setting the Northwest on a course to climate resilience, economic strength, abundant salmon, and cultural revitalization.

Clark Fork River, Missoula, Montana, USA. By The original uploader was Sooter at English Wikipedia. – Transferred from en.wikipedia to Commons., CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=6067994

#5 CLARK FORK RIVER

THREAT: PULP MILL POLLUTION

The Clark Fork is a regional boating and angling destination and supplies some of the richest habitat in the lower 48. Throughout European settlement and industrial development, the Clark Fork was the backbone of large-scale enterprises that left a legacy of pollution and ecological damage. Community members, advocates, Tribes, and government officials are among many who have been helping to heal the river, however, the shuttered Smurfit-Stone pulp mill threatens to reverse the gains made. Sitting along four miles of the Clark Fork downstream of Missoula, Montana, Smurfit-Stone is poisoning the groundwater and river with dioxins and heavy metals. These pollutants threaten fish and wildlife and put the health of Tribal subsistence fishers at risk. Through federal Superfund law, the polluters are responsible for cleaning up the site.

#6 EEL RIVER

THREAT: DAMS

The Eel River once teemed with abundant native fish and other wildlife, supporting the Wiyot, Sinkyone, Lassik, Nongatl, Yuki and Wailaki peoples, who have lived along the river since time immemorial. Today the river’s Chinook salmon, steelhead, and Pacific lamprey are all headed toward extinction in large part because of two obsolete dams that make up Pacific Gas and Electric’s Potter Valley Hydroelectric Project. Together the dams completely block salmon migration and harm river habitat. The license for the dams recently expired and PG&E no longer wants to operate the facilities. It’s up to federal regulators to require PG&E to remove the dams as part of the decommissioning plan, expected during the fall of 2023.

The Lehigh River near Jim Thorpe, Pennsylvania, 24 June 2002. By The original uploader was Malepheasant at English Wikipedia. – Transferred from en.wikipedia to Commons by Matthiasb using CommonsHelper., CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=4495692

#7 LEHIGH RIVER

THREAT: POORLY PLANNED DEVELOPMENT

The Lehigh River, flowing out of the Appalachian Mountains and through the densely populated Lehigh Valley region, is the “backyard river” for half a million people, and the keystone to Northeastern Pennsylvania’s outdoor recreation industry. The areas that surround the river offer outdoor gathering spaces and accessible recreation opportunities for folks throughout the watershed, but especially in the cities of Allentown, Easton, and Bethlehem. But as the region becomes the logistics hub of the eastern seaboard, with over four square miles of warehouses and distribution centers built to date, the river’s health is at risk. Unless federal, state and local decision makers act to improve protections for local waterways, the area’s clean water and wildlife habitat could suffer irreversible harm. 

Uppermost cataract of Klehini Falls. By Mbochart – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=46448893

#8 CHILKAT AND KLEHINI RIVERS

THREAT: MINING

But the Palmer Project, a proposed copper and zinc mine, is about to move to the next stage of development, which could release hundreds of thousands of gallons of toxic wastewater per day into nearby creeks that feed directly into the Klehini and Chilkat rivers, potentially crippling the entire ecosystem of the Chilkat Valley. This is in addition to the already concerning impacts of climate change, such as rapid glacier melting and a historic increase in rainfall. Congress and the Environmental Protection Agency (EPA) must act now to ensure the fundamental protections guaranteed by the federal Clean Water Act are not abandoned and a grave environmental injustice is not allowed.

Fishing on the Gallinas River near Las Vegas, New Mexico, Date: 1886 – 1888? J.R. Riddle Collection, Palace of the Governors Photo Archives, New Mexico History Museum, Santa Fe, New Mexico.

#9 RIO GALLINAS

THREAT: CLIMATE CHANGE AND OUTDATED FOREST AND WATERSHED MANAGEMENT

New Mexico’s waterways are among the most vulnerable in the United States. The Rio Gallinas is the poster child for the adverse impacts—both ecological and cultural — of climate change on Southwestern watersheds. The river provides water for Las Vegas, New Mexico, and for the traditional acequia irrigation system. Drinking water, farming, and overall watershed functionality are all threatened by climate change and outdated forest management practices. Furthermore, without a good connection to its floodplain and a loss of wetlands, the Rio Gallinas is less able to naturally store the water needed to maintain flows during periods of drought. 

#10 OKEFENOKEE SWAMP

THREAT: MINING

The Okefenokee Swamp — a unique wetland nearly half a million acres in size — is threatened by a proposed titanium mine, which government agencies predict would result in permanent and unacceptable damage to this special place. In 2022, the U.S. Army Corps of Engineers abdicated its responsibility for oversight of the proposed mine. The Corps’ decision leaves permitting to the Georgia Environmental Protection Division, which must deny the permit applications for this ill-advised project. The Corps should make it clear that a federal Clean Water Act permit is required for the proposed mine. Perhaps no clearer case exists for why meaningful wetland protections at the federal level under the Clean Water Act are so important. 

2023 #COleg: Bill aims to address #water quality at mobile home parks: HB 1257 supported by Latino advocacy organizations — @AspenJournalism

Brighton Village mobile home park next to a river. Multiple trailers are intersperses with bare deciduous trees on a riverbank. Photo credit: Aqua Talk

Click the link to read the article on the Aspen Journalism website (Heather Sackett):

State legislators have introduced a bill that would create a water-testing program at mobile home parks, addressing residents’ long-standing concerns about water quality.

House Bill 1257, which is sponsored by District 57 Rep. Elizabeth Velasco, D-Garfield County, would require the Colorado Department of Public Health and Environment to create a water-testing program that covers all mobile home parks in the state by 2028. If the testing finds a water-quality issue, the park owner must come up with a remediation plan and not pass the cost of fixing the problem on to the residents. 

The testing results would be made available to park residents and the public in English, Spanish and other languages. The bill would also require park owners to identify the water source and establish a grant program to help park owners pay for remediation options such as infrastructure upgrades. 

The bill was introduced March 26, and its other sponsors are Rep. Andrew Boesenecker, D- Larimer County, and Sen. Lisa Cutter, D-Jefferson County.

Velasco, who said she lived in mobile home parks growing up, said she has heard complaints from residents about discolored water that stains clothes, smells and tastes bad, causes skin rashes, and breaks appliances. But often, those complaints go unaddressed because the water may still meet the standards of the Environmental Protection Agency’s Safe Drinking Water Act. 

“The odor, the taste, the color, those are secondary traits of the water, according to these regulations,” Velasco said. “These issues are in low-income communities, majority people of color. These issues are not happening to wealthy families.”

Environmental justice issue

Water quality in mobile home parks is an environmental-justice issue for the Latino community. According to the Colorado Latino Climate Justice Policy Handbook, nearly 20% of Latino households live in mobile homes. And according to survey results in the 2022 Colorado Latino Policy Agenda, 41% of mobile home residents said they do not trust or drink the water in their homes. Eighty percent of survey respondents said they support new regulations requiring that mobile home parks provide their residents with clean drinking water. 

Beatriz Soto is executive director of Protegete, a Latino-led environmental initiative of Conservation Colorado that developed the climate justice handbook. Conservation Colorado supports the bill. Soto, who also lived in mobile home parks in the Roaring Fork valley, said for years she has heard the same complaints Velasco did about water quality, so she knew it was a top priority for the Latino community. The survey results confirmed the anecdotes.

“This is not just little things we are hearing here and there in the community; this is a bigger issue,” Soto said. “When you work two jobs and you have to drive two hours to work and you come home and have to go to a laundromat because you can’t wash your clothes at your residence, there’s a real cumulative impact of living under those conditions.” 

The Aspen-to-Parachute region has 55 parks, which combined have about 3,000 homes and 15,000 to 20,000 residents. Mobile home parks are some of the last neighborhoods of nonsubsidized affordable housing left in the state and provide crucial worker housing, especially in rural and resort areas. 

Residents have complained about the water quality in some parks for years, but agencies have lacked the regulatory authority to enforce improvements. Recently, residents in parks near Durango and in Summit County have lacked running water for weeks at a time. 

Voces Unidas de las Montanas, a Latino-led advocacy nonprofit that is based in Colorado’s central mountains and works in the Roaring Fork Valley, is one of the organizations leading Clean Water for All Colorado, a committee that helped to craft the legislation. 

“Many of us who grew up in mobile home parks, myself included, have always known and normalized buying bottled water from the store, and it’s because we don’t trust our water,” said Alex Sanchez, president and CEO of Voces Unidas. “Many residents have been complaining and calling for action for decades, and no one has answered their call.” 

Sanchez said the bill is his organization’s No. 1 legislative priority this session.

Rocky Mountain Home Association and Colorado Manufactured Housing Coalition oppose the bill. Tawny Peyton, executive director of the Rocky Mountain Home Association, said the mobile home park industry has been bombarded with sweeping law changes in recent years, causing confusion and additional operation and legal costs. Laws enacted in 2019, 2020 and 2022 granted extra protections to mobile home park residents. 

“The Rocky Mountain Home Association is concerned with the entire bill,” Peyton said in an email. “Why is the mobile home park industry being singly targeted with this legislation? Industry was not made aware that mobile home park water quality was such an issue that a 23-page bill was warranted.”

Bill proponents acknowledge that the issue may take years to get resolved and that new regulations would be just the first step toward gathering data and assessing the problem. 

“This is just a first stab at trying to resolve this issue,” Soto said. “This is establishing a framework to start testing and get all the information and documenting all the water sources for mobile home parks to determine what is the problem.”

House Bill 1257 is scheduled for a hearing by the Transportation, Housing and Local Government Committee on Wednesday [April 12, 2023].

This story ran in the April 8 edition of The Aspen Times, the Vail Daily, the April 9 edition of Summit Daily and the April 10 edition of the Glenwood Springs Post-Independent.

#ColoradoRiver Carbon Bomb: #Utah’s Uinta Railway Project — Natural Resources Defense Council #ActOnClimate #KeepItInTheGround

Oil production on federal public lands in the Uinta Basin.Credit:WildEarth Guardians.

Click the link to read the article on the NRDC website (Josh Axelrod):

Utah’s Uinta Basin has been a center of oil production in the U.S. for nearly 80 years. But, given the type of crude oil found there and its remote location, oil production had historically remained a marginal business. Now, new drilling technology, availability of new refining abilities, and demand from Gulf Coast refineries is driving a production boom in this remote corner of Utah.

Historically, production from the Uinta Basin was capped by the capacity of nearby refineries who refined the yellow and black waxy crude oil that comes out of the ground there. That meant production couldn’t exceed around 85,000 barrels per day (bpd). However, with the ability to now load that crude onto Union Pacific Railway trains headed to the Gulf Coast, production has surged as high as 135,000 bpd. Because of the unique geography of the area, all that oil is currently moved out by tanker trucks.

Enter the Uinta Basin Railway project, a proposed, brand new, 85-mile rail line that would connect the Uinta Basin’s oil fields to the Union Pacific system. According to the project’s proponents, it isn’t designed to take tanker trucks off local roads. Instead, the project is all about future growth. Proponents—a coalition of seven Utah counties—envision unlocking 130,000-350,000 bpd of new crude production.

Uinta Basin Railway project proposed routes. Credit: Surface Transportation Board

A Carbon Bomb in Disguise

That’s a shocking amount of growth for an oil field that produces a highly unusual form of crude oil—a hard, waxy crude that solidifies at temperatures below 110 degrees. Because of its unique chemistry, it cannot be transported via pipeline. Rather, it must be shipped either by truck or rail inside specially heated tanks, all of which has meant that Unita crude has been economically marginal for most of its history. 

But access to a larger market could change all of that.  And what makes it truly shocking is its cumulative greenhouse gas emissions, which could surpass the globally controversial Willow Project. That’s because at Willow’s peak, daily production is estimated at 180,000 bpd, while the Uinta Basin Railway proponents see their fields adding up to 350,000 bpd of new production. 

According to the Surface Transportation Board’s Environmental Impact Statement (EIS) for the project, the high-end production scenario unlocked by this rail line could lead to more than 53 million metric tons of annual greenhouse gas emissions from the combustion of this oil. Given the International Energy Agency’s admonition that no new crude oil supply projects should be brought online to keep global temperature rise in check, the Uinta Basin Railway provides a textbook example of a project with no future in a climate-constrained world. Any federal decisions that could lead to the project’s construction–be they permits or financial assurances–are equivalent to the green lighting of a significant, long-term increase in unneeded and risky oil production.

A Threat to Precious Western Water Supplies

If you read the EIS for the Uinta Basin Railway project, you’d be deceived into believing it’s just about moving crude oil 85 miles closer to the Salt Lake City area and that its impacts are limited in scope. However, nothing could be further from the truth. The surge in growth this project would unlock is all about connecting the Uinta Basin to Gulf Coast refineries, which have bought increasing volumes of this oil in recent years and have the specialized refining equipment necessary to turn this oil into usable products.

What that means on the ground is that this project is about tying into the rail systems that can be used to get the oil all the way to the Gulf Coast. That means primarily using Union Pacific’s rail line, which runs through the Rocky Mountains alongside the headwaters of the Colorado River.

Union Pacific’s rail lines (left) hug the Glenwood Canyon walls beside the muddy Colorado River. Credit: djvass, Flickr

According to the project’s EIS, the extraordinary increase in crude-by-rail traffic facilitated by the project could lead to a derailment every year. Should that derailment be significant, there is a high probability that ruptured tank cars would leak oil into nearby waterways. In a letter from Colorado’s U.S. Senators Bennet and Hickenlooper, joined by Colorado Representative Neguse, this risk is called out specifically given how difficult a major response effort would be in the route’s rugged and remote terrain.

Equally concerning are the properties of the oil itself and what might happen should a spill take place in rapidly moving water without a near-immediate response effort. Though project proponents claim that the Uinta’s waxy crudes are “clean up friendly,” their unique qualities should raise serious concerns. For crude oils that quickly solidify when spilled into water, long term contamination is always a serious risk should the oil adhere to the river bottom as it biodegrades. The extraordinary lack of scientific basis for concluding minimal spill risks within the EIS should raise alarm bells for anyone looking at this project. Given that this oil would move alongside one of the West’s most critical water bodies, robust consideration of spill risks and response limitations should have been paramount to the environmental analysis that was conducted.

Instead, the Surface Transportation Board has accepted the Uinta Railway Project’s voluntary commitment to prepare an emergency response plan applicable only to the 85 miles of new rail line encompassing this project. The increased risks and emergency response capacities beyond that short distance are simply ignored, as if the thousands of miles left for the oil to travel simply do not exist.

A Project with Ballooning Costs Requests Taxpayer Support

When the Uinta Basin Railway project was first proposed, its proponents assured regulators and the public that the entire thing would be funded by private interests. In the intervening years, as the project’s costs have ballooned from $1.2 billion to $2.9 billion, things have changed. Now, project proponents are seeking what are known as “private activity bonds,” which are low-interest, taxpayer funded bonds issued by the Department of Transportation (DOT). DOT has a pot of $30 billion available for issuing these bonds, with nearly $17 billion already out the door. 

Project proponents now hope to access 15% of that remaining pot, even though DOT’s bonds to date have supported highway and rail transit projects

Indeed, the Uinta Basin Railway is a decidedly poor fit for these financial supports. Its sole purpose is moving crude oil out of the Uinta Basin. Few other commodities come from the area and project proponents have made no attempt to play up the rail line’s potential for diversifying markets for local commodities. Instead, they’ve doubled down on the assertion that the rail line will be about oil, oil, oil. Given the congressional desire that private activity bonds “increase private sector investment in U.S. transportation infrastructure,” using these bonds for a project with almost no meaningful utility aside from expanding oil production represents a gross misuse of limited federal funds.

A Project with Unacceptable Risks to the Climate and Fresh Water

In the aftermath of the Willow Project’s approval, the federal government must take greater care in its management of projects designed to lock in massive quantities of future greenhouse gas emissions. The Uinta Basin Railway project is one of these. Its approval and financial support would represent an extraordinary misuse of federal funds at a time when so much federal investment and effort is going to decarbonizing the U.S. economy. Instead, the federal government should be partnering with state and local governments to diversify the economy of this region instead of locking it into another century of dependence on oil.

Colorado River Basin in Colorado via the Colorado Geological Survey

New #PFAS guidelines – a #water quality scientist explains technology and investment needed to get forever chemicals out of US drinking water — The Conversation

PFAS can be found in hundreds of water systems in the U.S. d3sign/Moment via Getty Images

Joe Charbonnet, Iowa State University

Harmful chemicals known as PFAS can be found in everything from children’s clothes to soil to drinking water, and regulating these chemicals has been a goal of public and environmental health researchers for years. On March 14, 2023, the U.S. Environmental Protection Agency proposed what would be the first set of federal guidelines regulating levels of PFAS in drinking water. The guidelines will be open to public comment for 60 days before being finalized.

Joe Charbonnet is an environmental engineer at Iowa State University who develops techniques to remove contaminants like PFAS from water. He explains what the proposed guidelines would require, how water utilities could meet these requirements and how much it might cost to get these so-called forever chemicals out of U.S. drinking water.

1. What do the new guidelines say?

PFAS are associated with a variety of health issues and have been a focus of environmental and public health researchers. There are thousands of members of this class of chemicals, and this proposed regulation would set the allowable limits in drinking water for six of them.

Two of the six chemicals – PFOA and PFOS – are no longer produced in large quantities, but they remain common in the environment because they were so widely used and break down extremely slowly. The new guidelines would allow for no more than four parts per trillion of PFOA or PFOS in drinking water.

Four other PFAS – GenX, PFBS, PFNA and PFHxS – would be regulated as well, although with higher limits. These chemicals are common replacements for PFOA and PFOS and are their close chemical cousins. Because of their similarity, they cause harm to human and environmental health in much the same way as legacy PFAS.

A few states have already established their own limits on levels of PFAS in drinking water, but these new guidelines, if enacted, would be the first legally enforceable federal limits and would affect the entire U.S.

A water droplet sitting on a piece of fabric.
Chemicals used to create water-repellent fabrics and nonstick pans often contain PFAS and leak those chemicals into the environment. Brocken Inaglory/Wikimedia Commons, CC BY-SA

2. How many utilities will need to make changes?

PFAS are harmful even at extremely low levels, and the proposed limits reflect that fact. The allowable concentrations would be comparable to a few grains of salt in an Olympic-size swimming pool. Hundreds of utilities all across the U.S. have levels of PFAS above the proposed limits in their water supplies and would need to make changes to meet these standards.

While many areas have been tested for PFAS in the past, many systems have not, so health officials don’t know precisely how many water systems would be affected. A recent study used existing data to estimate that about 40% of municipal drinking water supplies may exceed the proposed concentration limits.

3. What can utilities do to meet the guidelines?

There are two major technologies that most utilities consider for removing PFAS from drinking water: activated carbon or ion exchange systems.

A membrane treatment system.
Water treatment systems can use activated carbon or ion exchange to remove PFAS from drinking water. Paola Giannoni/E+ via Getty Images

Activated carbon is a charcoal-like substance that PFAS stick to quite well and can be used to remove PFAS from water. In 2006, the town of Oakdale, Minnesota, added an activated carbon treatment step to its water system. Not only did this additional water treatment bring PFAS levels down substantially, there were significant improvements in birth weight and the number of full-term pregnancies in that community after the change.

Ion exchange systems work by flowing water over charged particles that can remove PFAS. Ion exchange systems are typically even better at lowering PFAS concentrations than activated carbon systems, but they are also more expensive.

Another option available to some cities is simply finding alternative water sources that are less contaminated. While this is a wonderful, low-cost means of lowering contamination, it points to a major disparity in environmental justice; more rural and less well-resourced utilities are unlikely to have this option.

4. Is such a major transition feasible?

By law, the EPA must consider not just human health but also the feasibility of treatment and the potential financial cost when setting maximum contaminant levels in drinking water. While the proposed limits are certainly attainable for many water utilities, the costs will be high.

The federal government has made available billions of dollars in funding for treating water. But some estimates put the total cost of meeting the proposed regulations for the entire country at around US$400 billion – much more than the available funding. Some municipalities may seek financial help for treatment from nearby polluters, while others may raise water rates to cover the costs.

5. What happens next?

The EPA has set a 60-day period for public comment on the proposed regulations, after which it can finalize the guidelines. But many experts expect the EPA to face a number of legal challenges. Time will tell what the final version of the regulations may look like.

This regulation is intended to keep the U.S. in the enviable position of having some of the highest-quality drinking water in the world. As researchers and health officials learn more about new chemical threats, it is important to ensure that every resident has access to clean and affordable tap water.

While these six PFAS certainly pose threats to health that merit regulation, there are thousands of PFAS that likely have very similar impacts on human health. Rather than playing chemical whack-a-mole by regulating one PFAS at a time, there is a growing consensus among researchers and public health officials that PFAS should be regulated as a class of chemicals.

Joe Charbonnet, Assistant Professor of Environmental Engineering, Iowa State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

New University of British Columbia #WaterTreatment zaps ‘forever chemicals’ for good #PFAS

Fatemeh Asadi Zeidabadi, a PhD student in the UBC department of chemical and biological engineering and a student in Dr. Madjid Mohseni’s group. Photo credit: Mohseni lab

Click the link to read the article on the University of British Columbia website (Lou Corpuz-Bosshart):

Engineers at the University of British Columbia have developed a new water treatment that removes “forever chemicals” from drinking water safely, efficiently – and for good.

“Think Brita filter, but a thousand times better,” says UBC chemical and biological engineering professor Dr. Madjid Mohseni, who developed the technology.

Dr. Madjid Mohseni

Forever chemicals, formally known as PFAS (per-and polyfluoroalkyl substances) are a large group of substances that make certain products non-stick or stain-resistant. There are more than 4,700 PFAS in use, mostly in raingear, non-stick cookware, stain repellents and firefighting foam. Research links these chemicals to a wide range of health problems including hormonal disruption, cardiovascular disease, developmental delays and cancer.

To remove PFAS from drinking water, Dr. Mohseni and his team devised a unique adsorbing material that is capable of trapping and holding all the PFAS present in the water supply.

The PFAS are then destroyed using special electrochemical and photochemical techniques, also developed at the Mohseni lab and described in part in a paper published recently in Chemosphere.

While there are treatments currently on the market, like activated carbon and ion-exchange systems which are widely used in homes and industry, they do not effectively capture all the different PFAS, or they require longer treatment time, Dr. Mohseni explained.

“Our adsorbing media captures up to 99 per cent of PFAS particles and can also be regenerated and potentially reused. This means that when we scrub off the PFAS from these materials, we do not end up with more highly toxic solid waste that will be another major environmental challenge.”

He explained that while PFAS are no longer manufactured in Canada, they are still incorporated in many consumer products and can then leach into the environment. For example, when we apply stain-resistant or repellent sprays/materials, wash PFAS-treated raingear, or use certain foams to put down fires, the chemicals end up in our waterways. Or when we use PFAS-containing cosmetics and sunscreens, the chemicals could find their way into the body.

For most people, exposure is through food and consumer products, but they can also be exposed from drinking water – particularly if they live in areas with contaminated water sources.

Dr. Mohseni, whose research group also focuses on developing water solutions for rural, remote and Indigenous communities, noted: “Our adsorbing media are particularly beneficial for people living in smaller communities who lack resources to implement the most advanced and expensive solutions that could capture PFAS. These can also be used in the form of decentralized and in-home water treatments.”

The UBC team is preparing to pilot the new technology at a number of locations in B.C. starting this month.

“The results we obtain from these real-world field studies will allow us to further optimize the technology and have it ready as products that municipalities, industry and individuals can use to eliminate PFAS in their water,” said Dr. Mohseni.

Interview language(s): English, Farsi

Study Reveals Suncor PFAS Pollution in Surface Water and Municipal Drinking Water Systems — Earth Justice

Suncor Refinery with Sand Creek in the foreground July 9, 2022. Photo credit: Allen Best/Big Pivots

Click the link to read the release on the Earth Justice Website (Perry Wheeler):

Groups call for CDPHE to issue strongest possible water discharge permit for refinery

DENVER, CO — 

new study conducted by Westwater Hydrology LLC connects PFAS pollution in Sand Creek and the South Platte River, as well as river water used by Commerce City, Brighton, Thornton, Aurora, and other municipal drinking water systems, to the Suncor refinery in Denver. The study found that Suncor’s 2021 discharges from just one outfall, 020, account for 16-47% of the total PFAS loading in Sand Creek and 3-18% of the total PFAS loading in the South Platte.

Municipalities, including Commerce City, Brighton, Thornton, and Aurora, utilize water intake wells along the South Platte downstream of Suncor. Due to the hydrology of the river and the underlying aquifer, any PFAS in the river gets drawn into the drinking water system when it enters these intake wells. The South Platte is also a major source of agricultural irrigation water; Suncor’s PFAS pollution is likely taken up by crops, creating another exposure point for the humans and animals that consume them.

“The communities surrounding the refinery have faced disproportionate health impacts and threats from Suncor for far too long,” said Caitlin Miller, senior associate attorney with Earthjustice’s Rocky Mountain office. “This facility continues to pollute the air that people breathe and the water that they drink with relative impunity. It is time for the Colorado Department of Public Health & Environment (CDPHE) to issue the strongest possible water discharge permit that prohibits Suncor from discharging any more PFAS.”

The PFAS levels studied at Outfall 020 do not account for additional pollution from Suncor’s other outfalls, including process water and stormwater outfalls, which only add to the overall impacts to Colorado’s waterways and drinking water.

CDPHE’s Water Quality Control Division has put forth a draft water permit that reduces the amount of PFAS that Suncor can discharge but fails to limit it to levels that are safe. Suncor installed a temporary treatment system in October 2021 to reduce its PFAS discharges at Outfall 020, but even with these measures in place, the pollution remains at toxic levels according to updated toxicity assessments from the Agency for Toxic Substances and Disease Registry (ATSDR) and the U.S. Environmental Protection Agency (EPA).

In its initial comments on the draft permit, Suncor requested that CDPHE dramatically weaken the pollution limits and monitoring requirements in its final permit for multiple pollutants, including PFAS.

“We have endured pollution to our sources of life through environmentally-racist policies in Commerce City for so long without restoration that even state and federal agencies have normalized trauma to our communities without protection or regulation from extractive industries,” said Renée Millard-Chacon, co-founder and executive director of Womxn from the Mountain, an Indigenous Womxn-led nonprofit based out of Commerce City. “However, we are all connected, and it is never okay to harm disproportionately impacted communities this way, including our future generations, without respecting our right to live and thrive without severe environmental degradation for an economic gain that has never benefited residents’ health.”

PFAS are toxic pollutants that persist in our bodies and the environment for decades. Drinking water is one of the most common routes of exposure to PFAS. Studies of the best-known PFAS have shown links between the chemicals and kidney and testicular cancer, as well as endocrine disruption in people.

The EPA recently objected to Suncor’s draft Title V air permit, finding that CDPHE failed to scrutinize changes to the company’s operations, including those that allow the company to emit even more harmful pollution into surrounding communities. EPA’s objection directs CDPHE to no longer rubberstamp proposed changes to the refinery’s operations.

Read the study: Surface Water PFAS Evaluation – Suncor Energy USA Inc., Commerce City Refinery, Colorado

Update: August 2, 2022

When it was released, the Westwater Hydrology report indicated that South Adams County Water and Sanitation District (SACWSD) had at least one intake well – Well 119 – impacted by Suncor’s PFAS discharges. It found that these PFAS discharges could therefore impact Commerce City drinking water. Since releasing the report, we have learned and verified that this well is not hooked up to SACWSD’s general municipal supply, but rather provides underground irrigation water for portions of Commerce City.

SACWSD has created a dual water system for its northern service area where one set of water infrastructure supplies potable drinking water and another separate system supplies non-potable underground irrigation water. Irrigation water, including irrigation water for domestic use, in the area north of 96th Avenue and east of Highway 2 is impacted by Well 119. This remains a concern if residents use the water for home vegetable or fruit gardens.

The new information about Well 119 does not change any of the other conclusions in the report.

Is ‘responsible’ mining possible?:  A conversation with the director of IRMA — The Land Desk @Land_Desk

Mining Monitor

I’ve got to admit that when someone suggested I talk to the director of a global initiative that has developed standards for “responsible” mining, I was a bit skeptical. Conceptually I get it, but whenever I try to imagine an environmentally “responsible” mine, visions of the Bingham Canyon Mine in Utah come to mind — the largest human-made excavation on earth where more than 1,000 tons of explosives are used daily to blast loose about 150,000 tons of copper-bearing ore. How can that kind of destruction ever be labeled environmentally or socially “responsible?”

The Bingham Canyon mine in Utah. Jonathan P. Thompson photo.

So I hopped onto a Zoom call a few months ago and put the question to Aimee Boulanger, executive director of the Initiative for Responsible Mining Assurance, or IRMA, which, according to its mission statement, offers “true independent third-party verification and certification against a comprehensive standard for all mined materials.” 

It turns out Boulanger was initially even more doubtful than me. “I hated the idea when I first heard it,” Boulanger said, and even refused to take part in it. At the time she was working for Earthworks, a mining and oil and gas watchdog group, one stop in a now three-decade-long career in environmental and health advocacy. She thought the global mining industry was so far gone that a certification system would only serve to greenwash bad behavior. 

But, crucially, it wasn’t the mining industry looking to clean up its image that catalyzed the effort, but rather the companies that buy mined materials wanting to do so responsibly. Tiffany, for example, did not want to support or be associated with blood diamonds. So its CEO at the time went to Earthworks, hoping the NGO would be able to direct him to more responsible suppliers. They didn’t, but the request indicated a need for such a service, something analogous to the Marine Stewardship Council, which certifies fisheries.

Such a system, if implemented correctly, helps consumers — or downstream purchasers in this case — make informed choices about sourcing materials for their products. Maybe all mining is somewhat destructive, but if you have to buy copper or gold or lithium to make your business run, wouldn’t it be better to buy it from a more responsible operator? An independent audit can also incentivize mining companies to use best practices rather than running roughshod over the land, water, and communities. 

So in 2006, representatives from NGOs, including Earthworks, companies that purchase minerals, affected communities, mining companies, and labor unions came together to form IRMA. By the time Boulanger — having come around to the idea — joined up in 2011, the disparate group was still arguing over the meaning of “responsible mining.” They wouldn’t even bother with designing a logo or building a website until they found consensus on the basic principles. Most members assumed it would be impossible to get environmental groups on the same page as mining companies. 

But with Boulanger’s help they were able to create 10 principle points of engagement, which enabled them to formulate a draft charter laying out what “responsible” means when applied to a mining operation. In 2014, they sent out their standards internationally and field tested them at the Stillwater platinum and palladium mine in Montana. They began actual audits shortly before the coronavirus pandemic hit and paused everything. Now they’re back at it.

By this point in the conversation I had become convinced that with enough buy-in, IRMA could push for major improvements in the way mining companies do business, especially in areas where government regulations are weak — like on U.S. public lands. But I was still a bit blurry on one big point, so I asked Boulanger: “What, exactly, does responsible mining look like?”

There isn’t a simple or short answer. IRMA’s Standard for Responsible Mining is now more than two-dozen chapters and hundreds of pages long. “Here’s this 26 chapters, that span everything from resettling community, to pre-informed consent with Indigenous communities, to water and waste management,” Boulanger said. It covers noise and vibration, mercury and cyanide management, worker safety, and cultural heritage.

To even get on the scoring board, so to speak, the mine must meet 40 critical requirements. Dumping waste into natural bodies of water is a virtual deal-killer. Getting consent from the community is mandatory. Then the mine — not the company — is scored based on how many additional standards it achieves. Anglo American’s Unki platinum mine in Zimbabwe, for example, met the 40 requirements plus 75% of the additional standards and received an IRMA score of 75

Initially the organization worked on a pass-fail system, as do most analogous organizations in other industries. This proved problematic when dealing with existing, legacy mines, which might find it easier to get a passing grade by constructing a new mine rather than upgrade the existing one — which isn’t the goal, obviously. So IRMA shifted to a scoring system, instead, because it leaves room for a mine to improve. 

“If you’re a new mine, you should be able to demonstrate that you’re 100%,” Boulanger said. “But if you’re a legacy mine like Bingham Canyon? It’s better to make Bingham Canyon better than cutting a new hole that is perfect.”

Not all mines are eligible for consideration. IRMA members from the labor sector wanted thermal coal to be included, because the average coal miner has been left behind and underground and in the dark. But the environmental sector pushed back, saying that labeling even the best coal mine “responsible” would further enable coal burning, which is fundamentally irresponsible. Same goes for uranium, Boulanger said. “There are too many ‘risk points’ between cradle and grave,” she added. “Even if you say it (nuclear power) is a low greenhouse gas emissions source, it doesn’t count all of the other stuff.”

Coal and uranium mining companies can use IRMA’s self-assessment tool internally to grade themselves and find areas to improve. But they can’t make their score public or use IRMA’s name to burnish their image. And Earthworks’ continued involvement in the Initiative helps ensure industry can’t hijack the certification process for their own ends.

Since its inception, IRMA’s focus has shifted toward so-called “green metals” — e.g. graphite, lithium, rare earths, nickel, and cobalt — that are used in electric vehicles, batteries, and other clean energy applications. Six carmakers have now joined IRMA as members as they look to source these materials more responsibly. 

A large-scale evaporation pond at the Silver Peak lithium mine on Oct. 6, 2022. The evaporation process can take a year and a half to complete. (David Calvert/The Nevada Independent)

Some of the new lithium mining proposals may have a tough time getting on IRMA’s scoreboard, however. Consent from the community, especially the Indigenous community, is paramount. And tribal nations are opposing some of the largest lithium proposals — Thacker Pass in Nevada, for example. “Let’s say you have an average of 68% in all the chapters but did not have Indigenous consent,” Boulanger said. “You’re not going to get the IRMA 50 award.”

“It’s a train wreck right now,” she said. “You’ve got all these industries looking for materials and you’ve got these communities saying, ‘Hell no!’”