With five of Greeley’s six high mountain reservoirs in the burn area, erosion is expected to carry sediment into Greeley’s water supply. Left untreated, that could affect the city’s water quality. But officials are already planning to make sure that doesn’t happen.
“When fires burn, if they’re hot enough, they can actually burn underbrush and soil,” said Adam Jokerst, Greeley’s deputy director of Water Resources, adding that vegetation is burned up as well. “With the lack of the vegetation … you can get increased erosion when it rains or when the snow melts.”
That erosion carries sediment into the Poudre River, which pulls water from the reservoirs to supply water for the city. Water with high sediment content can be harder to treat, Jokerst said, but it is possible to treat safely.
For better or for worse, Jokerst said, Greeley water officials have a lot of experience handling erosion into the water supply after dealing with the impacts of the High Park Fire in 2012. That fire burned more than 87,000 acres, making it the sixth-largest in state history.
There are at least a few steps to take to mitigate erosion impacts: aerial mulching, felling trees and adding flocculants during the treatment process. For aerial mulching, crews drop shredded wheat chips or straw from a helicopter. The mulch reduces erosion and helps with revegetation. Cutting down the burned trees and letting them fall into the gullies and rills — the channels created in the soil by water erosion — prevents stormwater and meltwater from carrying added erosion into the water supply.
Jokerst said it’s common to see the water get murkier during the runoff season every year. To provide clean, clear drinking water when that happens, crews use more flocculants, which are chemicals that help to separate the water from the sediment, in the treatment process. If there’s very high sediment content at the Bellvue Treatment Plant, officials can turn off the plant so it stop pulling water from the Poudre, Jokerst said. The city can then use the Boyd Treatment Plant…
If the fire keeps on into snowfall season in the winter, Jokerst said crews will have to wait until the spring to start on erosion control measures. Greeley officials are working with the city of Fort Collins, Northern Water and the Coalition for the Poudre River Watershed, a nonprofit Jokerst said will be a key entity in the post-fire recovery.
Since the 2016 revelation that groundwater in Fountain Valley, which provided drinking water for Security-Widefield and Fountain, was contaminated with toxic per- and polyfluoroalkyl substances (PFAS), which include a number of individual chemicals such as PFOS, PFOA, PFHxS and PFHpA, government agencies, residents and community activists have been struggling to come to terms with what is arguably one of the largest ecological contaminations in Colorado’s history.
On Aug. 4, Chris Reh, associate director of the U.S. Agency for Toxic Substances and Disease Registry (ATSDR), led a virtual information session for residents of Security-Widefield and Fountain regarding its ongoing PFAS exposure assessment. The assessment will randomly select participants and test blood, urine and tap water for levels of PFAS chemicals. According to Reh, the assessment will identify how people might be exposed to chemicals, calculate the extent of exposure and determine if there is a threat to health.
ATSDR’s exposure assessment is the first part of a process that will continue in 2021 with the Pease Study, a national multi-site study conducted locally by the Colorado School of Public Health that will look at the human health effects of PFAS exposure through drinking contaminated water. While the sites chosen for this study are near Air Force operations, PFAS exposure extends far beyond Air Force bases. Much of the focus in El Paso County is on Fountain Valley, but the Air Force Academy on the city’s Northside also released PFAS chemicals, and residents of Woodmen Valley report health concerns as well, though they are not included in the ATSDR exposure assessment.
El Paso County is one of eight sites nationwide identified by ATSDR for exposure assessments related to PFAS chemicals. The sites, located in Alaska, Colorado, Delaware, Massachusetts, New York, Texas, Washington and West Virginia, are co-located with Air Force bases that used aqueous film forming foam (AFFF), a type of chemical used to extinguish fuel fires and that contains PFAS chemicals…
Since 2016, community activists have been working to raise awareness of this environmental threat, and Colorado legislators have recently passed laws to address PFAS contamination. While much of the blame, and legal consequences, for this massive and widespread contamination have been aimed at companies that produce PFAS chemicals, such as DuPont and 3M, the military has known of the potential dangers of these chemicals since at least 1989.
The Air Force Occupational and Environmental Health Laboratory published a study titled “Biological Analysis of Three Ponds at Peterson AFB [Air Force Base], Colorado Springs CO” in November 1989 that raised concerns about contamination coming from the installation. “A series of three man-made ponds on the golf course at Peterson AFB, Colorado Springs CO were analyzed to determine their current ecological status and future potential for recreational fishing,” notes the report, which goes on to identify that “Pond 3 cannot be recommended for stocking with fish in its current condition. Low species diversity suggests that this pond is being stressed by an unknown pollutant.” The report identifies a nearby storm drain as a “chronic source of pollutants for this pond.” While the Air Force analyzed a number of factors, such as pH and the levels of phytoplankton and zooplankton, it was quick to identify AFFF as a possible problem, noting that it “was accidentally spilled into pond 3 shortly before the first fish kill. A subsequent restocking resulted in a second fish kill.”
Stephen Brady of the Peterson-Schriever Garrison Public Affairs office commented, “When there is a potential our missions are having, or may have had, an adverse impact on communities, we take appropriate measures to protect it. When PFOS was discovered in the aquifer south of base in 2016, we immediately stopped using the legacy foam during fire response and training. We replaced the legacy foam in our fire response vehicles in November 2016 and in the hangar fire suppression systems in 2018 with a more environmentally responsible foam. Our first responders will only use the new environmentally responsible firefighting foam for emergency life-saving response, and do not discharge it during training. The Air Force takes environmental stewardship seriously, and continuously strives to meet or exceed environmental standards.”
By the early 2000s DuPont and 3M were facing lawsuits from residents near their plants and increased scrutiny from the Environmental Protection Agency, but it wasn’t until 2016 that the EPA formally issued a health advisory regarding PFAS chemicals and set advisory levels of contamination at 70 parts per trillion (ppt)…
While Rosenbaum was organizing FVCWC, the Colorado School of Public Health began to study exposure and health effects from PFAS chemicals. The study was named “PFAS Aware.” In 2018 the PFAS Aware team began sampling water in Fountain Valley. Initial results published in December 2018 showed that “total PFASs in untreated well water ranged from 18 – 2300 ppt” and that “PFASs detected are typical of fire-fighting foam-impacted groundwater.”
On Sept. 18, 2019, the Air Force Academy sent a notice to Woodmen Valley residents, signed by Col. Brian Hartless, the installation commander, warning them that “firefighting foam containing PFOS and PFOA was used for firefighter training at the Academy from the 1970s until 1990, when we began to consolidate all of our training at Peterson Air Force Base. After that time, the equipment used to dispense the foam was periodically tested until approximately 2005.” Hartless did note that “this firefighting foam has never been used to extinguish a petroleum-based aircraft fire at the Academy” and that “the foam now in use at the Academy is a more environmentally friendly formula that we began using in approximately 2017.” Hartless went on to inform residents that the Air Force would begin sampling wells within the Woodmen Valley Fire Protection District.
According to Hartless, Air Force Civil Engineer Center representatives “identified 37 private wells used for drinking water at homes closest in proximity to the southern base boundary for sampling. To date, 35 of the 37 wells have been sampled.”
Bill Beaudin, a Woodmen Valley resident since 1978, questions the Air Force’s testing process. “The north border of our property is the south border of the Academy,” he says. “We live on six acres. For many years until 1995 we all used well water. We were offered to go on city water at that time and most of us took that option. About 38 families chose not to go on city water for whatever reason.”
Longtime residents like Beaudin were concerned about the fact that the Air Force only tested the wells still in use. “The rest of us all drank that water and so did our children for all of those years in the ’70s, ’80s and early ’90s until we went on city water,” says Beaudin, “and yet the Air Force Academy chose to just do this select group.”
On March 24, the Air Force announced in a news release, “recent well water monitoring tests on the southeast perimeter of the U.S. Air Force Academy show Perfluorooctane sulfonate (PFOS) and Perfluorooctanoic acid (PFOA) below the Environmental Protection Agency’s Lifetime Health Advisory level of 70 ppt.”
While the Air Force reported PFOS and PFOA levels below the EPA advisory limits, Rosenbaum says that doesn’t tell the whole story. ”There’s 4,700 different types [of PFAS],” she says, “PFHxS is toxic firefighting foam, which may or may not have PFOA, which is Teflon, or PFAS, which is Scotchgard water-repellent. So when the Air Force Academy said ‘we’re below levels of PFOA and PFAS,’ all of us activists who have been doing this for four years were like, ‘duh.’ You don’t have a Teflon pan company. You don’t have a Scotchgard water-proofing company. You have toxic firefighting foam, so here, Public Employees for Environmental Responsibility [PEER] did a FOIA [Freedom of Information Act request] to try to get the PFHxS levels, and they are really high.”
On March 12, 12 days before the Air Force’s statement, PEER reported that “The Air Force Academy test data of neighboring drinking water wells found levels of two individual PFAS chemicals, PFHxS and PFHpA, at more than 200 ppt in two locations” and “combined PFAS levels at a single well of 503.9 ppt and 537.8 ppt across two separate tests.”
The consternation over the levels of PFAS chemicals in the water stems from concerns over the health effects of exposure to these chemicals. Heightened levels of PFAS chemicals have been linked to health problems such as increased cholesterol levels, changes in liver enzymes, decreased vaccine response in children and increased risk of kidney or testicular cancer, according to Rachel Rogers, an environmental health scientist with ATSDR.
“A neighbor that was four houses away, her husband died of testicular cancer,” says Beaudin. “A neighbor who has since passed away died from both kidney and bladder cancer. They were longtime neighbors of ours.”
Rosenbaum notes, “The main health issues here are kidney cancers, prostate cancer and a lot of autoimmune diseases.” Autoimmune disease are often difficult to diagnose because symptoms can come from other common conditions…
Lawmakers in Colorado addressed problems with PFAS contamination during the 2019 legislative session. Tony Exum, D-House District 18; Lois Landgraf, R-House District 21; Pete Lee, D-Senate District 11; and Dennis Hisey, R-Senate District 2, sponsored House Bill 1279, which bans the use of AFFFs that use PFAS chemicals for testing or training purposes. In 2020 the same group of legislators sponsored House Bill 1119, which further regulates the use of PFAS chemicals.
On July 10, The city of Colorado Springs and Colorado Springs Utilities, along with the cities of Aurora, Greeley, Fountain and a number of water districts filed a motion to vacate an administrative action hearing by the Colorado Water Quality Control Commission (WQCC) in regards to a proposed new policy to address PFAS contamination, referred to as policy 20-1. The motion states, “The Joint Parties recognize the importance of assuring that drinking water supplies are not contaminated by PFAS, and that water supplies contaminated by PFAS are cleaned up. Vacating the administrative action hearing will not preclude the cleanup of PFAS; it will require that regulatory measures imposed by the Water Quality Control Division are properly authorized through a rulemaking hearing.”
Rosenbaum was confused by the motion. “At first the injunction was pretty difficult to understand,” she says. “Here we are Saturday morning and it came across that they wanted all the PFAS discussions taken out of the meeting. This is our fifth contamination to our water district here. We have to do something completely different and drastic and start writing new policy. The state health department wasn’t making a new law, they were adding language to the policy they already had in place.
According to Jennifer Kemp, a public affairs specialist with Colorado Springs Utilities, “The reason for our joining several other Front Range entities on the motion to vacate is because we did not agree with the WQCC’s approach to regulating PFAS. Under Colorado’s State Administrative Procedure Act, a policy is a general statement of interpretation that is not meant to be a binding rule. Therefore, we joined other stakeholders in asserting that the regulation of PFAS is so important that it should have been accomplished with a thorough rulemaking process to establish a statewide PFAS standard.”
On July 14 the WQCC adopted policy 20-1. “What this policy does,” explains Rosenbaum, “is it forces wastewater to test for PFAS. Your drinking water is fine, it’s not contaminated yet, but do you have an industry that’s dumping everything into the wastewater? We have the Clean Air Act, Clean Water Act, so they’re not dumping in rivers anymore but they’re dumping into wastewater.
Now we’re making that accountable in our state. Now we’re explicitly stating in writing CDPHE [Colorado Department of Health and Environment] will receive extra funding to help that water district do an investigation of the industries that are connected to the wastewater system to see if they have PFAS. If they do, now they have to filter it at their site. If you own a restaurant, you have a grease trap. You can’t just dump in the wastewater. If you have a dental office, it’s explicitly written that they have to filter mercury. We’re not doing anything different, we’re just directly applying it where they’ve gotten away with no rules because they’ve been allowed to self-regulate.”
While ATSDR completes their current study, Rosenbaum is planning her next steps. “We need to set maximum contaminant levels in this state,” she says. “What we can do is stop the industry from adding more [PFAS contamination] in. New Hampshire set it at 18 ppt, where the state health department wanted to set it at 700 ppt for PFHxS, which is stupid. The EPA isn’t monitoring PFHxS, they’re just doing PFOA and PFAS, so we brought in evidence from other states saying PFHxs is actually the more harmful one because it’s more prevalent.”
Here’s the release from the Bureau of Reclamation (Marlon Duke)
The Bureau of Reclamation has awarded a total of $37.2 million for 11 salinity control projects in Colorado and Wyoming through its Basinwide and Basin States Salinity Control Programs. When the salinity control features are installed, these projects will prevent approximately 23,426 tons of salt each year from entering the Colorado River.
“The projects, when complete, will help provide higher quality water to municipal and agricultural water users in Arizona, Nevada, and California, preventing economic damages,” said Kib Jacobson, program manager for Reclamation’s Colorado River Basin Salinity Control Program.
Economic damages caused by high salinity in the Colorado River water often means reduced crop yields for farmers, growing a more salt-tolerant but lower-value crop, or extra expenditure of water to remove salt from the soil. High salinity can also shorten the useful life of household appliances and increase water treatment and facility management costs.
These projects were selected through a competitive process, open to the public. Reclamation solicits, selects and awards grants through funding opportunity announcements to projects sponsored by non-federal entities that control salt loading in the Upper Colorado River Basin. One of the primary selection criteria is the lowest cost per ton of salt controlled. The average cost per ton of salt for those awarded this year is $60.22. This is comparable to average cost per ton of salt of the 2017 FOA that averaged $58 per ton of salt.
Project proposals often include funding from other sources, and this year an additional $8.7 million in funding will go toward the salinity control projects selected, for a total of $45.9 million.
Reclamation will distribute the $37.2 million over the next 3 to 5 years: $33.7 million for projects in western Colorado and $3.4 million in southwestern Wyoming.
To learn more about the Colorado River Basin Salinity Control Program and Reclamation’s Basinwide and Basin States Salinity Control Programs, visit http://www.usbr.gov/uc/progact/salinity. To learn more about the funding opportunity announcement process, visit grants.gov.
Water restrictions will be implemented for residents of Fort Collins following extreme drought conditions and wildfires which have the area facing a potential water shortage, the city announced on its website.
The water use restrictions will take effect Oct. 1 and will remain in effect until the order is lifted by the city manager…
Ongoing drought conditions, the Cameron Peak Fire burning near Walden and an infrastructure repair project known as Horsetooth Outlet Project (HOP) have the city facing a projected water shortage unless action is taken, the city said.
Typically, utilities receives about 50% of its water from Colorado-Big Thompson shares via Horsetooth Reservoir and 50% from the Cache la Poudre River. During HOP, utilities will have limited access to water supplies in Horsetooth and will rely more heavily on the Poudre River.
If conditions during HOP – like continued drought or poor water quality due to the Cameron Peak Fire – prevent or limit the ability to deliver water from the Poudre River, a temporary backup pump system will convey water from a different Horsetooth Reservoir outlet to the Utilities Water Treatment Facility.
The capacity of this backup system is expected to supply only average utilities winter water demands, which does not include irrigation or other seasonal outdoor uses.
Lawn watering will not be allowed beginning Oct. 1. Trees, gardens for food production and other landscapes may be watered by hand or drip systems only. There are also restrictions on vehicle washing, power washing and street sweeping, among other things.
Now environmental and water quality experts are bracing for more substantial impacts on the Poudre River and the people who depend on it for drinking water, farming, industry and recreation. Degraded water quality, enhanced flood risk and threats to aquatic wildlife are all distinct possibilities as the blaze takes its toll on a delicate, far-branching river ecosystem that had largely recovered from the impacts of the High Park Fire.
The coming weeks and months will bring more news about what the Cameron Peak Fire will mean for the Poudre River. Until then, some staff of the agencies that monitor the river are in a similar position to the rest of us: Stuck in an anxious waiting game as the blaze continues, temperatures warm up and many details about the fire remain obscured in the ever-present haze.
“There are still so many uncertainties,” said Jen Kovecses, executive director of the Coalition for the Poudre River Watershed. “We’re certain about how big the fire is, but we’re not certain about its intensity on the landscape and what it will look like. That’s going to be the missing puzzle piece that we need to understand the full suite of post-fire impacts from this event.”
The aftermath of the High Park Fire offers a glimpse, albeit not an ironclad preview, of some impacts that could come from the Cameron Peak Fire. It all starts with the fire burning away the carpet of leaves, twigs, branches and other vegetation on the forest floor, known as “duff.”
“The fire can consume both the forest canopy and the material on the ground, which is a big problem, because now we have bare soil exposed,” said Pete Robichaud, a research engineer with USDA Forest Service’s Rocky Mountain Research Station. “That forest floor duff layer is like a big sponge. It absorbs the water when it rains, it allows the water to percolate slowly into the soil — it’s great. Well, now the fire removes that, and when the rain comes, there’s no sponge.”
The other problem is smoke, which can seep into the forest floor and cling to soil particles as it cools and condenses, making them hydrophobic — or water repellent.
The two forces combined can leave the soil vulnerable to even a mild afternoon thunderstorm. Water reverbs off the forest floor and travels downslope to the river, dragging soil, sediment and ash along for the ride.
That’s what happened after High Park, which infamously turned the Poudre black in summer 2012.
“Without the ability to soak up water and temper the intensity of rain events, the system overall became a much flashier system,” said Jill Oropeza, director of sciences for Fort Collins Utilities’ Water Quality Services Division. “You’d see water levels rise really quickly; you’d see material from the hillslopes move into the river channel really quickly, and then the quality would change really quickly as well. You just had tons and tons of ash and sediment that got mobilized into the stream channel and then eventually conveyed downstream.”
The Office of Mountains, Deserts and Plains will take charge of remediating abandoned mine lands, including the Gold King Mine in southwest Colorado
The Environmental Protection Agency is creating a new office in Lakewood that will focus on cleaning up abandoned hardrock mining sites west of the Mississippi River, including the Bonita Peak Mining District where the Gold King Mine disaster originated in 2015.
The Office of Mountains, Deserts and Plains will be located in the EPA’s regional office at the Denver Federal Center, the agency announced during a news conference at the Western Museum of Mining and Industry in Colorado Springs on Wednesday. EPA’s National Mining Team Leader Shahid Mahmud will be the acting director, and the team will have nine full-time staff positions.
The office, which will use existing agency funds, will primarily focus on remediation work at Superfund sites and other abandoned mining locations, which release millions of gallons of pollution into streams each year. Remediation efforts will include cleaning up sites and the surrounding environment, and in some cases rebuilding the mine for operations.
There are more than 63 Superfund Mining and Mineral Processing Sites west of the Mississippi River, including nine in Colorado. In Colorado alone, there are roughly 23,000 abandoned mines.
Many historic mining sites don’t have an owner or operator to facilitate cleanup operations themselves, placing it in the EPA’s hands…
The new office will also help speed up project timelines, including to clean up hundreds of abandoned uranium mines on the Navajo Nation.
An agreement finalized in February designated funding and resources to clean up 24 of the highest priority mines, five years after the federal government and tribe first reached a settlement on the mines…
Another goal of the office is to make it easier for so-called “good Samaritan” cleanup operations, such as those facilitated by Trout Unlimited or The Nature Conservancy. Current law says that if a group wants to contribute to cleanup efforts, they could be responsible for finishing the job, whether they’re capable of doing so or not. While the law is what it is, Benevento said, the new office will do what it can to make collaborative cleanup efforts “as unbureaucratic as possible.”
In 2012, the state of Colorado passed Regulation 85, or Reg 85, which dealt with point source and nonpoint source water contaminants. Point sources, like wastewater treatment plants, were hit with strict measures for managing pollutants. Nonpoint sources, like parks, golf courses and agriculture, were not.
However, Reg 85 began a 10-year period where the agricultural community is encouraged to do voluntary measures for managing nutrients, such as nitrogen and phosphorus. Agricultural organizations like the Colorado Livestock Association and Colorado Corn Growers Association were involved in those early discussions and pushed back against the assumption that agriculture is the main contributor of nutrients to streams and rivers in Colorado.
In 2022, the Water Quality Control Commission will determine if the agricultural community needs regulations or if we will continue voluntary measures. The first hearing on Reg 85 is in October, and it is an opportunity for the agricultural community to tell their story and keep Colorado as a voluntary state.
The main issue is not the voluntary measures. Farms and ranches throughout the state have been changing and adapting their practices constantly. Many practices, which have been implemented to simply keep a farm or ranch efficient or profitable, have also improved the management of nitrogen and phosphorus. Colorado producers will continue to invest and adopt practices that manage nutrients and are compatible with their operations.
The issue is telling this story to those outside of the agricultural community, and there are multiple opportunities to do just that.
A team with Colorado State University is conducting multiple edge-of-field studies to show the benefit of specific operations and practices on nutrient management. These studies provide us with valuable data to show the positive benefit of practices on the majority of farms and ranches today.
Additionally, these studies can help the landowner have a better understanding of their own application rates of nitrogen and phosphorus and how well those are being used by the crop.
There is also work being done to demonstrate past improvements through programs like EQIP — Environmental Quality Incentives Program —administered by Natural Resources Conservation Services. Every year, millions of dollars in federal and private funding are spent on Colorado farms and ranches that have had positive impacts on managing nitrogen and phosphorus. These studies can show us how much work has been done throughout the state in reducing loads of nitrogen and phosphorus because of new agricultural practices.
If there is a project that will benefit your farm or ranch and have a positive water quality impact, there is a lot of funding out there. We want to focus that money on projects that are compatible with farms and ranches, making them even better.
If you are interested in participating in any of these opportunities, want to know more about Reg 85 or are interested in project funding, please contact Greg Peterson at the Colorado Ag Water Alliance at email@example.com or 720-244-4629.
Greg Peterson is the executive director of the Colorado Ag Water Alliance.
FromThe Snowmass Sun (Maddie Vincent) via The Aspen Times:
By Sept. 16, the new plant — which started being constructed in 2017 and has now been up and treating local wastewater for more than a month — will be fully working in tandem with the newly renovated current plant, creating a refined wastewater treatment system that goes beyond more stringent state and federal requirements and discharges cleaner water into Brush Creek.
“To see the water flow from that plant through this and actually go out to the stream, to actually see the clarity of the water that goes out to the stream is very gratifying,” Hamby said.
As Hamby stood in the sanitation district parking lot looking at the three buildings, he explained that the primary reason for creating this newly refined wastewater treatment system was the need to align with Regulation 85, the state Nutrients Management Control Regulation passed in 2012 to help reduce phosphorus and inorganic nitrogen pollution to Colorado waterways.
According to Colorado Department of Public Health and Safety documents, Regulation 85 established new limits for how much phosphorus and inorganic nitrogen could be in the clean water discharged from state wastewater treatment plants, new and existing, and put new nutrient monitoring requirements in place.
All 44 wastewater treatment districts in Colorado must meet these new requirements by specified dates, with Snowmass being one of the first on deadline due to its size and location in a priority watershed, as previously reported.
Snowmass Water and Sanitation District voters approved a mill-levy tax to help construct the new plant in May 2016 and the district also was able to sell $23.3 million in bonds for the project, Hamby said.
The total cost for the whole renovated system — including construction of the new plant and renovation of the current plant — is around $27.6 million, Hamby said. The district anticipates it will be about 1% over budget when the project is completed this fall, but will be able to cover the extra cost with system development fee revenue from village construction projects, he explained.
And once it is fully up and running, the improved wastewater system will be able to filter out phosphorus to 1 milligram per liter and nitrogen down to 11.4 milligrams per liter, Hamby said. This is even stricter than the state’s limit of 1.75 milligrams of total phosphorus per liter at the 95th percentile (or 95% level of all samples taken in a given year) and 14 milligrams per liter of total inorganic nitrogen for new treatment plants.
Utilizing aerobic and anaerobic bacteria, the wastewater moves between plants through various aeration tanks, clarifiers, filters, UV disinfecting light and eventually out to Brush Creek. The predominately biological nutrient removal process will take around three days from start to finish and have a multitude of automated data collection and monitoring in place along the way to ensure it all runs smoothly.
“The idea of the process is we go from no air, to very, very little air, to a lot of air … that helps grow different types of bacteria. Different steps get you different nutrient removal,” Fineran explained.
Fineran and Hamby said the type of treatment plant and refined process isn’t unprecedented, but that the district was able to carry out the $3.5 million worth of improvements to the current plant in-house, or without any outside contractors to do the work — a feat the three men are proud of and a part of the district’s cost-effective philosophy.
For a few days in August 2015, invisible mining pollutants could be seen by the world
Five years ago today, a breach at the Gold King Mine north of Silverton sent a deluge of water loaded with heavy metals into the Animas River, turning the waterway an electric-orange hue that caught the nation’s attention.
But five years later, and four years into the Environmental Protection Agency’s Superfund cleanup program, there has yet to be meaningful improvements to water quality and aquatic life.
Dan Wall, with the EPA’s Superfund program, said most of the focus since the Bonita Peaking Mining District Superfund site was declared in fall 2016 has been on studying the watershed and the multitude of mines impacting water quality.
The EPA is still in that effort, Wall said, and there’s no time frame for when the agency will present its final work plan for a comprehensive cleanup in the Animas River basin.
The EPA has spent more than $75 million on the site to date.
“It may be slower than what people want,” Wall said. “But we want to make sure our remedy selection is based on science … so the money won’t be wasted and we can be confident to see improvements based on the work we take.”
The stretch of the Animas River between Silverton and Bakers Bridge, about 15 miles north of Durango, is virtually devoid of aquatic life. Fish populations in the river through Durango are unable to reproduce, in part because of heavy metal contamination. And, years ago, the city of Durango switched its main source of water to the Florida River because of quality issues in the Animas.
The Animas River Stakeholders Group formed in 1994 and brought together a coalition of local, state and federal agencies, as well as mining companies and interested people, who sought to improve the health of the river amid heavy metal loading from legacy mines.
Despite the many Stakeholders Group successes, water quality in the Animas River in recent years has diminished, mainly from the mines leaching into one of the river’s tributaries, Cement Creek.
In 2014, the EPA decided pollution had gotten so bad that it stepped in with a $1.5 million cleanup project of its own…
Despite millions of dollars in claims, no one was reimbursed for their losses after the EPA claimed governmental immunity. A lawsuit still lingers in the federal courts from those seeking to recoup costs.
But ultimately, the Animas River did not appear to be too adversely impacted – the spill did not cause a die-off of fish, and long-term studies have shown little to no effect on aquatic life or the waterway…
What the spill did accomplish was to highlight the legacy of mines chronically contaminating the Animas River: The amount of metals released from the Gold King Mine spill is equal to that released every 300 days from all the mines around Silverton.
After years of the possibility of the EPA’s Superfund program stepping in, it became official in fall 2016, with the agency singling out 48 mining-related sites set for some degree of cleanup…
Immediately after the Gold King Mine spill, the EPA built a $1.5 million temporary water treatment plant that takes in discharges from the mine and removes metals, which costs about $2.4 million to $3.3 million a year to operate.
But other than some minor projects around the basin, the EPA has focused on studies to better understand the complex mining district, and evaluate what long-term options would be best for cleanup.
The EPA is set, remedial project manager Robert Parker said, to make stronger headway on a quick action plan to address about 23 mining sites over the next few years while longer-term solutions are being examined.
After both fires, drinking water tests revealed a plethora of acutely toxic and carcinogenic pollutants. Water inside homes was not safe to use, or even to treat. Water pipes buried underground and inside of buildings were extensively contaminated.
We are environmentalengineers who help communities affected by disasters, and supported responses to both fires. As we conclude in a recently published study of burned areas, communities need to upgrade building codes to keep wildfires from causing this kind of widespread contamination of drinking water systems.
Wildfires and water
Both the Tubbs and Camp fires destroyed fire hydrants, water pipes and meter boxes. Water leaks and ruptured hydrants were common. The Camp Fire inferno spread at a speed of one football field per second, chasing everyone – including water system operators – out of town.
Firefighting can accelerate the spread of contamination. As emergency workers draw hydrant water, they spread contaminated water through the water pipe network.
Metal, concrete and plastic pipes can become contaminated. Many plastics take up these chemicals like sponges. As clean water later passes through the pipes, the toxic substances leach out, rendering the water unsafe.
In the Tubbs and Camp fires, chemicals in the air may have also been sucked into hydrants as water pipes lost pressure. Some water system plastics decomposed and leached chemicals directly into water. Toxic chemicals then spread throughout pipe networks and into buildings.
Limited water testing by state and local agencies showed benzene and naphthalene were present at levels that could cause immediate harm. These, as well as methylene chloride, styrene, toluene and vinyl chloride exceeded longer-term regulated exposure limits. Many of these chemicals cause cancer. All can cause vomiting, diarrhea and nausea after short-term high concentration exposure.
Anyone who drinks the water containing these substances could be harmed. And simply running a faucet could cause chemicals to enter the air. Hot showers and boiling water would vaporize the chemicals and increase the dose a person breathed in. Some of these substances can also be absorbed through the skin.
Dangerous contamination levels
Benzene was found at concentrations of 40,000 parts per billion (ppb) in drinking water after the Tubbs Fire and at more than 2,217 ppb after the Camp Fire. According to the California Office of Environmental Health Hazard Assessment, children exposed to benzene for a single day can suffer harm at levels as low as 26 ppb.
The U.S. Environmental Protection Agency recommends limiting children’s short-term acute exposure to 200 ppb, and long-term exposure to less than 5 ppb. The EPA regulatory level for what constitutes a hazardous waste is 500 ppb.
In early 2019, California conducted contaminated water testing on humans by taking contaminated water from the Paradise Irrigation District and asking persons to smell it. The state found that even when people smelled contaminated water that had less than 200 ppb benzene, at least one person reported nausea and throat irritation. The test also showed that water contained a variety of other benzene-like compounds that first responders had not sampled for.
The officials who carried out this small-scale test did not appear to realize the significance of what they had done, until we asked whether they had had their action approved in advance by an institutional review board. In response, they asserted that such a review was not needed.
In our view, this episode is telling for two reasons. First, one subject reported an adverse health effect after being exposed to water that contained benzene at a level below the EPA’s recommended one-day limit for children. Second, doing this kind of test without proper oversight suggests that officials greatly underestimated the potential for serious contamination of local water supplies and public harm. After the Camp Fire, together with the EPA, we estimated that some plastic pipes needed more than 280 days of flushing to make them safe again.
Building codes could make areas disaster-ready
Our research underscores that community building codes are inadequate to prevent wildfire-caused pollution of drinking water and homes.
Installing one-way valves, called backflow prevention devices, at each water meter can prevent contamination rushing out of the damaged building from flowing into the larger buried pipe network.
Adopting codes that required builders to install fire-resistant meter boxes and place them farther from vegetation would help prevent infrastructure from burning so readily in wildfires. Concrete meter boxes and water meters with minimal plastic components would be less likely to ignite. Some plastics may be practically impossible to make safe again, since all types are susceptible to fire and heat.
Water main shutoff valves and water sampling taps should exist at every water meter box. Sample taps can help responders quickly determine water safety.
The smell test doesn’t work
Under no circumstance should people be told to smell the water to determine its safety, as was recommended for months after the Camp Fire. Many chemicals have no odor when they are harmful. Only testing can determine safety.
Ordering people to boil their water will not make it safe if it contains toxic chemicals that enter the air. Boiling just transmits those substances into the air faster. “Do not use” orders can keep people safe until agencies can test the water. Before such advisories are lifted or modified, regulators should be required to carry out a full chemical screen of the water systems. Yet, disaster after disaster, government agencies have failed to take this step.
While infrastructure is being repaired, survivors need a safe water supply. Water treatment devices sold for home use, such as refrigerator and faucet water filters, are not approved for extremely contaminated water, although product sales representatives and government officials may mistakenly think the devices can be used for that purpose.
To avoid this kind of confusion, external technical experts should be called in assist local public health departments, which can quickly become overwhelmed after disasters.
Preparing for future fires
The damage that the Tubbs and Camp fires caused to local water systems was preventable. We believe that urban and rural communities, as well as state legislatures, should establish codes and lists of authorized construction materials for high-risk areas. They also should establish rapid methods to assess health, prepare for water testing and decontamination, and set aside emergency water supplies.
Wildfires are coming to urban areas. Protecting drinking water systems, buried underground or in buildings, is one thing communities can do to prepare for that reality.
Click here to score a copy of the paper (William J. Raseman, Joseph R. Kasprzyk, R. Scott Summers, Amanda K. Hohner, and Fernando L. Rosario-Ortiz). Here’s the abstract:
This paper introduces a novel decision-making framework for the optimization of water treatment plant operations. Managers at water utilities face increasing tensions between cost, public health risk, public perception, and regulatory compliance. Multi-objective optimization techniques have been developed to generate innovative solutions to environmental problems with competing objectives. By integrating these optimization techniques with water quality scenarios, water treatment modeling, and interactive visualization, our framework enables water managers to choose among an ensemble of optimal treatment operations. By automating the generation of treatment options, this paradigm represents a shift toward exploration and insight discovery in drinking water decision making. To illustrate this framework, we create a disinfection byproduct (DBP) management problem that incorporates the influence of competing risks and cost objectives on decision making. Using data from the Cache la Poudre River—a source water in Colorado with seasonally-varying water quality—and a hypothetical conventional treatment plant, we evaluate the impact of organic carbon increases on the performance of optimal treatment operations. These results suggest that the hypothetical utility should consider infrastructural improvements if organic carbon concentrations increase more than approximately 25% of maximum historical levels. An interactive exploration of the optimization results reveal to what extent there are tradeoffs between solids handling costs, chemical costs, and DBP exposure. A k-means clustering of these data illustrates that the utility can achieve compliance through a variety of treatment strategies depending on decision maker preferences for cost and risk.
More frequent, longer-lasting blooms can harm both wildlife and human health — and even kill. Can we learn to predict and prevent them?
From the fall of 2017 to the beginning of 2019, Florida endured a persistent and damaging algal bloom caused by the algae Karenia brevis, also known as red tide. The blooms formed in both Gulf and Atlantic waters, sickening people, killing birds, fish, dolphins, manatees and other marine animals, and driving visitors away from beach towns.
Scientists say it’s a problem that’s going to get worse — and not just in Florida. Harmful algal blooms, which can occur in both fresh and marine waters, are becoming more frequent, lasting longer, and occurring in more places. In recent weeks news reports have warned residents in western New York, Utah and California to stay out of rivers and lakes clouded with these microscopic organisms that can sometimes be fatal to people, pets and wildlife.
To be clear, not all algae are dangerous. In fact the vast majority are beneficial to ecosystems. They’re the base of the marine and aquatic food webs, providing nutrients for fish and shellfish, which in turn feed other animals — including people. They also produce half of our oxygen.
“But a small handful of these organisms are harmful,” says phytoplankton ecologist Pat Glibert of the University of Maryland Center for Environmental Science.
We spoke with Glibert about this tiny — but dangerous group — of algae, why they’re becoming more problematic, and what we can do to protect people and ecosystems.
When algae are deemed to be harmful, what is it that they’re harming and how?
Some algae can grow to levels that just create a nuisance. They can overwhelm the system and when they die, their decomposition uses up oxygen, causing dead zones in the sea or fresh waters.
In the case of red tides — named because they visibly color the water a red or sometimes brownish color — their growth reduces the light penetration in the water. So the organisms that live near the bottom, such as sea grasses, are harmed, and the organisms that depend on that bed of grass in the water are also harmed.
But some of these species actually make toxins that can cause fish kills or harm to other marine organisms. And they can also cause harm for humans when we consume the fish or shellfish that has consumed these organisms.
These harmful algal blooms can occur all over. What are the regional differences in the kind of algae and their potential harm?
In marine waters we are primarily concerned with a group of organisms called dinoflagellates. And in fresh waters, the major organisms of concern fall in a category called cyanobacteria. They make very different toxins and have very different effects both environmentally as well as with regard to human health.
The freshwater toxins are concerning for a number of reasons. On initial exposure one may have a skin rash or something uncomfortable that’s relatively mild. But they can get into drinking water and, over a long period of exposure, they are tumor promoters. We know liver cancer is associated with these toxins, and there’s increasing evidence that the freshwater toxins can also be associated with neurological diseases such as Alzheimer’s, Parkinson’s or ALS. There’s a lot of work going in right now to understand that relationship.
In marine waters we’re typically exposed to toxins through shellfish. The shellfish themselves are not affected by these toxins because a lot of them affect the nervous system and shellfish don’t have a nervous system. But shellfish can accumulate the toxin. One of the diseases that we are very concerned about comes from saxitoxin, which is most common if one is eating mussels. It’s from the dinoflagellate Alexandrium and it can cause paralytic shellfish poisoning. It results in respiratory paralysis. With a high enough dose people do die.
A different toxin is the Florida red tide. That toxin can become aerosolized. If people breathe that sea spray at the beach it can cause respiratory distress, including coughing. Many people can end up going to the hospital, but people aren’t likely to die from it. The other thing that many of the toxins cause is an upset stomach that may take a couple of days to get over, but people do recover.
What about the effects on wildlife?
That depends on the species of algae. But some things like Karenia brevis in Florida are indiscriminate killers. Fish, turtles, manatees are all affected.
In California there’s a toxic diatom species, Pseudo-nitzschia, and it seems to affect sea lions and other large marine organisms. They tend to show symptoms very similar to epilepsy and disorientation. Death is one end point, but there are many other impacts on these organisms as well.
What’s driving the growth of these harmful algal blooms?
We certainly know that blooms are increasing in frequency, in geographic extent, and in duration in many parts of the United States and the world. A lot of this is due to the fact that we are polluting these waters with nutrients — nitrogen and phosphorus runoff from the land.
Nutrient pollution can come from wastewater, whether it’s discharged from municipal sewage treatment plants or from septic systems. We don’t always do an adequate job, in many places, of removing those nutrients.
That’s one source. A second is runoff from fertilizer application, particularly from agricultural use, but we use a lot of these fertilizers on our lawns, golf courses and gardens as well.
And then there’s the waste from concentrated animal feeding operations, whether it’s chickens or pigs or dairy. A lot of that waste is either held in lagoons and ultimately spread on land. Or it goes into the atmosphere and then comes down with rain. So these operations themselves are highly concentrated sources of pollution that end up in waterways.
The other issue is that the climate is changing. Waters are getting warmer. Many organisms grow better when waters are warmer. That’s true for some of these [algae] species.
But because of climate change we’re also seeing changes in precipitation. We’re having more storms in some areas, more hurricanes, and because the atmosphere is now warmer, when those hurricanes do develop, they are often holding more moisture. So hurricanes become wetter. That means that the rain that comes with these storms washes more of these nutrients into the sea.
What can we do to reduce these blooms?
This is a very difficult problem to solve. The ultimate solution is to try to reduce nutrients that are winding their way into our fresh and marine waters.
At a personal level, we can reduce the amount of nutrient fertilizer we put on our own lawns, but the pollution that comes from the concentrated animal operations, from municipal sewage and from crop agriculture are the big issues that we have to solve. And they’re going to be very difficult to solve because we have to continue to grow our food.
There are approaches that people are taking to try to address blooms at the time that they occur, methods to apply various products to reduce the bloom. There is some success in applying clay to the surface of the water that causes the dinoflagellates to fall to the bottom of the bay or estuary. But those are very localized solutions.
The other approach that we are taking is to build mathematical models of when and why and where a bloom may occur and use that as an early warning system. So we may not be able to solve the problem, but at least we can protect human health or seafood resources before a problem occurs.
There are also a number of exciting areas of research. One is my own, which focuses on understanding these organisms from their physiology — how they obtain their nutrients, how they make toxins, why they make toxins. How is nutrient pollution related to not only growth of the algae but production of their toxin?
Also the other area that I think is so exciting is really pulling all of these factors together in building predictive models and using models to ask questions of “what if we did this, what would it show”? Or “what if we did that, what would be that effect”? We’re making great progress, but the problem is still a very large one.
Has our response to the problem matched the scale of what’s needed and the urgency of the issue?
It always seems to be in the forefront at the time there’s a bloom. And then as soon as that bloom subsides, the public interest and the interest in solving the problem go away.
Clearly we need more money to address issues of nutrient pollution. We need to upgrade sewage treatment plants. We need to address the fact that so much of the country still depends on septic systems or very small “package plant” [treatment systems] that do nothing to reduce nutrients.
The issue of concentrated animal waste is enormous because the animal waste isn’t treated and does make its way into the environment by land or sea or atmosphere, and ultimately gets discharged into waterways.
We need more attention on those issues. We need more attention on developing preventative measures. We need to have more approaches to protect human health from these events because they are going to be increasing.
The outlook is for more blooms and longer blooms in more places if we don’t address all of these problems of nutrient pollution and climate change collectively.
Tara Lohan is deputy editor of The Revelator and has worked for more than a decade as a digital editor and environmental journalist focused on the intersections of energy, water and climate. Her work has been published by The Nation, American Prospect, High Country News, Grist, Pacific Standard and others. She is the editor of two books on the global water crisis.
Here’s the release from the Environmental Protection Agency:
New grant program continues implementation of…Administration’s Federal Action Plan to Reduce Childhood Lead Exposure
(July 30, 2020) — Today, the U.S. Environmental Protection Agency (EPA) announced a new grant program to help protect children in tribal communities from lead in drinking water at schools and childcare facilities. With this action, the agency is continuing to make meaningful progress under the Trump Administration’s Federal Action Plan to Reduce Childhood Lead Exposures by engaging with tribes and working to protect childrens’ health in these underserved communities.
“Protecting children in tribal communities from lead in drinking water is a priority for the Trump Administration and EPA,” said U.S. EPA Administrator Andrew Wheeler. “This new funding helps tribes further reduce lead in drinking water by boosting testing for lead in schools and childcare centers. This, in turn, will increase the health and wellbeing of the coming generation.”
Authorized by the Water Infrastructure Improvements of the Nation (WIIN) Act, EPA is making $4.3 million available to support the Lead Testing in School and Child Care Program Drinking Water Tribal Grant Program. Grantees will use the EPA’s 3Ts for Reducing Lead in Drinking Water guidance to implement lead testing programs and develop monitoring, maintenance and/or sampling plans that protect children from lead exposure now and in the future. Beneficiaries of the program must be members of a federally-recognized tribe. EPA will host a webinar in August to provide more information about the 3Ts toolkit and an overview of the grant and its scope.
While the U.S. has made tremendous progress in lowering children’s blood lead levels, some children are still exposed to high levels of lead. In December 2018, EPA with other federal partners announced the Federal Action Plan to Reduce Childhood Lead Exposures. Today’s announcement continues the agency’s significant progress in implementing this plan.
Project needs approval from Sunnyside Gold, a company potentially on hook for costs
It appears the Environmental Protection Agency has found a place for long-term storage of mine waste near Silverton.
The EPA announced this week it is proposing a waste repository for the Bonita Peak Mining District Superfund site on top of the existing tailings impoundment near the Mayflower Mill, about 2 miles northeast of Silverton off County Road 2.
The site, EPA officials say, would serve as a long-term option to store waste that is generated from Superfund cleanup actions, as well as sludge from the water treatment plant that takes in discharges from the Gold King Mine.
“It’s going to be there for the long haul to accommodate any waste we’ll need to remove,” said Christina Progess, the EPA’s lead for the Superfund site.
The proposal comes with one caveat, however: The property is owned by Sunnyside Gold Corp. The EPA has asked for approval from Silverton’s last operating mining company and has yet to hear back.
Gina Myers, a spokeswoman for Sunnyside Gold, said in an email to The Durango Herald that “SGC … had previously offered EPA the use of Mayflower ground for storage of sludge from the underutilized treatment plant.”
Myers did not clarify whether Sunnyside Gold will allow EPA access or not.
The need for a centrally located, permanent dump site for mine waste has been an ongoing issue for EPA ever since the Superfund was declared in fall 2016, about a year after the agency triggered a blowout at the Gold King Mine.
The water treatment plant constructed after the blowout generates up to 6,000 cubic yards of sludge a year – or about a football field buried in 3 feet of muck – and there’s little room on-site for storage. And in the future, the EPA will need a place to take waste removed from other projects…
In August 2019, Sunnyside Gold offered the EPA access to its property at the Mayflower tailings repository, a large series of four impoundments of historic mine waste rock that operated until the early 2000s.
“(The site) is an ideal and proven site for a repository for the water-treatment plant, and, in the interest of good faith and improving water quality, SGC has granted EPA access for this evaluative work,” the company said at the time.
Progess said the EPA sent Sunnyside Gold a consent for access request and hopes to hear of a final decision by mid-August…
If access were granted, the EPA would start a phased approach at the Mayflower tailings, Progess said. A liner would be placed on top of the existing piles for the new waste, which would then be capped.
All told, the EPA’s plan would have the capacity to store up to 609,000 cubic yards of mine waste and sludge. Use of the site, however, would vary year to year, depending on current projects and need…
The Mayflower tailings are suspected of leaching heavy metals into the Animas River, which has prompted Sunnyside Gold to conduct its own multi-year investigation into the matter.
Progess said the investigation remains ongoing, and the EPA would use a different, more stable location at Impoundment 1 on the site to store its waste to begin with. She said leaching is suspected at Impoundment 4.
“We feel comfortable starting the work at Impoundment 1,” she said. “That will allow us years of use while the investigation on Impoundment 4 can continue.”
The public can comment on the proposed plan until Aug. 27. A virtual public hearing will be held at 6 p.m. Aug 11.
Progess said the EPA hopes to have the site constructed and ready for use by fall 2021, about the time storage at the water-treatment plant for the Gold King Mine is expected to reach capacity.
The Colorado Department of Public Health and Environment has registered more than 100 waterbody segments on its impaired waters list due to alarmingly high E. coli levels
…public health officials are taking this fecal bacterium quite seriously, as summer temperatures make Colorado’s waterways ideal breeding grounds for Escherichia coli. Policymakers and scientists across the state are working to decipher which types of microbes are lurking in the water, and whether they actually pose a significant threat to human health…
100 waterways considered “impaired” by E. coli
The Colorado Department of Public Health and Environment has registered more than 100 waterbody segments on its impaired waters list due to alarmingly high E. coli levels. While only certain strains of E. coli cause illness in humans, officials do not yet have the capacity to pinpoint in any real-time fashion where and when these strains congregate.
Among the newest segments on the list is the stretch of Boulder Creek between the mouth of Boulder Canyon and 13th Street…
Prior to the latest update in January, the CDPHE had considered only the portion from below 13th Street to its confluence with South Boulder Creek to be impaired…
The city of Boulder isn’t sure where the contamination is coming from, but a team led by Candice Owen, the stormwater quality supervisor, is trying to figure it out. She and her team will be taking more frequent dry weather discharge samples toward the end of the recreation season, when E. coli concentrations are typically highest, she said. The city also recently began posting precautionary signs along the creek, in English and Spanish, indicating the periodic presence of bacteria…
The CDPHE’s Monitoring and Evaluation list, or M&E list, includes waterways in which two, three, or four water samples have exceeded the EPA’s recreational-waters standard of 126 colony-forming units (cfu) per 100 milliliters. For more serious violations, in which there is “overwhelming evidence” of contamination, waterways end up on the state’s list of impaired waters, officially known as 303(d). The Water Quality Control Division defines overwhelming evidence as exceeding water quality standards by more than 50%.
While EPA standards consider recreational waters to be impaired if E. coli levels exceed 126 cfu per 100 mL – as opposed to 235 cfu per 100 mL necessary for swim beach closures – the CDPHE warns that risk of becoming ill still exists in these waters.
CDPHE recommends that people take precautions if they choose to swim in impaired waterways, mainly by avoiding swallowing water and washing their hands upon exiting. To minimize further contamination of the waterways, the department advises showering before entering, taking children on frequent bathroom breaks and staying out of the water when ill with gastrointestinal symptoms…
Boulder Creek is far from alone in its E. coli problems – with quite a formidable competitor at Confluence Park in Denver, where the South Platte River and Cherry Creek come together.
When storm drains undergo flushing or sediment in streams is stirred up, so, too, are the E. coli lurking in these spaces, explained Jon Novick, environmental administrator at the Denver Department of Public Health and Environment. Like Owen, Novick said pinpointing the bacteria’s exact sources is difficult, but he noted that raccoons congregate near the park and homeless individuals also camp along the river…
…Denver has launched a number of initiatives aimed at tackling the problem – particularly within the stormwater outfalls where “urban drool,” like irrigation return flows and other untreated water tends to accumulate, Novick said. For example, he said, the city has installed UV filtration systems that are quite effective in eliminating E. coli from sewage during dry weather…
Confluence Park samples collected on July 14 indicated that E. coli levels were above recreational standards at both the Cherry Creek and South Platte River testing sites, which Novick attributed to that day’s storm. The Cherry Creek spot is typically the greater offender of the two, due to its shallow water level, sandy bottom and shaded environment, he said…
Nonetheless, Novick acknowledged that officials don’t really know whether exposure to E. coli in impaired waters actually leads to illness. Public health agencies do not typically survey bathers to find out if swimming in the creek has made them sick, he said.
“At least with the smog, you can see it. With the flaring, we can see it,” said [Ean Thomas] Tafoya. “I would say average people aren’t really aware as much about water pollution because it’s something that’s invisible.”
What concerns Tafoya is recent evidence Suncor is emitting high levels of per-and poly-fluoroalkyl substances, or PFAS, into Sand Creek…
Since last summer, Suncor has complied with a state directive to test treated groundwater it pumps into Sand Creek for the chemicals. A letter state regulators sent to the company show the effluent often had PFAS concentrations far exceeding what the EPA recommends for safe drinking water.
According to one test from January, the levels of PFOS and PFOA, two of the best understood PFAS, combined to 199 parts per trillion. That’s almost three times the federal health advisory of 70 parts per trillion. It’s seven times more than stricter levels recently adopted in New Hampshire…
The refinery’s problems with water pollution date back to the 1990s. Due to hydrocarbon spills and benzene pollution, the company began to pump up groundwater, treat it and release it into Sand Creek…
While the presence of PFAS in that water has not been reported until now, it was not a huge surprise to state regulators at the Colorado Department of Public Health and Environment. The refinery has long practiced firefighting at an onsite location. In a statement, spokesperson Erin Rees said the company believes the chemicals in groundwater comes from the historic use of Class B firefighting foam. She added the company has since replaced the foam with a new product in line with EPA recommendations…
The news also follows a statewide survey commissioned by the legislature, which identified Suncor as a forever-chemical hotspot. The state conducted tests of 24 wells at the refinery between October 2018 and May 2019. The results found concentrations almost 150 times above the EPA health advisory.
That same survey included tests of surface water across the state. The only place where levels exceeded the threshold of 70 parts per trillion was the mouth of Sand Creek, just below Suncor…
After finding such high concentrations, Dani said the state worked with local health officials to reach nearby homes with shallow groundwater wells. The campaign, conducted in English and Spanish, offered residents free PFAS tests. According to Dani, the results show “we don’t have anyone drinking water above the health advisory.”
Kipp Scott, the manager of the South Adams County Water & Sanitation District, said the same can be said for municipal tap water. His system supplies water to more than 60,000 people in Commerce City and other parts of southern Adams County.
The district has worked to control PFAS in its water supply since 2018 when it found high concentrations in a dozen wells near I-270 and Quebec. The district disconnected three of the wells and purchased supplies from Denver Water to dilute what it sent to customers…
Following the incident, Scott said his district improved its water treatment practices and launched programs to conduct regular tests of the chemicals. Those results show water now sent to customers contains about 25 parts per trillion for PFOS/PFOA, below the health advisory.
Scott added he’s “reasonably sure” forever chemicals from Suncor aren’t affecting the water supply of its neighbors. That’s because most of the water supplied to the district comes from wells sunk into a different branch of the alluvial aquifer running beneath the district. Based on groundwater models, he said he has no reason to believe the chemicals at Suncor have reached the water supply.
Still, the water in Sand Creek does join the South Platte, which flows through Colorado into Nebraska. Water districts downstream from Commerce City use the river to grow crops and supply drinking water.
A Coming Crack Down
Even if forever chemicals from Suncor aren’t affecting drinking water, it will likely affect the company.
Last week, the Colorado Water Quality Control Commission adopted the state’s first-ever limits on forever chemicals. The new policy was pushed ahead in the absence of federal regulation, which has lagged under complex EPA rulemaking and inaction from Congress. It allows the state to set limits for the chemicals in wastewater permits in line with the federal health advisory. If a company or wastewater district exceeds the limit, it could require water treatment or issue fines of up to $54,000 per day.
Meg Parish, permit section manager for the Water Quality Control Division, said Suncor’s permit is up for renewal next year and would be subject to the new policy…
Rees, the spokesperson for Suncor, said the company is already exploring PFOS/PFOA treatment options as a part of its general efforts to improve water coming from the Commerce City facility…
But the commitment from Suncor doesn’t put Olga Mijares at ease. The school administrator lives near the refinery and raised her three children in Commerce City. Like most people in the largely Latino community, she doesn’t drink the tap water but showers and cooks with it.
Her oldest son, who is 29 years old, has already battled thyroid and brain cancer. She said a doctor told her she would never know what was behind the conditions and to put it out of her mind, if possible. She said that gets a lot harder when she learns about any new pollution near her home.
It’s fitting that President Trump invoked an interstate highway expansion in Atlanta last week to announce final rules that, if they survive the inevitable legal challenges, will undermine one of the nation’s bedrock environmental laws, the National Environmental Policy Act. American voters face a fork in their own road this November — stay on the Trump expressway to environmental degradation and catastrophic climate change, or shift to the road, bumpy as it may be, to a cleaner environment and more sustainable future of wind, solar and other energy sources that do not involve burning fossil fuels.
The COVID-19 pandemic understandably has seized the nation’s attention, but that hasn’t lessened the risk we all face from air and water pollution and carbon-fed global warming. Trump has unabashedly sought to dismantle federal regulatory structures to speed up construction projects while forging a national energy plan based on producing and burning fossil fuels.
His embrace of the oil, gas and coal industries defies the global scientific consensus that burning fossil fuels emits greenhouse gases that make the Earth less habitable by warming the atmosphere, feeding stronger and more frequent storms, triggering devastating droughts that propel human migration, and pushing up sea levels so that they encroach on cities and other human settlements. In fact, the National Oceanic and Atmospheric Administration reported last week that unusually high tides led to record flooding among one-quarter of Atlantic and Gulf Coast communities where the agency maintains tide gauges. Climate change is no dystopian vision of the future; it is here.
Trump’s efforts to eviscerate regulatory oversight of the environment is rooted in his belief that regulations are for the most part unnecessary hurdles to economic progress. He bewails the amount of time it takes for projects to clear environmental reviews and related court challenges, adding what, in his mind, are unnecessary costs and delays. To be honest, he may have something there. NEPA came into being five decades ago — signed into law by President Nixon — and it’s not out of line to suspect that there are places where the law and the regulations that arose from it could use some reasonable revising. But Trump and his industry-connected advisors are not the ones to trust with such a task.
These new rules are not reasoned updates. By requiring environmental impact analyses to be completed within two years (now they often take twice that), the administration seeks to cut short the consideration of those most affected by major projects — often people of color and low-income households — and disarm the environmental activists fighting to ensure that necessary environmental protections are respected. The rules also would require regulators to no longer weigh the cumulative effects of a proposed project and limit their review to effects “that are reasonably foreseeable” and “have a close causal relationship” to the work being done. So, for example, a proposed project’s emissions could not be added to those of other nearby emitters to determine whether their cumulative impact creates an excessive burden on a specific community.
Separately, the Government Accountability Office reported last week that the administration tweaked the formula for measuring the “social cost of carbon” so that estimates of the potential harm from emissions are seven times lower than they used to be. It’s foolhardy — and dangerous — to look at environmental impacts through such a narrow lens.
Meanwhile, presumptive Democratic nominee Joe Biden, after lengthy negotiations with progressive environmentalists who had backed Sen. Bernie Sanders (I-Vt.), released a $2-trillion plan for quickly shifting the nation from its reliance on fossil fuels to renewable sources.
It’s not the controversial “Green New Deal” that progressives have been pushing, but it’s in the neighborhood. Getting such a measure through Congress even if both chambers were controlled by Democrats would be no easy task, but Biden’s proposal at least recognizes the dire future we all face if the nation — and the world — do not fundamentally alter how we produce and consume energy.
The world cannot afford to backslide on environmental protections and the all-important fight to mitigate the worst effects of climate change. Yes, jobs are important, but survival more so. The errors and consequences of the past are crystal clear. The question is, will we heed those lessons?
FromBloomberg Law (Ellen M. Gilmer, Stephen Lee, and Jennifer A. Dlouhy):
States and environmental coalitions are set to wage multiple challenges to President Donald Trump’s overhaul of federal requirements for environmental permitting, setting up long-term regulatory uncertainty and the potential for a checkerboard of rules across the country.
Trump unveiled the plan Wednesday, replacing Nixon-era rules for how federal agencies conduct reviews under the National Environmental Policy Act. The changes are aimed at streamlining permitting timelines for major projects down to two years, Trump said in public remarks in Atlanta…
Yet the move poses risks for developers and federal agencies alike. Congress hasn’t rewritten the requirements in the underlying, 50-year-old environmental law, and streamlined reviews that fall short of its mandates could be struck down in court.
“Even though the president has said that he wants to make this process more efficient and effective, it’s going to make it even worse, because it’s going to create more litigation and uncertainty,” said Sharon Buccino, senior director of the lands division at the Natural Resources Defense Council. “The controversy and the confusion around these projects is going to increase, rather than decrease.”
The administration’s critics are already sharpening their legal tools, vowing courtroom fights over how the White House’s Council on Environmental Quality crafted the new regulation.
Congratulations to friend of Coyote Gulch, Grace Hood.
Here’s the release From the University of Colorado:
The Center for Environmental Journalism is proud to welcome its 24th class of Ted Scripps Fellows, who will spend nine months at the University of Colorado Boulder’s College of Media, Communication and Information working on long-term, in-depth journalistic projects and reflecting on critical questions.
The group brings a depth of experience across a range of media, with backgrounds covering local issues as a public radio reporter and a photojournalist, overseeing a non-profit news organization and a science magazine, and reporting abroad as a Moscow correspondent.
“We’re thrilled to welcome these incredibly accomplished journalists to the Center for Environmental Journalism,” said Tom Yulsman, CEJ director. “We gain as much from their presence as they do from spending a year at the university.”
Stacy Feldman, co-founder of InsideClimate News (ICN), a Pulitzer Prize-winning non-profit news organization providing reporting and analysis on climate change, energy and the environment. Serving as executive editor from 2015 to 2020, she’s spent the past 13 years helping to build and lead ICN as it transformed from a two-person startup to an operation with nearly 20 employees and a model for national and award-winning non-profit climate journalism.
As a fellow, she plans to study new approaches to local journalism that could help people connect environmental harm and injustice to their own health and their communities’ well-being.
Grace Hood, who has covered water, science and energy topics across the American southwest as Colorado Public Radio’s environment and climate reporter since 2015. Throughout more than a decade in public radio, she’s profiled octogenarian voters worried about climate change, scientists tracking underground mine fires, a visually impaired marijuana farmer and a homeowner who lives next door to Colorado’s first underground nuclear fracking experiment.
As a fellow, she plans to study how cities and states monitor air quality near oil and gas sites. She has a particular interest in the rise of citizen science when it comes to measuring air pollution across the West.
Alec Luhn, an independent journalist with a focus on the changing communities and ecosystems of the far north. Previously a Moscow correspondent for The Guardian and The Daily Telegraph, he’s been published in The Atlantic, GQ, The Independent, MAXIM, The Nation, The New York Times, POLITICO, Reuters, TIME, Slate and WIRED, among others. During a decade abroad, he’s reported from the coldest permanently inhabited place on earth and covered the conflict in eastern Ukraine, annexed Crimea, war-torn Syria and Chernobyl reactor four, as well as covering oil spills, permafrost thaw, reindeer herding, polar bear patrols, Gulag towns and the world’s only floating nuclear power plant in the Arctic.
As a fellow, he plans to study how climate change and resource extraction are altering the fragile environment of the north, with deep repercussions for reindeer and caribou and the indigenous peoples that depend on them.
Amanda Mascarelli, managing editor of Sapiens, an award-winning digital magazine that covers anthropology and archaeology for the general public. She has led the publication since before its 2016 launch and has overseen the production of hundreds of stories on topics including Holocaust archaeology, schizophrenia, fracking, cultural appropriation, and, most recently, the COVID-19 pandemic. Previously, she spent more than a decade as a freelance science journalist specializing in health and the environment. She’s been published by outlets including Audubon, Nature, New Scientist, Science, Science News for Students and The New York Times and worked as a health columnist for the Los Angeles Times and The Washington Post.
As a fellow, she will study the social inequalities of health in vulnerable communities in the Denver metro region and elsewhere in Colorado, with an eye to exploring the health and social impacts of industrial expansion, fossil fuel extraction, and a planned massive urban redesign.
RJ Sangosti, who has been a photojournalist at The Denver Post since 2004, where he’s covered events spanning from Hurricane Katrina to presidential elections. Over more than a decade, he has documented the people and landscape of eastern Colorado, where years of drought and a loss of agricultural earning power continue to hurt farmers. Most recently, he completed a story about a Denver neighborhood in one of the country’s most polluted urban zip codes, whose residents continue to be impacted by a huge interstate construction project. His work was included in the 2012 Time Magazine top 10 photos of the year, and he was honored to be part of the 2016 jury for the centennial year of The Pulitzer Prizes.
As a fellow, he will report on the effects pesticides and fertilizers have on aquifers and groundwater, and he hopes to gain new skills in research and writing.
FromColorado Politics (Marianne Goodland) via The Colorado Springs Gazette:
The Colorado Water Quality Control Commission, part of the Colorado Department of Public Health and Environment, announced Wednesday the approval of a new policy to reduce the use of perfluoroalkyl and polyfluoroalkyl substances — also known as PFAs, a chemical found in firefighting foam.
Among the most serious problems caused by PFAs in Colorado: contaminated well water supplies in El Paso County, most notably in the Widefield aquifer that serves the communities of Fountain, Widefield and Security.
The policy “will provide the department with clear guardrails for setting wastewater discharge permit limits on the chemicals released into local waterways. It also provides time for city and county wastewater treatment plants to work to reduce the chemicals from industries that use them and that discharge their wastewater with these chemicals into local sewer systems,” according to a CDPHE statement…
…delays by the EPA in developing a standard for surface or groundwater limits on PFAs has now prompted the state’s water quality commission to take action of its own. The new policy has been in the works since February.
It’s not without its detractors, including a nine-member group known as AF CURE (the Arkansas Fountain Coalition for Urban and River Evaluation). That group includes Colorado Springs Utilities; the sanitation districts for Fountain, Security and Widefield; and the Tri-Lakes water district. The group claimed the policy is more stringent than existing state policy on groundwater standards and would control decision-making for groundwater discharge for central El Paso County, in the vicinity of Fountain Creek.
AF CURE claimed the policy addresses “parent” PFAs compounds with no known toxicity. The policy would also present challenges to public utilities projects, including costs, according to a group presentation Tuesday.
Colorado Springs Utilities said it has spent $120,000 for PFAs testing in the past eight months, including installing 21 monitoring wells. The water quality division failed to fully look at the economic impact of the policy, the group said. “Do not adopt Policy 20-1 as drafted. There are many unaddressed issues wih significant complications.” And doing the policy through a rulemaking hearing, instead of the administrative hearing held Tuesday, would allow for a “more robust cost/benefit analyses.”
The Water Quality Control Division said what’s known about PFAs in Colorado is not enough:
50% of community systems have unknown levels of PFAS in drinking water
96% of community water systems haven’t had their sources tested
95% of surface water segments have not been tested, which leads to questions about how PFAs impacts fish, livestock and crops
20% of Colorado’s population relies on private wells, yet nearly none have been tested, and shallow wells are a higher risk.
John Putnam, environmental programs director for the CDPHE, said in a statement Wednesday that “we can’t wait for the EPA to come up with guidance; it would take too long. We need to take action now using the most current and best information available so we can start getting a better sense of the level of exposure we have in our state and to take the necessary steps to protect Coloradans from being more at risk.”
The Water Quality Control Division recently collected 71 samples from rivers and streams around Colorado, and every one of them showed at least some detectable levels of PFAs. A sample collected at the mouth of Sand Creek in Commerce City showed a level of 77 parts per trillion, which exceeded the EPA’s drinking water limit of 70 parts per trillion.
While the commission statement said they were unaware that anyone was drinking that water, it’s still a concern since PFAs doesn’t break down and can impact downstream drinking water supplies.
The sampling data indicates that industrial companies that have discharge permits for wastewater may be playing a role in the buildup of PFAs in water supplies. There are several companies that treat and discharge wastewater into Sand Creek, according to the commission statement.
To set an enforceable limit, the EPA must pass through a complex set of steps established in law to regulate contaminants in drinking water. And powerful lobbies that face cleanup liability, including the chemical industry, oppose regulation of PFAS as a group…
LONG TIME COMING
The question of whether and how much to regulate these persistent chemicals in drinking water has spanned the administrations of US presidents George W. Bush, Barack Obama, and Donald J. Trump. “This is a multi-administration failure to take action on PFOA and PFOS and on the broader class of PFAS chemicals that may pose health effects,” says Melanie Benesh, legislative attorney for the Environmental Working Group, which has called for limiting the two chemicals in drinking water since the early 2000s. “It has taken EPA an extraordinarily long time to do anything.”
Action toward possibly regulating these chemicals in drinking water began about a decade ago, when the EPA gathered data collected by water utilities on occurrence and levels of PFOA and PFOS. Neither PFOA nor PFOS is manufactured domestically anymore, but communities across the nation face legacy pollution. Also, either chemical may still be imported as a component, such as a coating, in products.
Drinking water in at least 25 states is tainted with PFOA or PFOS. In some areas, including the Pease Tradeport, other PFAS also turn up, according to data gathered by the Environmental Working Group and Northeastern University. Overall, PFAS may contaminate public drinking-water systems that serve an estimated 19 million people living in the US.
COVID-19 is changing how the U.S. disposes of waste. It is also threatening hard-fought victories that restricted or eliminated single-use disposable items, especially plastic, in cities and towns across the nation.
Our research group is analyzing how the pandemic has altered waste management strategies. Plastic-Free July, an annual campaign launched in 2011, is a good time to assess what has happened to single-use disposable plastics under COVID-19, and whether efforts to curb their use can get back on track.
From plans to pandemic
Over several decades leading up to 2020, many U.S. cities and states worked to reduce waste from single-use disposable objects such as straws, utensils, coffee cups, beverage bottles and plastic bags. Policies varied but included bans on Styrofoam, plastic bags and straws, along with taxes and fees on bottles and cups.
Social norms around plastic waste have evolved quickly in the past several years. Pre-COVID-19, “Bring your own” tote bags, mugs and other foodware had become part of daily life for many consumers. Innovative startups targeting reusable foodware niches include Vessel, which partners with cafes, enabling customers to rent stainless steel to-go mugs, and DishCraft, which picks up dirty dishes from dine-in restaurants and to-go food outlets, cleans them with high-tech equipment and returns them ready for reuse.
Just before COVID-19 lockdowns began in March 2020, the New Jersey senate adopted a bill that would have made the state the first to ban all single-use bags made of either paper or plastic. And U.S. Sen. Tom Udall of New Mexico and U.S. Rep. Alan Lowenthal of California introduced the Break Free from Plastic Pollution Act – the first federal measure limiting use of single-use disposable items.
By late June, cities and states had temporarily suspended almost 50 single-use item reduction policies across the U.S. – mainly bans plastic bag bans. The pandemic also spurred demand for single-use personal protective equipment, such as masks and plastic gloves. These items soon began appearing in municipal solid waste streams and discarded on streets.
The plastic pandemic
With legislation restricting disposables suspended, many food vendors and grocery stores have shifted entirely to disposable bags, plates and cutlery. This switch has raised their operating costs and cut further into their already-low margins.
The recycling industry has weighed in on the impacts of more single-use bags and higher residential waste volumes. Waste industry workers, who have been uniformly declared essential, work in closed spaces with many other people, so even if surface transmission of coronavirus is not a serious risk, the pandemic has increased person-to-person transmission risks in the waste industry.
Hygiene: A red herring
The main rationale that states, cities and vendors have offered to justify switching from reusables back to disposables is hygiene. Plastic packaging, the argument goes, protects public health by keeping contents safe and sealed. Also, discarding items immediately after use protects consumers from infection.
This narrative handily dovetails with the plastics industry’s ongoing effort to slow or derail bans and restrictions. The industry has loudly supported turning the clock back toward single-use disposable products.
[The Conversation’s newsletter explains what’s going on with the coronavirus pandemic. Subscribe now.]
In a March 2020 letter to the U.S. Department of Health and Human Services, the Plastics Industry Association argued that single-use items were the “most sanitary” option for consumers. Industry representatives are actively lobbying against the Break Free From Plastics Act.
However, studies show that these products are not necessarily safer than reusable alternatives with respect to COVID-19. The virus survives as long on plastic as it does on other surfaces such as stainless steel. What’s more, studies currently cited by the plastics industry focus on other contaminants such as E.coli and listeria bacteria, not on coronaviruses.
Viewed more holistically, plastics generate pollutants upstream when their raw materials are extracted and plastic goods are manufactured and transported. After disposal – typically via landfills or incineration – they release pollutants that can seriously affect environmental and human health, including hazardous and endocrine disrupting chemicals.
All of these impacts are especially harmful to minority and marginalized populations, who are already more vulnerable to COVID-19. In our view, plastic goods are far from being the most hygienic or beneficial to public health, especially over the long term.
Crises like the COVID-19 pandemic make it hard to see the bigger picture. No longer having to remember reusable tote bags or coffee mugs can be a relief. But the quick return of single-use disposable products shows that recent restrictions are precarious, and that industries don’t cede profitable markets without a fight.
Some governments are taking notice. In late June, California reinstated its statewide ban on single-use plastic bags and requirement for plastic bags to contain 40% recycled materials. Massachusetts quickly followed suit, lifting a temporary ban on reusable bags.
For the longer term, it is unclear how COVID-19 disruptions will affect consumerism and waste disposal practices. In our view, one important takeaway is that while mindful consumers are part of the solution to the plastics crisis, individuals cannot and should not carry the full burden.
We believe that at the local and federal levels, policymakers need to build cross-jurisdictional alliances, recognizing shared interests with the waste management industry and emerging businesses like Vessel and Dishcraft. To make progress on reducing plastic waste, advocates need to reinforce measures in place before the next crisis hits.
Governor Jared Polis and members of his administration released a statement following the Trump administration’s increased efforts to rollback the bedrock National Environmental Protection Act (NEPA).
“This bedrock law helps protect the air we breathe and the water that is the lifeblood of our communities. We know NEPA needs to be more streamlined to ensure renewable energy and infrastructure projects can get moving. The voices of Coloradans should be heard on the projects that impact our communities,” said Governor Jared Polis. “Yet the Trump administration continues to put its thumb on the scale in order to favor special interests over hardworking Coloradans who value our environment and support a deliberative, citizen involved government. While I share the goal of cutting red tape, this latest Trump move is a misstep.”
Director Lew and members of the Polis administration testified at a field hearing in Denver in opposition to the Trump administration’s misguided NEPA roll-back
“Our nation’s roads connect our country and economy, but, historically, they divided many communities in their path,” said CDOT Executive Director Shoshana Lew. “Construction of the interstate cut through the heart of many cities and rural areas in America, with right of way often acquired disproportionately from lower-income and minority communities. On the heels of this activity in the 1950s and 1960s, NEPA provided a structured way to ensure a conversation with citizens about how a road, bridge or railway would affect their neighborhood, and to ensure opportunity for them to articulate their views or concerns. We can and should always find ways to improve these processes, but it is critical that we do so in ways that improve our understanding of the cumulative, direct, and indirect impact of projects on both our environment and our neighbors. This action misses the mark.”
“The decision by the Trump Administration to significantly alter NEPA implementation is the wrong direction for our country and Colorado,” said DNR Executive Director Dan Gibbs. “Coloradans highly value clean air and water. They want to protect our wildlife and open spaces, and ensure their communities are safe and healthy. The Trump Administration’s changes reduce safeguards, minimize the need to consider the broader or long-term impacts of federal decisions, and put arbitrary limits on environmental studies. These are contrary to Coloradans’ values and will likely result in further harm to Colorado’s natural resources, our economy, and communities.”
“Colorado’s economy and quality of life depend on clean air, clean water, and a stable climate,” said CEO Executive Director Will Toor. “The Trump administration’s new guidelines appear to be surgically designed to avoid consideration of the climate impacts of projects, will eliminate consideration of the cumulative impacts of fossil fuel development, and will undermine efforts to protect air quality in Colorado and other states.”
“This is what disempowerment looks like,” said Jill Hunsaker Ryan, Executive Director of the Colorado Department of Public Health and Environment. “The federal government is telling agencies to tune out community voices and ignore the most important issues when making decisions. This includes disregarding or diminishing questions of environmental justice, climate change, ozone pollution, and cumulative impacts. Colorado will once again step into the breach to protect its communities’ health, as well as our air, water and lands.”
The state’s Water Quality Control Commission voted unanimously Tuesday to enact a policy to put new limits on per-and poly-fluoroalkyl substances, better known as PFAS. The class of chemicals is a common ingredient in everything from nonstick pans to foam used to smother flames from jet fuel.
A growing body of scientific evidence has linked the chemicals to a range of health problems, including cancer and pregnancy issues. Meanwhile, federal efforts to regulate the chemicals have lagged, leaving states to take action on their own.
Liz Rosenbaum, founder of the Fountain Valley Clean Water Coalition, was relieved to see Colorado join the list of states cracking down on the chemicals…
Rosenbaum’s community just south of Colorado Springs is widely seen as ground-zero for Colorado’s growing PFAS pollution crisis. In 2016, scientists found elevated levels of a specific PFAS in the drinking water for Security, Widefield and Fountain. The study traced the contamination to firefighting foam used at Peterson Airforce Base. Two years later, another study found elevated levels of the same chemical in community members’ blood.
Further testing has since revealed the chemicals in waterways across the state. Recent results from a state study found four water sources where levels exceeded a health guideline set by the Environmental Protection Agency in 2008. All of the samples had some detectable levels of the chemicals.
In an effort to control the problem, the Colorado Water Quality Control Division proposed rules to require wastewater treatment plants and industrial sites to monitor the chemicals. It also established the authority for the state to limit the chemicals in future wastewater permits.
But the focus on wastewater was met with a fierce backlash from cities and private interests.
Three days before the commission hearing, Aurora, Colorado Springs and Greeley joined utilities and water districts in demanding regulators pause deliberations over the new rules. The motion to vacate claimed the rules focused on wastewater treatment plants, which do not add PFAS to water systems.
The groups called on the regulators to instead focus the source of the chemicals, like companies making carpet products or consumers using nonstick pans.
The Metro Wastewater Reclamation District, which serves more than 2 million people around metro Denver, put an especially shocking number behind their objection. If the state required wastewater districts to clean up the chemicals, it could cost ratepayers over $700 million.
Representatives for the Colorado Water Quality Control Division dismissed those concerns. Manufacturers and airfields would also face new scrutiny to clean up the chemicals, which means the wastewater district probably wouldn’t end up stuck with the problem. Under the rules, the district also likely wouldn’t face any of the new limits on PFAS until 2031. Meg Parish, a permit manager with the division, said by then it could be far cheaper to clean up the chemicals.
The Trump administration’s adoption of narrower protections for wetlands and waterways can take effect almost everywhere in the nation, except Colorado, while courts review whether the move was legal.
A federal Judge in California on Friday rejected a request for a nationwide injunction of the rule. Hours later, a federal Judge in Colorado agreed to freeze the federal rule within that state.
The California court’s decision is a major blow to environmentalists and states that had hoped to block the Navigable Waters Protection Rule across the country before it takes effect Monday. Colorado, meanwhile, is celebrating its success in blocking the rule in the Centennial State.
A coalition of liberal states and cities challenged the joint rule from the Environmental Protection Agency and Army Corps of Engineers, saying the agencies violated multiple federal laws. The U.S. District Court for the Northern District of California heard a marathon session of arguments June 18…
Colorado had filed its own legal challenge in the U.S. District Court for the District of Colorado.
Judge William J. Martinez said some of the state’s arguments were “unusual and partly self-contradictory,” but concluded that the state met the bar for a preliminary injunction, which will put the regulation on hold in that state while the litigation plays out.
Other lawsuits attacking the regulation are pending in district courts across the country, where litigants are pursuing similar efforts to block the measure.
The Trump rule defines which types of wetlands and waterways are subject to federal regulations under the Clean Water Act. The interpretation replaces the Obama-era Clean Water Rule and a set of Reagan-era regulations.
Click here to read the newsletter. Here’s an excerpt:
NARROW WOTUS ON HOLD IN CO
The adoption of narrower Clean Water Act protections for streams and wetlands is currently blocked in Colorado, as a result of a court ruling on the state’s challenge to the new federal rule. Details are in this Bloomberg Law report.
Here’s the release from Colorado Parks & Wildlife (Jason Clay):
Cherry Creek State Park is experiencing natural algal blooms that may be harmful to dogs and humans as a result of a number of things including warmer temperatures, stagnant waters, and nutrient loading from fertilized lawns.
The park has closed the swim area due to elevated levels of cyanobacteria (blue-green algae) growth. The swim area will remain closed until tests provide acceptable conditions to re-open. Blue-green algae has been detected in other areas of the park and caution signs have been placed in visible areas throughout the lake. The Colorado Department of Public Health and Environment (CDPHE) recommends the following:
Keep kids out
No pets in water
Do not drink water
Avoid contact with algae
For more information on blue-green algae, please click here.
The Dog-Off-Leash-Area stream has been tested and no visible signs of the algae have been observed.
For more information on conditions at Cherry Creek State Park, please click here.
The silence you are hearing is no one being surprised.
The limits of the phrase “waters of the United States” within the Clean Water Act (CWA) have been the subject of conflicting, confusing, and often divergent case law for decades, and the efforts of the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to issue new rulemakings beginning in the Obama administration have only led to a deeper legal quagmire. The most recent effort to redefine the term, the Navigable Waters Protection Rule (2020 WOTUS Rule) is already subject to conflicting court decisions, and split implementation.
The contrary decisions were both handed down on June 19, 2020 in the United States District Court for the District of Colorado and in the United States District Court for the Northern District of California. The Colorado decision granted the state’s request for a preliminary injunction preventing the implementation of the 2020 WOTUS Rule in Colorado. The California decision considered and rejected a similar request for nationwide injunction by seventeen states.
Colorado’s decision turned on an analysis of the U.S. Supreme Court Decision in Rapanos v. United States, 547 U.S. 715 (2006). Noting that is difficult to ascertain what the 4-1-4 Rapanos decision actually stands for, the Colorado district court looked at what it stands against. Five justices in Rapanos were expressly opposed to the categorical exclusion of intermittent and ephemeral streams from Clean Water Act protection that was proposed by the plurality opinion of Justice Scalia. Because the 2020 WOTUS Rule attempts to codify what the Supreme Court has already rejected as “inconsistent with the [CWA’s] text, structure, and purpose” (see Rapanos at 776), the judge concluded that Colorado is likely to succeed on the merits, and granted the requested injunction.
The California decision came to the opposite conclusion, relying heavily on the inherent ambiguity of the term “navigable waters” within the CWA. Citing Chevron U.S.A. v. NRDC, Inc. 467 U.S. 837 (1984), the court believed deference was due to the agencies when implementing ambiguous terms in a statute. The district court also noted that under National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), an agency reversing itself regarding the interpretation of an ambiguous term is not automatically cause for denying Chevron deference. Moreover, the district court noted that a “court’s prior judicial construction of a statute [read: Rapanos] trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X at 982. The court could not construe any proposition from the fractured Rapanos opinions as following unambiguously from the terms of the CWA, and thus concluded that the plaintiffs had not carried their burden of showing a likelihood of success on the merits. The broader injunction requested by the plaintiffs was denied.
Here’s the release from the Colorado Department of Public Health and Environment:
The state announced the results of a project that tested water statewide for PFAS, pervasive chemicals that originate from toxic firefighting foam and other sources. The state found that none of the treated drinking water tested was above the EPA’s health advisory level, but the state did find higher levels of the chemicals in some groundwater sources.
The results are posted online in a data dashboard. With $500,000 awarded from the state legislature, the department facilitated the sampling of 400 water systems and 15 firefighting districts– as well as 152 groundwater sources and 71 surface water sources like rivers and streams. The sampling included about half of the drinking water systems in the state serving around three-quarters of the population.
“The current results show that no drinking water tested above the EPA health advisory for two chemicals,” said Kristy Richardson, state toxicologist at the Department of Public Health and Environment. “At the same time, we know science is evolving, and we are committed to using the most current and best available information to provide health-based guidance on exposure to the chemicals. As new studies become available, our understanding of health effects in humans — and our recommendations — will continue to be refined.”
Four entities that tested source water had sample results that exceeded the EPA health advisory. Three of the four entities already tested for the chemicals in previous years and have notified the public of those results– Stratmoor Hills Water and Sanitation District and Security Water and Sanitation District located in El Paso County and Sugarloaf fire district located in Boulder County. The entities are either not using that source water or treating the water to remove the chemicals before using it as drinking water. The additional entity is Fourmile Fire District.
Fourmile Fire District, located in Teller County, had not previously tested for the chemicals and found high levels in a well at one of their stations, but the state was informed the firefighters do not drink this well water. The fire district, local public health agency, and state are examining the geographical area to see if any residents living nearby may be impacted. Residents that live near the Four Mile station will be notified of the results and what steps they can take if they are concerned.
The state also sampled rivers and streams. All of the samples collected had some detectable level of the chemicals. The sample collected at the mouth of Sand Creek in Commerce City was above the EPA drinking water health advisory, but the state isn’t aware of anyone directly drinking this affected water. Nonetheless, high levels of the chemicals in streams can impact downstream drinking water supplies since they don’t break down.
The data indicate that industrial entities that have permits to discharge wastewater into rivers and streams may play a large role in the buildup of the chemicals. Sand Creek was sampled twice– one upstream of Commerce City on the east end of Aurora and one downstream before it flows into the South Platte. A number of industries treat and discharge wastewater in that area. The upstream sample result was 13 ppt, and the chemical amount increased downstream to a combined level of 77 ppt for the chemicals, a level above EPA’s drinking water health advisory.
The state recently released a survey that state dischargers are required to fill out providing information about the use and storage of certain products containing the chemicals. This will help the state better understand the risk of the chemicals entering state waters.
The state is also using its hazardous waste authority to require various sites along the Front Range to evaluate potential impacts to groundwater. State inspectors have evaluated three oil and gas facilities in the area of Sand Creek, and found that one facility has significantly impacted groundwater next to Sand Creek. The state will use the groundwater data and the surface water data from Sand Creek to determine if additional measures are needed to protect the creek.
“This is an essential step in filling in the gaps in our understanding of where the chemicals are in the state,” said John Putnam, director of environmental programs at the Colorado Department of Public Health and Environment. “But, our work is not complete — we will continue to work to assess conditions for the other systems not sampled, private wells near areas of contamination, and Colorado’s waters. And, we’ll work to find solutions where the chemicals are found at high levels and to safely dispose of materials before they get to our waters.”
As part of its action plan to address the chemicals, the state will propose a water quality policy to the Water Quality Control Commission in mid-July to enhance its ability to get more data on discharges of the chemicals to state waters and provide guidance on the need for filtration or other treatment. The policy will also help the state set limits on the chemicals from entering our waters.
Additionally, in spite of the shortened session, the legislature passed two important laws regarding the chemicals. There are now restrictions on the use of firefighting foam that contains the chemicals and a fee structure so the state can have the necessary resources to provide guidance on the health impacts and investigate and support communities that may be impacted. The fees will provide critical resources to (1) support additional sampling and health assessment for systems; (2) implement a takeback program to take back and dispose of materials with the chemicals; and (3) assist systems that have found the material in their source water.
Here’s the release from the Southeastern Colorado Water Conservancy District (Chris Woodka):
The Southeastern Colorado Water Conservancy District applauded state approval of a $100 million financing package for the Arkansas Valley Conduit that will allow construction to begin in the near future.
The Colorado General Assembly passed the annual Colorado Water Conservation project bill which contains the funding earlier this month, and Governor Jared Polis signed the bill into law on Monday.
“The Arkansas Valley Conduit will be a lifeline for the Lower Arkansas Valley for generations to come,” said Bill Long, President of the Southeastern District. “Governor Polis, the General Assembly and the CWCB have all shown vision and foresight with this support of the AVC. This goes beyond just financing a pipeline, because really it’s an investment to assure clean drinking water for the future.”
Long also noted the strong bipartisan support the AVC enjoys from the entire Colorado congressional delegation, and noted in particular the leadership of Senators Cory Gardner and Michael Bennet, and Congressmen Scott Tipton and Ken Buck.
“I want to thank the CWCB board and staff for including this funding in their annual bill, and express our sincere gratitude to the legislators from the Arkansas Basin for their leadership and support,” said Kevin Karney, chairman of the District’s AVC committee. “The recognition by the State of Colorado of the benefit of partnering with the Bureau of Reclamation on this project is an enormous boost.”
The AVC is estimated to cost between $564 million and $610 million to complete over a 15-year period. The $100 million in state funding would include $90 million in loans and $10 million in grants over the life of the project. When complete, the AVC will provide clean drinking water to 50,000 people in 40 communities.
The AVC had received funding since 2010 to prepare for construction of the 130-mile pipeline which will deliver a safe drinking water supply to the Lower Arkansas Valley. In February of this year, the Bureau of Reclamation announced that $28 million of FY ’20 funding was being directed to the conduit, in an effort to move from planning and design into construction. An additional $8 million has been requested for FY ’21 and is under consideration by Congress.
“The unanimous approval of this funding package by the CWCB board last November was the absolute catalyst for an improved federal funding picture,” said Southeastern District Executive Director Jim Broderick. “Colorado, like other Western states, recognizes developing a strong partnership with Reclamation allows us to overcome water quality and water supply challenges in rural areas.”
Palisade needs to decommission its aging wastewater lagoons and a new study shows piping the town’s waste to the Clifton Sanitation District’s wastewater treatment plant is the most cost effective.
The Palisade Sewer Study looked at several options for treating Palisade’s wastewater, Town Administrator Janet Hawkinson said. The two main options were to build a new treatment plant in Palisade or send the waste to Clifton.
“What the city found is that (piping to Clifton) is financially better for the town,” Hawkinson said. “It’s about half the price to take a line to Clifton versus us building our own treatment plant and then decommissioning our lagoons.”
A brand new plant would cost around $15 million, Hawkinson said, while utilizing Clifton’s existing facility would cost around $7 million. Decommissioning the lagoons will cost around $3 million, she said and will have to be done under either plan, as they will not be able to meet water treatment guidelines…
Town staff are beginning to research grant opportunities to pay for design and engineering work on the project, which Hawkinson said would cost around $500,000. She said the Department of Agriculture has some grants available and that the town was looking into other funding sources as well.
The court said that Colorado Attorney General Phil Weiser had met the requirements for a temporary injunction to be granted. The decision came as a federal court in California rejected a similar request that was nationwide in scope and backed by several states including California and New York, according to Bloomberg business news.
The decision means the state will have more time to set up a new regulatory program to replace at least a portion of the protections lost under the new Waters of the U.S. rule, or WOTUS, as it is known.
Hiking near a snow-speckled mountain on a late spring day, it’s not hard to find water running through a narrow stream. Come back several months later, and that stream might be empty.
In Nevada, most waterways work this way. Roughly 90 percent of the state’s streams are intermittent or ephemeral, running at only certain times of the year in response to snowmelt or precipitation, according to data compiled by the Nevada Division of Environmental Protection (NDEP).
It’s a fact throughout the West, from Arizona to New Mexico. Many streams are seasonal.
Scientists say these streams, despite running irregularly, are important for ecosystem health in arid areas. They connect waterways, replenish groundwater supplies and support wildlife. That’s one reason many environmentalists are concerned about a Clean Water Act rollback, set to go into effect later this month, that would exclude most of these streams from federal protection.
In 1972, Congress passed the Clean Water Act, giving the federal government the authority to protect and regulate water. But for years, states, activists and industry have argued over its scope. And the new rule offers a narrower interpretation of the federal government’s role.
Although the Clean Water Act will still protect heavily used waterways in Nevada, including the Colorado River and the Truckee River, it excludes many wetlands and most seasonal streams.
As a result, the rule has set off a flurry of legal challenges from environmental groups. And in recent months, several Democrat-led Western states, including Colorado, California and New Mexico, have sued the Trump administration to challenge the final rule.
Nevada has not joined those suits. In comments submitted last year, NDEP described it as a “considerable improvement” over the Obama-era rule it replaced. Still, state regulators say they are evaluating the new rule’s total effect, and they expect to have to adjust existing permitting programs. They argue any gaps in protecting water quality will be addressed under state law…
Joro Walker, a lawyer with the Western Resource Advocates, questions whether Western states have the enforcement resources to enforce the rules as the federal government steps back…
In other cases, the new rule calls into question whether even some larger rivers fall under the Clean Water Act. As part of the rulemaking, the Trump administration approved a more narrow federal definition of what the Clean Water Act protects as Waters of the United States, or WOTUS…
Pollution only tells one side of the story.
Development — filling wetlands or paving over small streams — can also degrade waterways. That’s why many environmental groups want to see wetlands and small streams, especially in Nevada, to be explicitly included in a broad definition of what the Clean Water Act protects.
Hartl, with the Center for Biological Diversity, notes that it has long been difficult to determine whether or not an ephemeral or intermittent stream fell under protection of the Clean Water Act.
“No one knows the answer until someone decides to pave over it,” he said.
For years, activists, politicians and the courts have argued over the scope of the Clean Water Act, specifically where the state’s jurisdiction begins and federal jurisdiction ends.
In 2015, the Obama administration broadened the scope of the Clean Water Act, applying it to wetlands and seasonal streams. The move came in response to significant confusion over a 2006 Supreme Court case that produced no majority opinion and five separate opinions…
Since the final rule was released in April, environmental groups and more than a dozen states have sued the Trump administration, kickstarting what is likely to be another round of lawsuits and court guidance. One of the litigants is Environment America, which has a Nevada chapter.
Levi Kamolnick, state director for Environment Nevada, said that water does not abide by state borders. He worries lax regulation of seasonal streams in one state could affect Nevada. For that reason, Kamolnick said seasonal streams should be protected by the federal government.
According to an EPA analysis completed in 2009, about 27,000 Nevadans were served by drinking water systems that relied on intermittent, ephemeral or headwater streams, he added.
“We absolutely think that the Trump Dirty Water Rule runs counter to the intent of the Clean Water Act,” Kamolnick said. “We believe strongly that any moves to exclude non-permanent water sources [from federal protection] is detrimental to the health of Nevadans.”
Here’s the release from the City of Colorado Springs:
The City of Colorado Springs has closed Prospect Lake, in Memorial Park, effective immediately, until further notice due to the presumed return of toxic algae. The closure follows a visual inspection Monday, June 15 by Parks, Recreation and Cultural Services staff. A precautionary water sample is scheduled to be taken from the lake by Colorado Springs Utilities on Tuesday, June 16. This test is to confirm the presence of mycrocystin toxin, which is produced by cyanobacteria, also known as blue-green algae.
“Our region has again been experiencing hot, dry weather, creating conditions similar to what we experienced prior to the 2019 algae bloom in Prospect Lake,” said Erik Rodriguez, health, safety and environmental specialist with the Parks, Recreation and Cultural Services Department. “Given today’s visual inspection, and the lake’s recent history with mycrocystin toxin, we have closed Prospect Lake for usage at this time. If Tuesday’s water sample returns positive, we will continue to test weekly until the bacteria clears up.”
Prospect Lake was closed for 12 weeks in the late summer and early fall of 2019 due to blue-green algae. Since that time, Parks’ staff has taken proactive measures, including the application of an enzyme-based, non-pesticide treatment that consumes the biomass at the bottom of the lake and helps oxygenate the water. The first two treatments were applied May 26 and June 11. The next scheduled treatment is Tuesday. Additionally, more water will be added to the lake, which will increase the oxygen level and help dilute the toxin.
During the closure, the following activities are prohibited: swimming, bathing, paddle boarding, tubing, water skiing and non-motorized boating of any kind. No pets are allowed. The use of permitted motorized boats is encouraged as this activity can help aerate the water. Fishing areas will remain open, though anglers are urged to clean fish well and remove guts.
BLUE-GREEN ALGAE BACKGROUND
What is harmful algae?
Blue-green algae are a type of bacteria common in lakes throughout Colorado. When conditions are right, blue-green algae multiplies quickly. Those conditions include sustained hot weather, stagnant water, and polluted stormwater runoff.
These conditions result in too much nitrogen, potassium and phosphorus in the water. This causes the harmful bacteria to grow faster than the ecosystem can handle. The increased bacteria harm water quality, decrease the amount of oxygen available to animals living in the water, and can produce a toxin that is harmful to humans and pets.
Blue-green algae are self-limiting, naturally-occurring bacteria, which means it eventually phases itself out of bodies of water.
The Colorado Department of Public Health and Environment (CDPHE) offers additional information about blue-green algae on its website.
Experts have recommended how the United States can drastically curb the use of throwaway plastics with new federal legislation.
According to legal analysts who advised Congress at a briefing in January, the United States could reduce its contribution to the global plastic pollution crisis by implementing sweeping federal policies that restrict plastic use and hold manufacturers accountable for responsibly handling waste.
The expert group, composed of members from Frank G. Wells Environmental Law Clinic at UCLA and ocean conservation organization Surfrider Foundation, specifically recommended that Congress craft federal legislation banning single-use plastic products such as bags, straws and expanded polystyrene foam food containers. They also called for establishing “extended producer responsibility” schemes, which hold plastic manufacturers responsible for the waste they create.
Their recommendations, along with a new report, drew on research into existing legislation targeting plastic pollution in the United States and across the world. The experts found that the key to reducing plastic pollution is curbing consumption. The report and its presentation resulted from a semester-long project by UCLA students Charoula Melliou and Divya Rao, in collaboration UCLA attorney Julia E. Stein, Surfrider’s legal expert Angela Howe and plastic bag legal expert Jennie Romer…
There are currently no federal laws restricting single-use plastics, but that doesn’t mean there aren’t good examples that could serve as useful templates.
According to Stein, Congress could shape federal policy by following existing local and state laws that have already been crafted to tackle plastic problems with bans on all types of single-use plastic items, from bags to expanded polystyrene foam food containers to straws. California made headlines in February after lawmakers proposed a phaseout of all plastic products that aren’t completely recyclable.
Such laws are grounded in scientific evidence that plastics are problematic because they don’t break down in the natural environment and pose a danger to wildlife and probably people.
There’s a precedent for using state and local laws to help craft national legislation: microbeads. After several states and municipalities banned the sale and manufacture of health and beauty products containing these ecologically damaging exfoliating plastic beads, the United States passed a federal act doing the same.
Most experts agree banning single-use plastic products is a more useful strategy for reducing plastic use and pollution than recycling, which is much less effective. A ban also tackles the issue at the source, helping to curb greenhouse gases coming from the rapidly expanding petrochemical industry that uses fossil fuels to produce plastic.
Commonly Used Plastics
With plastic so ubiquitous, where to start? Experts say that banning just the most commonly used and littered items could cut pollution significantly.
That puts single-use plastic bags front and center…
Besides banning common problematic single-use plastic products, the expert group also recommends Congress pass legislation that would hold corporations accountable for handling plastic waste at the end of its life.
Extended producer responsibility regulations require manufacturers of plastic products to take their items back for reuse, recycling or disposal to increase recycling rates and prevent plastic waste from entering landfills and the natural environment. Container-deposit legislation is one example of such a program that’s widespread — though not ubiquitous — around the United States.
Telesetsky says these schemes may be useful when designed to manage long-lasting plastic products, but they’re trickier to implement and incentivize when plastic packaging is involved. “The problem with applying extended producer responsibility principles to existing single-use plastic is that there is simply no market for all of the reprocessed cheap packaging plastics that are being generated,” says Telesetsky. “Cheap plastics have a finite usable life before they are inevitably landfilled or burned.”
Telesetsky praises the new briefing because it raises awareness of a critical problem. But unlike the briefing group, she proposes banning single-use plastic products outright, on a global scale, in addition to incentivizing innovation in creating new biodegradable products and packaging, which she argues would stop plastic pollution more closely to its source. And it would address the issue on what she sees as a more radical and international — and thus more impactful — scale.
Yet Stein emphasizes that while her briefing has a national focus specifically tailored to U.S. Congress, the wider view is international.
“We support international efforts to address plastic pollution, but the United States also needs to take responsibility at home for its own contribution to the problem.”
Will Congress take up that challenge?
Stein says she and other members from the UCLA-Surfrider group who traveled to Washington, D.C. in January held several legislative briefings for Congressional members and staff, including those involved with last year’s 2018 Save Our Seas Act.
The act provides some funding for federal marine cleanup and waste-prevention efforts through NOAA’s Marine Debris Program. Already, two of the bill’s cosponsors, Senators Dan Sullivan (R-AK) and Sheldon Whitehouse (D-RI), have begun working on a revamped “2.0 version.”
“Overall, we felt the reception was positive — plastic pollution is a topic that is on the minds of the American public and the congresspersons who represent them,” Stein says. “We’re hopeful that Save Our Seas 2.0 legislation in the Senate may provide a chance to think about comprehensive federal strategies to reduce plastic pollution.”
FromThe Denver Post (Judith Kohler) via The Broomfield Enterprise:
The Colorado Oil and Gas Conservation Commission approved the rules Wednesday as part of ongoing revisions to oil and gas regulations mandated by Senate Bill 181, approved by the legislature in 2019.
The regulations deal with the well bore, or the hole that’s drilled to access oil or gas as well as the pipes and casings installed to inject fluids to make fractures in rocks and sand and bring up the oil and gas. The casings and cement that are part of the construction are also meant to ensure that no fracking fluids, oil or gas escape and flow into groundwater.
Heading into the hearing, there was general agreement among the parties on the proposed changes. Since the COGCC and the state Air Quality Control Commission began writing new rules, oil and gas industry representatives, community and environmental groups have clashed with each other and with agency staffers in hearings and meetings over how far the regulations should go.
But Julie Murphy, COGCC deputy director, said the agency was able to consider new rules on well bores earlier than expected thanks to a broad consensus among the various parties. She said the “top-line” change is the new requirement that the pressure in all wells across the state be tested annually to ensure that the casings and cement are still in good shape.
The annual testing and regular monitoring approved put Colorado at the head of the pack among oil- and gas-producing states, said Adam Peltz, an attorney with Environmental Defense Fund who has reviewed and worked on similar regulations across the country. He noted that the COGCC has tried to incorporate as many recommendations as possible from a 136-point list put together by a multi-state body of regulators and policy makers.
Another important change is a more precautionary approach to making sure that groundwater no matter, how far down it is located, is protected by isolating the oil, gas and fracking fluids with casings and cement, Murphy said…
The new rule is consistent with Colorado state groundwater standards, Freeman said. The COGCC staff added language saying that groundwater with less than 10,000 parts per million total dissolved solids in it must be protected, Freeman said.
The standard addresses the amount of salt in the water is and is the same one in the federal Safe Drinking Water Act and used by the Colorado Water Quality Control Commission, Freeman said.
Water with 3,000-10,000 parts per million of total dissolved solids is often called “brackish,” or saltier than fresh water, but it can be treated to use for drinking.
Click here to read the release from the State of Colorado (Chris Arend, Heatheryn Higgins, Jessica Bralish, Matt Inzeo):
The Colorado Departments of Natural Resources, Public Health and Environment, Transportation and the Colorado Energy Office joined together in a statement expressing concern about President Donald Trump’s Executive order to lift reviews of environmentally impactful activities.
“The June 4, 2020, Executive Order from President Donald Trump directs federal agencies to bypass requirements for a number of bedrock federal environmental laws, including:
The National Environmental Policy Act
Endangered Species Act
Clean Water Act
Federal Policy and Land Management Act
It leaves to the federal agencies what projects or decisions they may move forward without complying with the protections of these and other laws, and removes the public’s ability to know about and comment on how such agency decisions will affect them and their communities.
Our Departments have successfully worked with local governments, businesses, stakeholders and citizens on numerous high profile projects where public engagement and additional environmental review enabled better projects, greater community buy-in, and increased protections for wildlife and natural resources. Specific examples include the Central I-70 Development in Denver, I-70 Mountain Corridor near Glenwood Springs, Upper Colorado River Endangered Fish Recovery Program, Canyons of the Ancients National Monument and Chatfield Reservoir Reallocation Project.
The attempt to avoid public engagement, environmental analysis and mitigation will damage Coloradans’ health, environment and economy. It will affect all parts of the state, from our prized public lands to urban development. It will threaten protections and careful balancing for water projects, as well as progress towards environmental justice including in building transportation infrastructure — which has had a legacy of significantly impacting urban downtowns and minority communities in the 1950s and 1960s, before these environmental protections were put in place. At a time when the risks of respiratory illnesses are especially worrisome, we should be doing more to account for communities’ health, not less.
The state of Colorado prioritizes efficient government processes with respect to project approvals, but emphasizes that public input and participation is a critical step in that efficient process, ensuring we’re not allowing public resources to be spent or used for publicly harmful practices.
While emergency exceptions do occur for some federal environmental rules, they are intended for true physical emergencies such as washed out roads from the 2013 floods, replacement of critical facilities after wildfires or failing dams.
Neither the COVID-19 emergency nor current economic conditions fall into that category that would justify shortcutting engaged, smart and thoughtful projects and decisions. Indeed, now more than ever, we need to ensure that projects protect our communities and safeguard Coloradans’ health, land, air, water, and wildlife.
Unilateral Executive Orders will only serve to delay needed highway improvements, critical energy infrastructure or efforts to protect our endangered wildlife and their habitat through litigation and administrative appeals.
We urge the Trump Administration to work with the State of Colorado on mutual beneficial projects which are collaborative, thorough, and protective of our environment and communities while providing long term benefits for all Coloradans.”
Will Toor, Executive Director, Colorado Energy Office
Dan Gibbs, Executive Director, Department of Natural Resources
Jill Hunsaker Ryan, Executive Director, Department of Public Health and Environment
Shoshana Lew, Executive Director, Department of Transportation
The administration has brazenly axed another long list of environmental protections — when it should have been healing a nation wounded by the pandemic and racist violence.
Under cover of tear gas, the Trump administration last week intensified its ongoing demolition of the country’s bedrock environmental protections — a series of calculated moves made while the nation remained gripped by the twin viruses of COVID-19 and institutional racism.
It started on Thursday, June 4, when President Trump used the pandemic as an “emergency” excuse to issue an executive order allowing federal agencies to set aside key protections in the Endangered Species Act and the National Environmental Policy Act in order to speed up the construction of oil and gas pipelines, highways and other projects.
Trump’s long-threatened NEPA rollback, which will limit citizens’ ability to voice objections to destructive projects, poses a direct threat to minority communities already facing greater levels of illness and death under the COVID-19 pandemic following decades of environmental racism.
“Here we are in the midst of an epidemic that affects your respiratory system and communities that are concerned about respiratory health are losing a voice to stop projects that exacerbate serious health issues,” David Hayes, executive director of the State Energy and Environmental Impact Center at New York University’s School of Law, told The Hill.
The executive order came three days after Trump used police and teargas to clear away peaceful crowds protesting racially biased police violence to make room for his now-notorious photo op in front of St. John’s Episcopal Church.
And it came the same day the National Oceanic and Atmospheric Administration announced that world atmospheric carbon dioxide levels had reached a new record high of 417.1 parts per million, putting the planet further on the path toward runaway climate change. “Progress in emissions reductions is not visible in the CO2 record,” NOAA senior scientist Pieter Tans said in the announcement. “We continue to commit our planet — for centuries or longer — to more global heating, sea level rise and extreme weather events every year.”
The text of the press release continued: “If humans were to suddenly stop emitting CO2, it would take thousands of years for our CO2 emissions so far to be absorbed into the deep ocean and atmospheric CO2 to return to pre-industrial levels.”
Which made it all the more perplexing when the EPA, following Trump’s order for additional “emergency” deregulation, announced it would ease the rules that require factories and power plants to report — or even monitor — their pollution emissions, although it did state that these industries should continue to obey existing pollution limits.
In another giveaway to industry, the new policy has been made retroactive to March 13, 2020.
As if those two changes weren’t enough, the slash and burn of environmental protections continued Friday, June 5, when Trump opened Northeast Canyons and Seamounts Marine National Monument to commercial fishing. The 4,913-square-mile reserve, located 130 miles off the coast of Cape Cod, was established by President Obama in 2016 under the Antiquities Act and is home to “fragile and largely pristine deep marine ecosystems and rich biodiversity,” according to NOAA.
The move came exactly one week after Trump declared June to be “National Ocean Month” in a bizarre proclamation that focused more on offshore oil and gas development and seafood production than conservation.
The changes were, of course, immediate criticized.
“This rollback essentially sells off the future of the ocean and the future of the ecosystem for almost no present economic benefit,” Miriam Goldstein, ocean policy director at the Center for American Progress, told The Guardian. She added that it’s “puzzling that the president is doing it now, in the middle of the pandemic and with police riots going on around the country.”
Mystic Aquarium was instrumental in providing the scientific rationale for the designation of the Northeast Canyons and Seamounts Marine National Monument, an area critical to combating the climate crisis that we are facing. To roll back protections is a mistake. pic.twitter.com/E9pdH1m6jd
Much like Trump’s similar moves to shrink or eliminate other national monuments established by Obama under the Antiquities Act, the change to Northeast Canyons and Seamounts is probably illegal. As we’ve written before, presidents have the legal authority to establish monuments but not to rescind or downsize them. Lawsuits over Trump’s previous monument reductions continue to work their way through the courts, and new suits over this rollback are already expected to follow.
Still more rollbacks are on the way.
Also on Friday June 5, the Trump administration moved forward with plans to reduce the protections offered under the Migratory Bird Treaty Act, another giveaway to the oil and gas industries — a particularly tone-deaf move during the middle of Black Birders Week, a nationwide event celebrating diversity in nature that coincided with the protests over racial police violence.
The changes to the 1918 international treaty law, which has helped hundreds of species over the past century, would decriminalize “incidental” (non-intentional) bird deaths caused by industrial projects such as oil pits, mines, telecommunications towers, wind turbines and other threats.
The changes aren’t final and are subject to a public-comments period, although citizens have already submitted approximately 200,000 public comments in favor of keeping the law as-is. But as National Audubon Society CEO David Yarnold pointed out, comment periods under the Trump administration “have become a cruel joke. The administration continues to ignore scientists, experts and … bird-lovers in favor of a few bad corporate actors who can’t be bothered with common sense environmental protections.”
Rep. Alan Lowenthal (D-Calif.) also criticized the changes, saying they would “lead to the deaths of thousands and thousands of birds protected under the MBTA. The administration’s radical action needlessly ties the hands of the [U.S. Fish and Wildlife Service], while at the same time undermining our international treaty obligations.”
What does all of this really mean in the long run? Legal experts have already pointed out that Trump’s executive order doesn’t have many teeth. “The Order is legally shaky and unlikely to accomplish much,” Dan Farber of UC Berkeley School of Law wrote this week.
Even corporate interests expressed some doubt, especially since the executive order will undoubtedly face court challenges. One engineer tweeted, as quoted by the Washington Post, that “there is *NO WAY* I would turn a shovelful of dirt based on this Order.”
But industry groups actively celebrated the changes and expressed hope they would extend beyond the “emergency” period.
“We value the importance of these reforms now and underscore the need for finalizing rules across regulatory agencies that will implement permanent reforms,” American Exploration and Production Council chief executive Anne Bradbury told the Post.
It’s the last two words of Bradbury’s quote — “permanent reforms” — that say the most. We can expect industry to continue to ask for — and the Trump administration to grant — expanded, permanent deregulatory favors beyond this “emergency” period, changes that will continue to worsen our environment for people, wildlife and entire ecosystems.
And as with so much the Trump administration has done over the past three and a half years, these slash-and-burn changes will come as quietly as they can manage, with regressive actions continuing to take place under cover of darkness or tear gas.
Of course none of them will address the many other real crises this nation faces — and as we’ve seen this past week, all of them will likely only serve to make things worse.
FromBloomberg Law (John Dunbar and Christina Brady):
After decades of inaction, the federal government has gotten serious about cleaning up PFAS, a class of compounds known as “forever chemicals” that have been linked to health problems and inhabit the bloodstream of nearly every American.
Congress has introduced dozens of bills mentioning “PFAS” so far in the 2019-2020 Congress, many more than in previous years. The boom in legislation has sparked a major increase in lobbying. In 2017, only four entities mentioned the issue in government lobbying reports. In 2018, the number grew to 35, and by 2019, it rocketed to 164.
More water utilities—which have pushed back against certain provisions to clean up PFAS—have lobbied on regulation of the chemicals than any other group. They rank above the air travel industry, cities, and chemical companies, a Bloomberg Law analysis shows.
“I continue to be shocked that people charged with keeping our water clean have been among the most vocal opponents of getting PFAS out of our water, and are in many respects just as bad as many of the polluters whose mess they are charged with cleaning up,” said Scott Faber, senior vice president for government affairs with the Environmental Working Group, a nonprofit advocacy organization…
One basic question underlies the debate over what to do about what is arguably one of the most pervasive public health threats facing Americans in years: Who is going to pay to clean up this mess?
Under proposed EPA regulation and congressional action, utilities are faced with removing the stubborn compounds from their systems and disposing of them in landfills which could be designated as Superfund sites. Water utilities are already dealing with an aging infrastructure, worries about lead, and costs associated with the coronavirus pandemic and its economic impact.
Among the tools in the EPA’s toolbox for cleaning up toxic chemicals like PFAS is the Superfund law, enacted in 1980, which gave the agency the authority to force polluters to pay for cleanup of toxic sites…
In July 2019, the Democrat-controlled House approved the National Defense Authorization Act (H.R. 2500), which contained an amendment by Michigan Democratic Rep. Debbie Dingell that would force the EPA to designate PFOA and PFOS as “hazardous” within a year, thus triggering the Superfund designation that would allow the EPA to compel cleanup.
An alliance of water associations wrote to the House and Senate armed services committees in August, saying the Superfund designation could “create liability for communities that encounter PFAS in their water treatment activities.”
The letter was signed by the American Water Works Association, the American Association of Metropolitan Water Agencies, the National Association of Water Companies, and the National Rural Water Association.
A coalition of industry groups also argued against the Superfund designation, saying such decisions are “not political questions that Congress is best positioned to address,” in a letter to the House. “EPA should retain its traditional authority to study potentially hazardous substances and to ascertain whether they should be designated under CERCLA.”
The letter was signed by more than a dozen industry associations, including the American Chemistry Council, whose members include 3M, which still manufactures PFAS compounds, and DuPont spinoff, Chemours Co., which now holds most of DuPont’s PFAS liabilities.
Faber, of the Environmental Working Group, said utilities aren’t usually big contributors of PFAS to sites that could be designated under Superfund and subjected to liability. And they don’t have deep pockets. The government usually goes after companies with resources, not “cash-strapped entities,” he continued.
Mehan, from the utilities group, said that EPA doesn’t sue municipalities under Superfund, but other entities—like polluters that have been declared responsible for cleaning up contaminated sites—”have and will. Hundreds of them.”
Mark W. LeChevallier is the former chief environmental officer for publicly traded American Water and is now a consultant. “Any utility has to be worried,” he said. “The ultimate disposal is an issue here. And that might be a concern that some utilities have. Will they have ultimate responsibility?”
In Colorado, where groundwater contamination is a problem thanks in part to the military’s use of firefighting foam at its facilities, state lawmakers proposed testing requirements for drinking water and setting limits for PFAS. But the proposal didn’t survive the bill’s first hearing.
“We had pushback from the utility companies,” said state Rep. Tony Exum Sr., a Democrat who represents a part of the state that has been contaminated with the chemicals. “To mitigate and prevent is very, very expensive, as well as enforcement.”
Similar to the federal level, the groups had liability concerns, which lawmakers sought to address, “but we just didn’t have enough time to move forward,” Exum said.
“We’re going to keep working on it so we can come to an agreement,” he continued. “We can’t take clean water for granted.”
Havasupai Vice Chairman Matthew Putesoy is worried that a federal court decision regarding a uranium mine could lead to environmental catastrophe for his community and surrounding lands.
A U.S. District Court judge ruled May 22 against the tribe and two environmental groups in a seven-year-old lawsuit that sought to close the Canyon Mine, a uranium mine located about 10 miles south of the Grand Canyon’s south rim.
Putesoy said the tribe is not prepared to abandon its fight.
“From Havasu Baaja’s point of view,” he said, using the traditional name of his people, “the Guardians of the Grand Canyon will continue to battle the mining companies and someway, somehow, stop the mine from happening. Once the water is gone there’s no replacing it.”
The Canyon Mine lies within 1 million acres of federal lands surrounding the Grand Canyon that was withdrawn from any new mining for 20 years by the Interior Department in 2012.
The ban’s intent was to allow the U.S. Geological Survey to study the effects of such mines in the area to determine if environmental damage was likely to occur. The U.S. Forest Service determined that Canyon Mine, owned by Canadian firm Energy Fuels, could still operate because it could show a profit, as theMining Law of 1872 requires for a valid claim to be honored.
FromColorado Politics (Marianne Goodland) via The Colorado Springs Gazette:
A bill on toxic firefighting chemicals that have contaminated water supplies in southern El Paso County won unanimous support Thursday from the House Finance Committee.
[HB20-1119] was approved by the House Energy and Environment Committee on March 9, before the General Assembly shut down for 10 weeks due to the novel coronavirus pandemic.
According to bill co-sponsor Rep. Lois Landgraf, a Colorado Springs Republican, the measure is a fix of sorts for legislation that passed in 2019 which banned the use of perfluoroalkyl and polyfluoroalkyl chemicals, known collectively as PFAS.
The 2019 law banned Class B firefighting foams that contain “intentionally added” per- and polyfluoroalkyl substances. Those chemicals were used for decades at Peterson Air Force Base in El Paso County and have been found in the Widefield aquifer, which serves Security, Widefield and Fountain, communities near the base…
Last year’s bill created the clean water process for PFAS, Landgraf said. “What we didn’t realize is that it also eliminated the ability of the airports to stay in business. United could not get their insurance because we banned any use of PFAS. They have to practice with it a couple of times every year to keep their insurance in place,” Landgraf said.
This year’s measure allows the testing to take place in airline hangars. The runoff will be captured in catch basins and then disposed of.
The bill also requires a the state’s solid and hazardous waste commission to come up with a certificate for any facility — like an airport — or firefighting department that shows PFAS is present on the premises.
Landgraf said the certificate will help the state track PFAS. “Right now we don’t know who’s using it and not using it,” she said.
The Colorado Aviation Association backs the bill in its current form, according to lobbyist Kelly Sloan, who pointed out that the use of PFAS is on its way out. The Federal Aviation Administration is planning to phase out the use of PFAS at airports, but for now, airports still have to comply with those federal regulations, he said…
The bill now heads to the House Appropriations Committee.
FromThe Denver Post (Bruce Finley) via The Broomfield Enterprise:
Company officials say tests show contaminants did not exceed state standards for surface water
Contaminated water has been seeping into Sand Creek just up from where it meets the South Platte River near the Suncor Energy oil refinery north of Denver, and company officials on Wednesday said they were monitoring conditions and “will make any necessary repairs” to a spill containment pool behind sandbags where crews were pumping out water.
A sheen of benzene and other chemicals was detected on the surface of Sand Creek on May 7 and again on May 15, company officials said.
Sunday’s heavy rains raised water levels along the creek, leading to a breach of the containment area.
Suncor contractors have drawn water samples from Sand Creek and the South Platte, and tested these for benzene, toluene, ethylbenzene, xylene and methyl tertiary butyl ether, company officials said. The results showed concentrations did not exceed state standards for surface water in those waterways, officials said.
Colorado Department of Public Health and Environment officials did not respond to queries about conditions at the refinery. It is located just north of Denver in Commerce City, along the creek and the Sand Creek Greenway public bicycle path, near where the creek flows into the South Platte.
“Who is watching this?” Adams County Commissioner Steve O’Dorisio said. “I’m concerned about the problems that continue to occur.”
On behalf of the State of Colorado, Attorney General Phil Weiser today filed a lawsuit in federal district court in Denver to protect Colorado’s streams and wetlands from a dangerous federal rule that would leave them vulnerable to pollution under the Clean Water Act.
By radically changing how the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers define “waters of the United States” that are protected under the Clean Water Act, the new 2020 rule will leave a substantial portion of Colorado’s streams and wetlands without federal protection and jeopardize the integrity and quality of Colorado’s waters.
“The federal government’s new definition of ‘waters of the United States’ violates the Clean Water Act, contravenes controlling U.S. Supreme Court precedent, and ignores sound science,” Weiser said. “This illegal action shirks the federal government’s responsibility to implement this law and thrusts on Colorado the responsibility of protecting water quality with limited warning and with no support to do so. We are bringing this lawsuit to stop this new rule and reckless action from taking effect.”
The Clean Water Act protects U.S. streams, wetlands, and rivers from pollution. Previously, under Supreme Court precedent, the rule included ephemeral streams—streams that run because of melting snow or precipitation—and wetlands that aren’t connected on the surface to larger bodies of water.
“We need to challenge this action to avoid a bigger problem for our economy at a time when our state is already hurting from COVID-19. Some flood control, stormwater erosion, transportation, and other important projects may not be able to move forward because the new rule takes away the permitting path needed to ensure environmental protection and project development. That’s a problem that we need to fix,” said John Putnam, Environmental Programs Director, Colorado Department of Public Health and Environment.
The new 2020 rule does not include many ephemeral streams or wetlands without a surface connection. The lawsuit states that the new, narrower definition of the types of water protected under the Clean Water Act eliminates federal jurisdiction over a significant number of Colorado’s tributaries, adjacent waters, and wetlands that affect downstream waters, without providing any rational basis for the rule. This leaves Colorado’s snowmelt streams and wetlands vulnerable to pollution, which would negatively impact our state’s agriculture and outdoor recreation economy.
Through the lawsuit, Colorado is asking the court to maintain the definition in place since the 1980s and to stop the new, unlawful rule from going into effect. In so doing, Colorado is following up on its comment to the agencies, which praised earlier 2008 guidance as legally sound and grounded in science. Maintaining the status quo will also protect important agriculture exemptions, respect state authority to administer water rights, and provide the appropriate level of federal partnership.
A Saturday morning stroll through your local farmers market, is there anything like it? It’s a popular way that many Front Range people decide to spend their weekends, where you get to peruse the abundance and score some of the best food you can buy.
They fill their baskets with organically grown produce, chat with a farmer, walk over to a food truck for a coffee and a pastry and head home with their bounty. These brief interactions allow people to connect with where their food is grown, and put a face to the people who run these farms. But those interactions are threatened, and no, not because of COVID-19.
I am the Board President of the Valley Organic Growers Association (VOGA), representing over 125 farmers, ranchers, vineyard owners and related business operators in the North Fork Valley of western Colorado, many of whom travel to the Front Range to provide food to residents, restaurants, and breweries.
We take pride in being able to grow high-quality food, carefully tended and responsibly grown without additives or chemicals.
We also take pride in providing that food to Coloradans throughout the state. For many of us farmers, the food we grow is an extension of our personalities and represents us and our businesses.
VOGA’s vision is to create a vibrant community of prosperous, local farms that sustain the land and provide healthy agricultural products. To achieve this vision, we are dependent on our public lands.
Earlier this month, the Trump Administration approved a plan that puts the farms in our watershed at serious risk. The Bureau of Land Management’s final plan for the North Fork Valley opens our public lands to oil and gas drilling while removing protections for everything else that matters to us in the North Fork Valley.
For the past 10 years, the Bureau of Land Management has been rewriting a plan to manage the public land in the North Fork Valley. Our area is approximately 40% public land, which includes the headwaters of streams, rivers and ditches that supply irrigation water to our local farms.
VOGA has been participating and commenting on the BLM’s plan every step of the way. We even helped write our own proposal, called the North Fork Alternative, for how public land should be managed in our watershed.
The North Fork Alternative represents a locally grown vision for the North Fork Valley that would keep energy development away from sensitive areas and fosters a diverse, resilient economy. We were glad to see that the BLM included the North Fork Alternative in the planning process in 2016.
In the name of energy dominance, however, the Trump Administration completely dismissed our proposal last week and opened the entirety of our watershed to oil and gas development, without proper restrictions to protect our farms, our food or our livelihoods.
If resource extraction takes off in our watershed, our waterways may become polluted, ruining our region’s model for farm-to-table community agriculture.
Earlier this year, VOGA received a grant to conduct a study on our member’s economic impact within Delta County. For the 167 members of our association, we found the estimated total market value of our farms to be $50-60 million, with estimated annual gross sales to be $4.1 million.
If we want to maintain these numbers and build upon them to support a sustainable, resilient local economy, we need strong protections for our lands, air and water. And that begins with stipulations set forth in the BLM’s plan.
Luckily, Sen. Michael Bennet is on our side. Time and again, his commitment to working with local farmers, ranchers, business owners and conservationists has shined through in the face of this terrible plan.
And now it is no different. Sen. Bennet, thank you for your commitment to protecting the North Fork Valley, and we hope to work with you on a path forward, as farmers and as the local community.
Colorado and other Western states will be hard pressed to shield their rivers and streams under a new federal Clean Water Act rule finalized last month, largely because hundreds of shallow Western rivers are no longer protected, and writing new state laws and finding the cash to fill the regulatory gap will likely take years to accomplish, officials said.
“We are pleased the final rule protects important agriculture exemptions and provides continued assurance that states retain authority and primary responsibility over land and water resources…However, the federal government’s decision to remove from federal oversight ephemeral waters, certain intermittent streams, and many wetlands is based on flawed legal reasoning and lacks a scientific basis,” Weiser said in a statement.
Whether Colorado will seek an injunction to stop the new rule from being enforced and whether it will join other Western states in a legal challenge isn’t clear. Weiser and Pfaltzgraff declined to discuss their legal strategy, other than vowing to take action.
The Colorado Water Congress, which represents hundreds of water agencies and agricultural interests, had been largely supportive of the new rule before it was finalized. But Executive Director Doug Kemper said the group hasn’t finished its analysis of the final version.
Formally adopted by the U.S. Environmental Protection Agency April 21, the move to significantly revise the WOTUS rule began after President Trump took office and vowed to reverse policies established under the Obama Administration.
The new rule has already triggered a handful of lawsuits seeking to stop the EPA from enforcing them. One was filed by cattle growers in New Mexico alleging that the rule is still too onerous, and at least two others have been filed by environmental interests in South Carolina and Massachusetts, who say the rule leaves too many streams unprotected.
And more are expected.
The Clean Water Act (CWA) has been legally hamstrung for years over murky definitions about which waterways fall under its jurisdiction, which wetlands must be regulated, what kinds of dredge-and-fill work in waterways should be permitted, what authority the CWA has over activities on farms and Western irrigation ditches, and what is allowable for industries and wastewater treatment plants to discharge into streams.
One rule never fits all
Administered by the U.S. Army Corps of Engineers and the EPA, the CWA, now nearly 50 years old, is credited with making U.S. waters some of the cleanest in the world. But it has also been, at times, fiendishly difficult to administer, in part because of the nation’s widely different geographies.
Go to the East or Midwest, and massive rivers, such as the Ohio and Missouri, are filled with barge and shipping traffic and are clearly “navigable.” That was the term early courts used to determine how water would be regulated. If a stream was considered navigable, it was subject to federal law.
But Colorado and other Western states rely on shallow streams that don’t carry traditional commercial traffic. The U.S. Geological Survey estimates 44 percent of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24 percent are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32 percent of Colorado streams are classified as being perennial, meaning they flow year round.
Under the new rule, only perennial and intermittent streams, or those deemed navigable, will be regulated, meaning that thousands of miles of streams in Colorado and other Western states would no longer be protected under the law.
A financial quandary
And that worries state water quality officials who are responsible for protecting Colorado’s streams.
They warn that writing state rules and finding millions of dollars in new cash to enforce water quality protections will be difficult, especially as the COVID-19 budget crisis unfolds. Officials of the Colorado Department of Public Health and Environment (CDPHE), which includes the Water Quality Control Division, say that until state rules are in place, new housing developments and other projects could be stopped because there is no mechanism yet to issue the permits that were once issued by the federal government.
“While the specific impacts of this rule still are being determined, there’s no question this rollback removes huge swaths of Colorado’s waters from federal jurisdiction—the most of any administration since the passage of the Clean Water Act in 1972. The state will need to put in significant resources to determine how to continue to protect these waters and to determine how this rule will be implemented as the rule is unclear as written,” the CDPHE said in an email.
“Specific construction projects and associated permitting processes that were originally covered…won’t be able to move forward without doing so illegally and harming the environment,” the CDPHE said.
Melinda Kassen, general counsel for the Theodore Roosevelt Conservation Partnership, said it would make sense to pursue an injunction to give the state time to set up its own regulations and find a way to fund them.
“If you read the economic analysis that accompanies the rule, there are assumptions that the states will step up and take this over. The potential is for it to be really dysfunctional. We’ve got to get something set up,” Kassen said.
EPA officials have said they don’t expect federal funding to enforce the Clean Water Act will be reduced, even though the new WOTUS rule is smaller in scope and governs fewer waterways.
Still the CDPHE and most opponents of the new rule believe millions of dollars will be needed to fill in any regulatory gap.
How far Colorado will go to challenge the new rule isn’t clear. The CDPHE’s Pfaltzgraff said his agency is still analyzing its next steps.
“It is now up to the state to provide the necessary protection of both Colorado’s economy and the environment,” Pfaltzgraff said in a statement. “We are going to do everything we can, while also addressing the impacts from COVID-19, to ensure Coloradans live in the healthy state they deserve.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org or @jerd_smith.
The Southeastern Colorado Water Conservancy District and U.S. Bureau of Reclamation recently adopted a project management plan that will guide construction of the Arkansas Valley Conduit…
Terry Scanga, general manager of the Upper Arkansas Water Conservancy District, said he didn’t see the AVC having much impact on Salidans and others in the area. “It’s not going to change river flows,” he said. “It’s not going to impact the allocation (of water) communities in the upper basin get.”
After thinking about it for a second he said some transit loss might have a “minimal impact” on irrigators, but added that the advantages of the project far outweigh those potential effects.
[Sam] Braverman said they’re not creating any new water diversions from Colorado’s Western Slope. The big change, he said, is that water will now be piped from Pueblo to surrounding municipalities instead of letting it flow to them in the river, which will improve drinking water quality…
Salinity, selenium and uranium found in the natural environment all pose water-quality challenges for the Arkansas River in southeastern Colorado.
Several communities the conduit will serve currently can’t drink their tap water.
“There’s at least 5,000 people who literally have radioactive water coming out of their pipes,” Braverman said. “They can’t drink their water, and (the municipalities) can’t afford to filter it out.”
Braverman said another 11,000-12,000 people in the communities get their water from reverse osmosis, but the state doesn’t see those systems as permanent solutions because they put their effluent back into the river. He said drying the effluent, packing it and taking it to landfills would be too costly to be a realistic solution.
“There’s no way those communities could afford to do that,” he said. “The AVC is really the only answer for all of these communities; this a game changer for disadvantaged areas.”
The AVC will provide water for municipal and industrial use.
The project management plan describes how the project will be executed, monitored and controlled.
Under the plan, the Pueblo Board of Water Works will deliver AVC water to a point east of Pueblo. A contract among the Reclamation Bureau, Pueblo Water and Southeastern Colorado Water Conservancy District is in the discussion stage. From that point, the bureau will construct the trunk line, a treatment plant and water tanks, while Southeastern will coordinate with communities to fund and build connections.
Southeastern will serve as lead on the “spur and delivery lines” portion of the project and seek funding to design and construct this portion of the project, $100 million of which has already been secured from the Colorado Water Conservation Board, subject to legislative approval.
Braverman said they just started final design on the first 12 miles of the pipeline…
Braverman said communities the AVC will serve have been hearing about it for decades, but getting the $28 million recently was the first chunk of money they’ve secured to begin construction.
“That was a complete shift from where we were,” Braverman said. “Now it’s just a matter of the funding stream continuing.”
Environmental activists got an unwelcome gift from the federal government on the eve of the fiftieth anniversary of Earth Day, when officials with the Environmental Protection Agency revoked clean-water protections for thousands of streams across Colorado. Now advocates and state officials are taking President Donald Trump’s administration to court.
One of many bedrock environmental laws targeted for rollbacks by the Trump administration, the Clean Water Act has protected the “waters of the United States,” including rivers, lakes, streams and wetlands, since its passage in 1972. But a rule change announced by the Trump administration on April 21 would dramatically narrow the definition of those “waters,” removing protections for many wetlands and smaller, intermittent streams, and potentially threatening ecosystems and drinking water supplies…
The EPA’s decision will hit especially hard in Colorado and other Western states where water is already a precious resource. The new rule excludes all “ephemeral” streams, which only flow after rainfall or snowmelt, and some “intermittent” streams, which only flow for part of the year. An estimated 55 percent of streams in Colorado are classified as intermittent or ephemeral, according to conservation group Trout Unlimited…
Under the new rule, which will formally take effect on June 20, developers and industrial interests will be able to build in many wetland areas or near ephemeral streams without applying for Clean Water Act permits. That could dramatically speed up construction of projects like oil and gas pipelines, while environmental-review processes are significantly weakened.
“Lobbyists for corporate agribusiness, developers, and the oil and gas industry have long demanded that federal protections be removed for streams and wetlands,” says Hannah Collazo, director of Environment Colorado. “This is just plain wrong. Clean water is vital for our health, our way of life, and for nature itself.”
Environmental groups have already announced plans to sue over what they call Trump’s “Dirty Water Rule,” and so has Colorado Attorney General Phil Weiser, who said in a statement that the administration’s decision is “based on flawed legal reasoning and lacks a scientific basis.”
Attorney General Phil Weiser released the following statement regarding the final Waters of the United States rule that the U.S. Environmental Protection Agency and Army Corps of Engineers released today:
“The federal government’s final Waters of the United States rule is too limited and excludes a significant percentage of Colorado’s waters from Clean Water Act protections. The final rule threatens to create unacceptable impacts to the state’s ability to protect our precious state water resources, and, in the absence of extraordinary state efforts to fill the gaps left by the federal government, will harm Colorado’s economy and water quality.
“We are pleased the final rule protects important agriculture exemptions and provides continued assurance that states retain authority and primary responsibility over land and water resources that are important to Colorado. However, the federal government’s decision to remove from federal oversight ephemeral waters, certain intermittent streams, and many wetlands is based on flawed legal reasoning and lacks a scientific basis.
“We are going to take legal action to protect Colorado waters and prevent the harmful aspects of the final rule from taking effect here.”
FromThe Grand Junction Daily Sentinel (Dennis Webb):
The Environmental Protection Agency and Army Corps of Engineers published the new rule Tuesday in the Federal Register, after announcing its components in January. It takes effect June 22.
Much of the ongoing dispute surrounds how “waters of the United States” are defined in implementing the Clean Water Act.
The Trump administration says its new rule applies to territorial seas and traditional navigable waters, perennial and intermittent tributaries to those waters, wetlands adjacent to waters falling under the rule’s jurisdiction, and some lakes, ponds and impoundments. Groundwater, ephemeral streams that flow only due to rainfall, many ditches and prior converted cropland are among waters exempted from the rule.
Weiser and the administration of fellow Democrat Gov. Jared Polis don’t totally oppose the new rule, praising its agricultural exemptions and saying it recognizes state authority…
The Colorado Department of Public Health and Environment says the rule eliminates many federal protections and almost 70% of Colorado waters could be impacted by the rule.
The final BLM plan for managing multiple uses on federal land in the Uncompahgre Plateau unveiled earlier this month did not limit oil and gas development in the North Fork Valley.
For nearly a decade, a group of farmers in the North Fork Valley joined with local tourism businesses and conservation groups to craft a resource management plan that could help the Bureau of Land Management shepherd the multiple uses of the valley’s public lands for the next 20 years.
More than 600 mining jobs disappeared in that decade of planning as the coal industry contracted and mines closed. Entrepreneurs in the lush communities around Paonia and Hotchkiss helped diversify the local economy from reliance on a single, extractive industry to an eclectic mix of organic agritourism and outdoor recreation.
The group’s North Fork Alternative Plan proposed energy development on 25% of the valley’s public lands, with increased protections for water and recreational attractions in the region.
“We put a lot of effort into negotiating with the BLM with what we thought was a pretty constructive way to share our values and how they should consider those values in managing the lands here,” said Mark Waltermire, whose Thistle Whistle farm is among 140 members in the North Fork’s Valley Organic Growers Association.
The final BLM plan for managing multiple uses on federal land in the Uncompahgre Plateau unveiled earlier this month did not limit oil and gas development in the North Fork Valley. And it did not weigh the state’s concerns over energy projects injuring wildlife, habitat and air quality. But as the first resource management plan released under the Trump Administration, it did represent the president’s pivot toward “energy dominance” by reducing regulations and greenlighting exponentially more coal mining.
“I feel betrayed by the system,” said Waltermire this week after spending the day fixing a tractor on his Delta County farm. “Most definitely this is a step backward. Really it’s even worse. We have lived with coal for 100 years and coal has proven to be compatible with the agriculture we practice here. But gas and the oil development is a different beast. It is a much more substantial threat to our economy, with increased traffic and the potential for spills. That could destroy our reputation that we have built for our valley. It could change everything.”
Earlier this month the agency released the final plan for managing the vast swath of the Western Slope, which is an update to the region’s 1989 RMP. Many of the wildlife, habitat and environment-focused objections to the Trump Administration’s “energy dominance” push to loosen regulations around domestic energy production — including those from Gov. Jared Polis, Colorado Parks & Wildlife, county commissioners, conservation groups and local residents — were dismissed.
As Colorado’s local BLM officials honed the preferred alternative — Alternative D — for the RMP last fall, the agency’s higher-ups crafted a new alternative. Alternative E identified energy and mineral development as key planning issues, and promoted access and a reduced regulatory burden alongside economic development as top priorities.
The BLM said the RMP would contribute $2.5 billion in economic activity into the region and support 950 jobs a year for the next 20 years.
The Alternative E plan:
Increased coal available for leasing by 189%, to 371,250 acres from 144,790 acres.
Added 13,020 acres to the region’s 840,440 acres open for mineral development.
Removed more than 30,000 [acres] from development in areas previously identified for leasing.
Cut acres the BLM could sell from 9,850 to 1,930.
Added six special recreation management areas and three extensive recreation management areas, setting aside 186,920 acres for recreation management.
The final draft of the proposed RMP conflicted with new state laws protecting wildlife, recreation access and improving air quality, so Polis last year sent a letter to the BLM’s Colorado director expressing his concerns as part of a consistency review that makes sure the agency’s plan aligned with state policies.
Specifically the state wanted the agency to limit the density of development — including oil and gas facilities — to one structure for every square mile to help protect wildlife corridors. It also asked the agency to develop a comprehensive plan to protect and conserve the Gunnison sage grouse and its habitat. Polis noted that the BLM plan allowed an increase in greenhouse gas emissions from oil and gas development that conflicted with last year’s House Bill 1261, which aims to cut those emissions by 90%. The BLM plan also conflicted with Senate Bill 181, which allows the state to consider public health and the environment when regulating oil and gas development.
The BLM’s final plan released this month did not include the state’s push for limiting the density of development or creating a region-wide wildlife and sage grouse conservation plan. But it did agree to protect 33,000 acres of riparian habitat from surface development and initiate a future statewide planning effort to study density on BLM land. The agency also agreed to coordinate with the state over potential development in sage grouse habitat.
“Our issue is that we worked on the preferred alternative, Alternative D and we sent that to Washington for approval. Alternative E was never contemplated and that’s what came back from D.C. We were not able to weigh in on that option,” said Department of Natural Resources director Dan Gibbs, who joined Polis in the only process available for commenting on the final proposal: a protest letter to the BLM over its proposed RMP.
Gibbs said he was happy the agency heard a portion of the state’s protests and the final decision included plans to work more closely with the state on a border-to-border plan for limiting development density…
The Public Employees for Environmental Responsibility group uncovered a BLM document summarizing an October 2018 meeting where the agency’s Washington D.C. leaders told Uncompahgre Field Office managers that their preferred alternative “misses the mark” and was “not in line with the administration’s direction to decrease the regulatory burden and increase access.”
San Miguel County, for example, asked the BLM to expand areas of critical concerns in the San Miguel River watershed and remove those riparian areas from mineral leasing. The final plan reduced the size of those areas and kept them open for mineral leasing. Montrose County asked for some areas inside Camelback, Dry Creek and Roc Creek to be managed for wilderness protection, but the final plan did not set aside any land in the county for wilderness protection.
San Miguel County commissioner Hilary Cooper said that while the plan is slightly improved by the promise to work with Parks and Wildlife on a density-limiting plan, “it still feels like the BLM is not a willing partner in the management of our land.”
This month he blasted the plan as “completely inadequate.”
“You see what happened today?” he said this week, after the price of a barrel of oil collapsed to below $0 for the first time as a stalled nation sits at home and oil stockpiles swell.
“That is really good news. I bet they are not going to look to develop new rigs for 10 years now,” Schwartz said. “We seem to have bought ourselves some time. Gas and oil are looking to survive right now. And if they look to fracking in our valley, they know we will fight them tooth and nail every step of the way. They don’t want that.
“And really, who knows what will happen in the future,” he said. “We will have a new administration in a year or four years and this whole thing could change. Either way, we are coming out the end of this solid and safe.”
FromThe High Country News [April 14, 2020] (Ophelia Watahomigie-Corliss):
Since time immemorial, the Havasupai have lived inside the natural wonder. We face yet another peril.
If you were one of the 6.3 million people who visited Grand Canyon National Park last year, chances are you stood on the rim and noticed a green ribbon of trees thousands of feet below you. The National Park Service calls it “Indian Garden.” And it was truly a garden, once: Our Havasupai relatives, the Tilousi family, lived and gardened there a century ago, until the National Park Service kicked them out. The Bright Angel Trail hikers use to reach this area today is an old Havasupai trail. When the Fred Harvey Company set up its hospitality industry on the South Rim near the turn of the 20th century, they hired Havasupai and created a work camp for them called Supai Camp.
Last year, the park celebrated its centennial. There were special events, but I doubt you heard anything about us, the Havasupai — the Guardians of the Grand Canyon. You may not even know about Canyon Mine, the proposed uranium mine that threatens Havasu Creek, the entire water supply of the Havasupai Reservation. Historical erasure has made us invisible. Now, our very survival is at stake, and we are asking for your help.
Inside what you call Grand Canyon National Park, the Havasupai have lived since time immemorial. We still live here. Fred Harvey and the Santa Fe Railway reached the Grand Canyon in 1901, and thousands of tourists came in their wake. Billy Burro was the last Havasupai to live in Indian Garden, a place that had been enjoyed by our people for centuries. But industry began to dictate where Indians could and couldn’t be, and public areas were forbidden because it was considered bad for business. Discrimination was rampant. At the Grand Canyon, we Havasupais were no longer welcome on our own land, because now it was reserved for tourists. Eventually, it was taken away altogether. Grand Canyon became a national park in 1919, and Billy, together with all Havasupais, were kicked out of Indian Garden. The people were relocated to the Indian work camp, with little option but to work for the railway. These were heartbreaking times for us, as our home became a tourist attraction. We had to endure constant racism; people like Billy were given the last name “Burro,” for example, as if we were no more than pack animals.
It’s time Grand Canyon officials took some responsibility and helped educate visitors about our history, land and water. The South Rim was taken by the federal government to create Grand Canyon National Park, and Havasupai voices were ignored when we pleaded for our homeland. In the early 1930s, the Park Service burned Supai Camp to the ground, and our people, including elders and children, were loaded into covered wagons in the snow, taken to the canyon’s rim and forced to walk down a grueling 17-mile trail to Supai Village. That is where the Havasupai Reservation was created in 1880. Before that, however, Supai Village was used as our summer home. Our longtime winter home had always been the newly designated park, but now we had lost it forever. In the 1970s, the park hired a new superintendent, who shut off our food, septic and water supply. Fortunately, we already relied on the springs in the canyon, and so we weathered the assault.
Now we have a new threat to deal with. Fifteen miles from the park boundary is a uranium mine that threatens the entire water supply for the 426 permanent residents of the Havasupai Reservation. The mine shaft at Canyon Mine is 1,470 feet below the surface, and if it leaks, it will contaminate the Redwall-Muav aquifer, which discharges into Havasu Creek — our only source of water. We have been fighting uranium mining for 40 years, but we cannot do it alone, especially if we continue to be erased.
Havasuw’ Baaja means the people of the blue-green waters. Those waters are the waters of Havasu Creek, and we are the original Guardians of the Grand Canyon. Thousands of more recent arrivals have since settled this land, built homes and raised families on our ancestral lands, and we know they love the canyon, too. Like us, they’ve come to know the names of the mountains, trails and waters in the region. The Grand Canyon has called them here, to make their lives in this incredible corner of the world. We are not so different after all.
And now it’s time for them — and for everyone who loves the Grand Canyon — to stand with us, to get to know who we are, and to work with us toward a just and shared vision for the next 100 years of this national park. We want the park to recognize our histories and to share that story permanently at the visitor center — to find a place for us in all their exhibits and in permanent signage throughout the park. Let us rechristen the landscape here, changing the names of places, trails and springs back to the Indigenous names, the ones the tribes are comfortable sharing with the public. All park rangers, personnel, outfitters and river runners should receive cultural sensitivity training, so they can teach visitors about the true history of the land.
Congress should pass S.3127 – the Grand Canyon Centennial Protection Act. This law will protect the 1 million acres of public land surrounding Grand Canyon National Park from the catastrophic impacts of uranium mining; it will also protect our homes in Supai Village.
Often, we gather at Red Butte, one of our sacred sites, to protest the project. There, we educate people about the many efforts to shut down the Canyon Mine, which is just three miles away. We invite you to join us here.
You are invited to stand strong with us and help us protect this landscape we all love, which is also the place we call home — the Grand Canyon. We have been trying to do this for many years, and we will continue to do for all generations to come. Please join us.
Ophelia Watahomigie-Corliss is a Havasupai tribal councilwoman. Email High Country News at email@example.com.
The Trump administration on Thursday gutted an Obama-era rule that compelled the country’s coal plants to cut back emissions of mercury and other human health hazards, a move designed to limit future regulation of air pollutants from coal- and oil-fired power plants.
Environmental Protection Agency chief Andrew Wheeler said the rollback was reversing what he depicted as regulatory overreach by the Obama administration. “We have put in place an honest accounting method that balances” the cost to utilities with public safety, he said.
Wheeler is a former coal lobbyist whose previous clients have gotten many of the regulatory rollbacks they sought from the Trump administration.
Environmental and public health groups and Democratic lawmakers faulted the administration for pressing forward with a series of rollbacks easing pollution rules for industry — in the final six months of President Donald Trump’s current term — while the coronavirus pandemic rivets the world’s attention.
With rollbacks on air pollution protections, the “EPA is all but ensuring that higher levels of harmful air pollution will make it harder for people to recover in the long run” from the disease caused by the coronavirus, given the lasting harm the illness does to victims hearts and lungs, said Delaware Sen. Tom Carper, the senior Democrat on the Senate Environment and Public Works Committee.
The EPA move leaves in place standards for emissions of mercury, which damages the developing brains of children and has has been linked to a series of other ailments. But the changes greatly reduce the health benefits that regulators can consider in crafting futures rules for power plant emissions. That undermines the 2011 mercury rule and limits regulators’ ability to tackle the range of soot, heavy metals, toxic gases and other hazards from fossil fuel power plants.
The Trump administration contends the mercury cleanup was not “appropriate and necessary,” a legal benchmark under the country’s landmark Clean Air Act.
The Obama rule led to what electric utilities say was an $18 billion cleanup of mercury and other toxins from the smokestacks of coal-fired power plants. EPA staffers’ own analysis said the rule curbed mercury’s devastating neurological damage to children and prevented thousands of premature deaths annually, among other public health benefits.
Controversy over pollutants from coal-fired power plants moved to a higher level Thursday after the U.S. Environmental Protection Agency announced it had revised a cost benefit analysis over the impacts of mercury emissions regulations imposed during the Obama era.
The federal agency said the restrictions on mercury emissions through technology controls were not justified, backing a 2015 U.S. Supreme Court decision that directed the agency to complete another review.
EPA Administrator Andrew Wheeler, in a teleconference, said the 2012 Obama-era rule remains in place and no additional mercury emissions will happen due to the revised analysis.
He added that critics of the Thursday announcement are either purposefully misreading the revisions or don’t understand…
In a major victory for the energy industry, the U.S. Supreme Court ruled against federal regulators’ attempts to curb mercury emissions from power plants in 2015, saying the government wrongly failed to take cost into consideration.
The 5-4 decision overturned the landmark rule, which was the first attempt by the EPA to curb mercury and other pollutants from coal-fired power plants.
Michigan’s lawsuit against the regulation was joined by 21 other GOP-led states, including Utah, in a fight to get it tossed.
The new “supplemental cost finding” announced by the federal agency found compliance costs for mercury emissions at power plants ranging from $7.4 billion to $9.6 billion annually due to the rule and the benefits in terms of reduction in costs such as health care to be around $6 million.
Wheeler added that the Obama administration’s approach was that any new regulation could be justified, regardless of the cost…
Moms Clean Air Force issued a statement expressing its outrage over the move.
“While America suffers devastating public health impacts of the coronavirus outbreak — a lethal respiratory pandemic — Andrew Wheeler and the Trump administration continue their cynical campaign to protect industrial polluters and undermine lifesaving pollution protections,” said co-founder Dominique Browning.
The organization added that the EPA is gambling with the health of children by giving any sort of nod to coal-fired power plants.
Wheeler dismissed any criticism, again reiterating the revision released Thursday was the result of a court-directed action to correct flaws of a previous administration’s conclusions over costs and benefits.
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From Water Education Colorado (Laura Paskus and Caitlin Coleman):
When Water Justice is Absent, Communities Speak Up
Two years ago, a company that analyzes property data crunched the numbers on more than 8,600 zip codes in the United States and found that America’s most polluted neighborhood was in northeast Denver. The study, from ATTOM Data Solutions, shows that Denver’s 80216 zip code, which includes Globeville, Elyria-Swansea and River North, topped its “environmental hazard index.” As of 2017, the U.S. Environmental Protection Agency’s Toxic Release Inventory reported that 22 facilities were still releasing toxic chemicals in 80216, chemicals such as nickel, lead, methanol, creosote and more.
“The neighborhood is parked between gas refineries, the former airport, and then, also, what was at one time an Army base making mustard gas,” says University of Denver law professor Tom Romero, II, who has spent his career dissecting the factors behind environmental injustices in Colorado. There are two Superfund sites and six brownfield sites in 80216, plus the knot of Interstate 70 and Interstate 25 severs the neighborhood from the rest of Denver and increases pollution from highway traffic. The area is also home to a predominantly low-income, Hispanic and Latinx community, says Candi CdeBaca, Denver City Councilwoman for northeast Denver’s District 9.
Last year, CdeBaca became the first person from the neighborhoods to represent on the Denver City Council, ever. She points to an opposition campaign to the Central 70 Project as the beginning of the neighborhood rallying to achieve representation against environmental inequities.
The Central 70 Project broke ground in 2018 to widen the highway through Denver. It will demolish the viaduct that carries I-70 over Elyria-Swansea, replacing it with a below-grade highway. Residents had a list of worries: losing their homes to eminent domain, living even closer to the highway, and unearthing a Superfund site, which they feared would re-expose harmful heavy metals and increase health risks, CdeBaca says.
Their opposition campaign didn’t stop the highway work, but the community came together and won in one sense—the Colorado Department of Transportation will pay for a long-term health study, collecting data to determine whether toxins in the air, soil and water are making residents sick. They also gained a louder voice. “Those losses were the first start of me galvanizing some community power around environmental racism,” says CdeBaca. “Now we have this amplification of groups who never had representation in our government from the neighborhoods that were polluted.” She points to the importance of local voice and representation in all issues, particularly for communities that want to bring about environmental justice. “There is nothing that I support more than activating people power,” CdeBaca says.
With water affordability, access and quality challenges—all of which can translate into health impacts—the role of water in Colorado isn’t always one of fostering healthy communities, yet it could and should be. What contributes to these less-than-whole communities? And what does it take to recognize the issues and how they evolved, address power imbalances, engage the community, and restore equity where it’s been missing?
What is Environmental Justice?
Environmental injustices in Colorado, or anywhere, can span cities and suburbs, sovereign tribal lands, and rural communities. They have their roots in narratives of immigration, development and industry, and political power dynamics, further influenced by evolving legal and regulatory frameworks.
In 1990, EPA Administrator William Reilly created an Environmental Equity Workgroup to assess evidence that “racial minority and low-income communities bear a higher environmental risk burden than the general population.” The agency, which went on to establish an Environmental Equity office in 1992, later changing its name to the Office of Environmental Justice in 1994, defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” It has since expanded to offer a range of programs that provide services from grant funding to technical assistance and training. It also runs a National Environmental Justice Hotline.
Another early definition of environmental justice came from University of Michigan professor Bunyan Bryant, who said it refers to places “where people can interact with confidence that the environment is safe, nurturing and productive. Environmental justice is served when people can realize their highest potential.”
Scholars add additional layers to the term—it’s not just about identifying who is or isn’t harmed but includes some form of restitution, says Kelsea MacIlroy, an adjunct professor and PhD candidate in the sociology department at Colorado State University.
“There are a lot of different ways to talk about justice that aren’t just about who and how but also about a long-term social justice component,” MacIlroy says. “Does the community actually have an authentic seat at the table in addressing the ills?”
80216 may feel it all. “Denver was segregated, and that segregation manifested itself in a variety of ways in terms of water,” Romero says. “It meant that Denver’s communities of color, particularly African Americans and Mexican Americans, were living in close proximity to the areas with heavy industry, where the affordable housing is.” That’s a pattern and practice, he says, that was established in the 20th century and continues today. Many environmental justice cases have similar roots, as repeated practices that ultimately create winners and losers.
When Government Fails
Americans watched one of the most high-profile environmental justice cases unfold in Flint, Michigan, in 2015 and 2016 when corroded lead pipes poisoned the population.
To save money, in April 2014, the city switched its drinking water source and began supplying residents with Flint River water that wasn’t treated under federal anti-corrosion rules. The population was predominantly black, and more than 40 percent of residents were below the poverty threshold. According to the National Institute of Environmental Health Sciences, no level of lead exposure is safe but higher lead exposure leads to more health challenges including anemia, kidney and brain damage, heart disease, decreased IQ and more. In children, the impacts are especially toxic.
Residents began noticing a rusty tint to their tap water in the summer of 2015, but it wasn’t until October 2015 that the governor ordered Flint’s water source switched. By then, though the new water was safe, the plumbing wasn’t—corroded pipes continued to leach lead into drinking water. Bottled water and free faucet filters to remove lead at the point of use were distributed.
More than five years after the crisis in Flint began, the city and its residents are still recovering. The city’s FAST Start program is removing and replacing lead and galvanized steel service lines across the city, but it’s a big, expensive job. FAST Start has been funded with $25 million from the State of Michigan and $100 million allocated by Congress through the Federal Water Infrastructure Improvement for the Nation Act of 2016. As of December 2019, less than 40 percent of the city’s pipes had been replaced, with many residents still relying on faucet filters or bottled water.
Fifteen state and local officials were charged with various crimes, including involuntary manslaughter—some took plea deals and most cases were dropped. Residents now mistrust their water and water providers. That mistrust has flooded the nation, with many more communities now coping with elevated lead levels and lead pipe replacement.
According to the independent Flint Water Advisory Task Force’s final report, released in 2016, breakdowns in protocol, dismissal of problems, and failure to protect people occurred at nearly every level of government. Not only were customers supplied with unsafe drinking water, government officials were slow to acknowledge the problems and rectify the issue by providing safe water. According to the 2016 report, the Flint water crisis is a “story of government failure, intransigence, unpreparedness, delay, inaction, and environmental justice.” Had there been local control of resources and decisions, they write, the problems wouldn’t have occurred in the first place.
Coping with Forever Chemicals
Flint’s toxic water is not unlike the water quality issues discovered in 2016 in the Colorado towns of Fountain and Security-Widefield. That’s when water providers and residents learned that PFAS chemicals, short for per- and poly-fluoroalkyl substances, were detected at levels above EPA’s new 2016 health advisory levels. The source of the chemicals: firefighting foam used for decades to extinguish training fuel fires at the U.S. Air Force’s Peterson Air Force Base. The Air Force now uses a replacement foam at the base, and in 2019, the Colorado Legislature enacted restrictions and bans on PFAS foam, but the damage has been done. PFAS are known as “forever chemicals” because they bioaccumulate and remain in the environment for a long time, with half lives (the amount of time it takes the chemical to decrease to half its original value) in humans of two to eight years, depending on the chemical. They have been linked to cancers, liver and kidney damage, high cholesterol, low infant birth weight, and other ailments.
“We ended up having 16 family members that lived within that area that had cancer, and five of them died of kidney cancer,” said Mark Favors, during a public event on PFAS at Colorado School of Mines in January 2020. Favors is a former resident of Security, a U.S. Army veteran, a PFAS activist, and member of the Fountain Valley Clean Water Coalition. “A lot of [my family] are military veterans. One of my cousins, while he was doing two combat tours in Iraq, the Air Force was contaminating their drinking water. That’s the crazy part. How they’ve admitted it and it’s just hard to get any type of justice on the issue,” Favors says.
These southern El Paso County towns aren’t home to what are often considered disadvantaged populations—the poverty rate is between 8 and 9 percent, slightly less than the statewide average; about 60 percent of residents are white, and about 20 percent are Hispanic or Latinx, according to the 2017 U.S. Census. However, census numbers don’t represent military personnel who temporarily reside in the area. According to El Paso County’s Health Indicators report, published in 2012, four military bases in the county employ 40,500 military personnel and about 21,000 contract personnel.
When EPA tightened its health advisory levels in 2016, they were 10 times more restrictive than what the agency had previously advised, and water providers realized they had a problem. They acted quickly to provide residents with free bottled water and water filling stations while they suspended use of the aquifer, then worked to broker deals to purchase clean water from other municipalities. Some of those deals were only temporary. Since June 2018, the City of Fountain has worked to get back on its groundwater supply, treating the groundwater with granular activated carbon units provided by the Air Force. Now it is working with the U.S. Army Corps of Engineers to construct a full, permanent groundwater treatment plant. The story in Security is similar—the Security Water and Sanitation District has been importing water, primarily from Pueblo Reservoir, to meet the needs of its residents since 2016, which involved building new pipelines and purchasing extra water from Colorado Springs Utilities—an added cost. Security avoided raising water rates for a time, paying those costs out of its cash reserves. By 2018, residents had to absorb a 15 percent rate increase, with another 9.5 percent increase in 2019.
The Army Corps of Engineers is constructing a treatment facility in Security, too, which should be complete by the end of 2020. Once the plant is finished, Security will switch back to a combination of groundwater and surface water, and rates should stabilize once the costs of those pipelines are recovered, says Roy Heald, general manager at Security Water and Sanitation Districts.
Who pays to protect the health of those who rely on this water? “What responsibility did [the Air Force] have in rectifying this? What about the local sanitation districts? They have to deal with this. It’s not their fault but they’re tasked with giving clean water,” says MacIlroy at Colorado State University.
“The Air Force really has stepped up,” Heald says. But they may have to step up further—in 2019, the Security Water and Sanitation Districts and the Pikes Peak Community Foundation, another affected entity, sued the Air Force to recoup the costs of purchasing and piping in clean water. Their lawsuit cites negligence for disposal of chemicals, remediation of contamination, and breaching a responsibility to prevent dangerous conditions on the defendant’s property. Heald wouldn’t comment on the pending lawsuit, but says, “As long as [cash] reserves are at an adequate level, if we received a windfall there would be no place else for it to go besides back to our customers.” Those recouped costs would likely take the form of lower or stabilized rates.
Residents are also pushing for justice through a class-action lawsuit brought by the Colorado Springs-based McDivitt Lawfirm, which has teamed up with a personal injury law firm in New York to file against 3M, Tyco Fire Products, and other manufacturers of the firefighting foam.
“There’s going to have to be some sort of accountability and justice for these people who unknowingly, for years, drank colorless, odorless high amounts of PFAS,” says Favors. He calls for better oversight and demands that polluters are held accountable.
As for coping with PFAS-related health challenges, there are still a lot of unknowns, but El Paso County was selected to participate in two national Centers for Disease Control and Prevention studies to better assess the dangers of human exposure to PFAS, and to evaluate exposure pathways.
Locally, the study and lawsuits might help recoup some financial damages—but PFAS-related water contamination isn’t isolated to these Colorado communities. In July 2019, the Environmental Working Group mapped at least 712 documented cases of PFAS contamination across 49 states. Lawmakers in the U.S. House of Representatives, hoping to implement a national PFAS drinking water standard, estimate the number is even higher: 1,400 communities suffer from PFAS contamination. A U.S. Senate version of a PFAS-regulating bill has yet to be introduced. But in February, EPA released a draft proposal to consider regulating PFOS and PFOA, just two of the thousands of PFAS.
Justice through Water Rights
Environmental justice isn’t exclusively an urban issue. Injustices involving pollution, public health, access, affordability and water can be wrought anyplace—including rural and suburban areas. For rural communities, the issue comes to a head when people, organizations or entities in power seek more water for their needs at the cost of others.
In southern Colorado’s San Luis Valley, acequia communities fought for years to protect their water rights and way of life. Acequias are an equity-based irrigation system introduced by the original Spanish and Mexican settlers of southern Colorado. “What it means is that the entire community is only benefitted when all resources are shared,” says Judy Lopez, conservation project manager with Colorado Open Lands. There, Lopez works with landowners to preserve wildlife habitat, forests, culturally significant lands, and ag lands—including those served by acequias.
The Town of San Luis, the heart of Colorado’s acequia community, is one of the most economically disadvantaged in the state. It’s in Costilla County, where more than 60 percent of the population is Hispanic or Latinx—more than any other county in Colorado—and 25 percent of the population live in poverty, according to the 2017 U.S. Census. But the people there are long-time landowners, never separated from the land their ancestors settled, four to seven generations back, Lopez says. They have the state’s original water rights to match, including Colorado’s oldest continuously operated water right, the San Luis People’s Ditch, an acequia established in 1852.
Prior to statehood, the territorial government recognized acequia water rights. But when the Colorado Constitution established the right of prior appropriation, the priority scheme of “first in time, first in right” became the law, challenging communal rights.
“It was very difficult for [acequias] to go to water court and say, ‘This guy is taking my water,’” Lopez says. “It was very difficult to quantify the use and who was using it.”
It wasn’t until 2009 that the Colorado Legislature passed the Acequia Recognition Law. The law was developed by Rep. Ed Vigil with the help of the Sangre de Cristo Acequia Association, an entity that represents more than 73 acequias and 300 families who depend on them. Amended in 2013, the law solidifies the rights of acequia users. According to the Colorado Acequia Handbook, it allows “acequias to continue to exercise their traditional roles in governing community access to water, and also strengthens their ability to protect their water.”
In order to be recognized under the Acequia Recognition Act, acequias needed bylaws. Over the past six years, Colorado Open Lands, the Sangre de Cristo Acequia Association, and the University of Colorado Boulder have partnered to help 42 acequias write bylaws, thereby protecting their water. “The bylaws were still based, in large part, on those oral traditions,” Lopez says, “and included protective language that said, ‘If a water right is sold, or a piece of land is sold, that acequia gets the first right to purchase those rights.’”
Even having water rights doesn’t guarantee water access: Over the past few decades, the federal government has settled longstanding water rights cases with sovereign tribes, in many cases backdating tribal water rights to the dates of their reservations’ establishment. Although the tribes now have the nation’s oldest established water rights, they haven’t always, and they still come up against structural and financial barriers that prevent them from developing water and getting the real benefit of those rights.
Of the more than 570 federally recognized tribes in the United States, as of 2019 only 36 tribal water rights settlements had been federally approved. The Ute Mountain Ute and Southern Ute tribes in Colorado are among that small number, but despite their long journey, the tribes still don’t have access to all the water they own.
Tribal water rights have their roots in the Winters Doctrine, a 1908 case which established tribal water rights based on the date the federal government created their reservations—thereby moving tribal water rights to “first in line” among users.
In the 1970s and ‘80s, the U.S. government filed and worked through claims on behalf of the Ute Mountain Ute and Southern Ute tribes to surface waters in southwestern Colorado. In the 1980s, Congress approved a settlement between the tribes, the federal government and other parties; in 2000, the Colorado Ute Indian Water Rights Settlement Act was amended, entitling tribes to water from the U.S. Bureau of Reclamation’s proposed Animas-La Plata Project (A-LP), as well as from the Dolores Project’s McPhee Reservoir. Construction on A-LP began in 2001, and the project’s key feature, Lake Nighthorse—named for Sen. Ben Nighthorse Campbell—began filling in 2009.
Prior to the Dolores Project, many people living in Towaoc, on the Ute Mountain Ute Reservation, did not have running water and instead trucked it in to fill water tanks at their homes, says Ernest House, Jr., senior policy director with the Keystone Policy Center and former director of the Colorado Commission of Indian Affairs. His late father, Ernest House, Sr., was pivotal in that fight for water. “I was fortunate, my father was able to see A-LP completed. I think he probably, in his own right, couldn’t believe that it would have been done and could be done,” he says. But even today, some Southern Ute and Ute Mountain Ute communities still lack access to water, and aging infrastructure from the 1980s needs updating and repairs.
“Our tribes as sovereign nations cannot maintain or move forward without access to water,” House says. “We have to remind people that we have tribal nations in Colorado, and that we have other tribes that continue to call Colorado home, that were removed from the state, either by treaty or forced removal,” he says, adding that acknowledging the difficult past must be a part of conversations about the future.
Those conversations include state, regional, and federal-level water planning. The Colorado tribes are engaged in Colorado’s basin roundtable process, with both tribes occupying seats on the Southwest Basin Roundtable, says Greg Johnson, who heads the Colorado Water Conservation Board’s Water Supply Planning Section (and serves on the Water Education Colorado Board of Trustees). Through the roundtables, local stakeholders conduct basin-wide water planning that is eventually integrated into the statewide Colorado Water Plan. However, until recently, tribal involvement in regional Colorado River negotiations between the seven U.S. basin states and federal government has been nonexistent. Change is brewing—a 2018 federal Tribal Water Study highlighted how tribal water resources could impact Colorado River operations, while a new Water and Tribes Initiative is working to build tribal capacity and participation in water negotiations throughout the basin.
“The Utes have been in what we call Colorado for the last 10,000 to 12,000 years,” House says. “It would be a shame if we were left out of the conversations [about water].”
The External Costs of Industry
Government is vital to addressing the legacy of environmental injustice, and preventing future problems, but finding solutions also demands reconsidering how business is done.
Consider Colorado’s relationship with the extraction industry, visible in the 19th-century mines that pock mountain towns, uranium-rich communities like Nulca, and the escalation of oil and gas drilling today. Colorado is an “epicenter” of extraction and environmental justice issues, says Stephanie Malin, associate professor at Colorado State University and a sociologist who studies energy development and extraction.
Lack of local control in the past has been especially frustrating, Malin says, since private corporations earn profits off the resources but then outsource the impacts. In the end, extractive industries have a track record of leaving communities and governments to bear the costs of cleanup.
Take Gold King Mine as one high-profile example. In August 2015, wastewater from an abandoned mine in San Juan County contaminated the Animas River between Silverton and Durango. Contractors hired by EPA accidentally caused 3 million gallons of mine waste, laden with heavy metals, to wash into the Animas. New Mexico, Utah, and the Navajo Nation all filed to sue EPA, with farmers reporting that they couldn’t water their crops and others saying they had to truck in alternative water supplies. But those responsible for the contamination were long-gone. Like tens of thousands of other mines in the region, the Gold King Mine was abandoned in the early 20th century.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—more commonly called Superfund—which Congress passed in 1980, was originally set up as a “polluter tax” on oil, gas and chemical companies at risk of contaminating communities or the environment. But Congress never reauthorized the tax, which expired in 1995. By the early 21st century, the fund was bankrupt. Today, these cleanups are funded entirely by taxpayers.
“It’s part of a bigger pattern of privatizing profit and nationalizing, or socializing, risk,” Malin says. “Then, communities and the environment are left holding the ‘external’ costs.” Those external costs, she says, are nearly unquantifiable: “The intergenerational impacts in particular are so hard to gauge, in terms of what the communities are absorbing.”
While these problems can seem intractable, there are solutions, Malin says. For example, the bond amounts companies are required to pay up-front should better reflect the actual cost of cleanup, she says. Last year, Colorado lawmakers made strides to unburden taxpayers in just that way, with an update to Colorado’s old mining law.
The new Colorado law, HB19-1113, makes sure water quality impacts from mining are accounted for and long-term impacts are avoided. The law says that the industry can no longer self bond—a practice tha