Tag Archives: EPA

A Plan for Our Drinking Water

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Photo Credit: USDA

In 2012, city officials in Flint, Michigan, began to investigate the possibility of saving money by switching water providers. Projecting a savings of $200 million over the course of 25 years, they decided to build their own pipeline to the Karegnondi Water Authority (KWA) instead of continuing to receive water from Detroit Water and Sewerage Department (DWSD). Officials then searched for an additional water source to bridge the gap between the loss of water being provided by DWSD and the completion of their connection to KWA.

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Flint River

They settled on using the Flint River.

On April 25, 2014, Flint—a city where 40 percent of its people live in poverty—began drawing water from the Flint River for public use. Officials did not implement corrosion control treatment at the Flint Water Treatment Plant—a standard practice that prevents supply pipes from leaching lead. Shortly after switching the water supply, residents complained about water quality, but it was not until early 2015 that city tests verified what people had suspected—levels of lead in Flint’s drinking water exceeded U.S. Environmental Protection Agency (EPA) standards. An independent test done by Virginia Tech found lead levels at 13,000 parts per billion (ppb). The EPA limit for led in drinking water is 15 ppb and water is considered hazardous waste at 5,000 ppb.

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Photo Credit: Ildar Sagdejev

The decisions officials made in Flint brought to light the environmental struggles faced by poor, rural and underserved communities across the nation, forever changing the perception of public drinking water, and prompting people to ask one very pertinent question that they had not previously considered:

How do I know if my drinking water is safe?

550px-environmental_protection_agency_logoOn November 30, 2016, EPA published the results of its six month review of the nation’s drinking water strategy in their report, Drinking Water Action Plan. This plan includes six priority areas, along with recommended actions to improve water quality and health in the United States.

The six priority areas are:

  • Drinking water infrastructure financing and management in low-income, small and environmental justice communities
  • Oversight for the Safe Drinking Water Act
  • Strengthening the protection of water sources
  • Addressing unregulated contaminants
  • Improving overall transparency, public information and risk communication
  • Reducing lead risks
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Photo Credit Steve Johnson

Circle of Blue, an online news source affiliated with the Pacific Institute and founded by journalists and scientists who conduct data analysis and document emerging and recognized crises, states that approximately 27 million Americans are served by public water utilities that are in violation of federal drinking water standards. Millions more draw their drinking water from unregulated, contaminated, household wells. And while 99 percent of Americans have access to an improved water source, underserved communities sometimes receive water from sources that present a health hazard.

These priority areas and actions for improvement would have an impact on Colorado’s rural water supplies, which have seen their own fair share of struggles when it comes to ensuring that the water is safe and free from contaminants. Headwaters magazine article, “The Rural Water Conundrum,” speaks to that exact issue. According to the article, 98 percent of Colorado’s water systems serve communities smaller than 10,000 people. These small communities could benefit from the improved support outlined in EPA’s new action plan.

Implementing change will not only require billions of dollars to be spent in order to update inefficient and outdated infrastructure, but will also call for the cooperation of government officials, water utility services and the public. Currently, the future of the Drinking Water Action Plan is in question, and only as time passes will we know if EPA’s suggestions will take shape in the form of solid action.

Until then, the public will continue to ask: Is my drinking water safe?

hw_fall_2016_final_coverKnowing what is in your water and how policy makers can impact public health is the first step being able to make decisions that will have a positive impact on your personal well-being. Read more about water and its connection to public health in the latest issue of Headwaters magazine, Renewing Trust in the Safety of Public Water.

Not a Headwaters subscriber? Visit yourwatercolorado.org for the digital version. Headwaters is the flagship publication of the Colorado Foundation for Water Education and covers current events, trends and opportunities in Colorado water.

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Solutions for Drinking Water Contamination Issues in Colorado Springs Area

The Safe Drinking Water Act (SDWA) has ensured the safety of public drinking water supplies throughout the nation. As part of the federal program, the U.S. Environmental Protection Agency (EPA) sets standards for drinking water quality, and periodically requires the testing of public drinking water systems that serve more than 10,000 people to examine potential emerging contaminants to determine the need for future regulation.

In October 2015, water samples taken from public water sources in Security, Widefield and Fountain, Colorado, showed elevated quantities of Perfluorinated Compounds (PFCs). PFCs are manmade compounds that can be found in non-stick cookware, stain-resistant sofas and carpets, food packaging, as well as Aqueous Film-Forming Foam, used to fight petroleum fires. The military airfields at Peterson Air Force Base, in Colorado Springs, are the suspected source of PFC contamination; however, further water and soil testing is necessary to determine the definitive origin.

PFCs are not currently regulated by the SDWA; however, according to the El Paso County Health Department, prolonged exposure to PFCs is linked to potential health hazards, such as developmental damage to fetuses during pregnancy, low birth weight, accelerated puberty, kidney and testicular cancer, and liver tissue damage. It is suggested that pregnant women, nursing mothers and young children may be at higher risk due to exposure to PFCs.

An EPA press release from February 22 indicated that, according to the October samples, some of the public water sources in Security, Fountain, and Widefield, had concentrations of PFCs above the health advisory level set by the EPA in 2009. It recommended that residents consider testing their well water or installing a reverse osmosis under-the-sink treatment option.

After the initial testing by the EPA, Security began to manage PFC levels in area wells by blending the water to lower levels, as well as using low-level wells, according to Roy Heald, general manager of Security Water and Sanitation Districts. They suspected that PFC levels in their well water would be on the high side when the new levels were announced just months later; however, it was difficult to prepare for the unknown standards that the EPA would set.

“We did not know how stringent the new EPA concentration allowances would be,” Heald says. “We could only estimate based on rumors.”

Local officials had no direct contact with the EPA until 24 hours before the agency issued a new health advisory announcement on May 19. They were caught off-guard when the EPA announced that acceptable levels of PFCs needed to be below 70 parts per trillion (ppt); the prior level was 0.4 parts per billion (ppb) for PFOA (Perfluorooctanoic Acid) and 0.02 ppb for PFOS (Perfluorooctane Sulfonate), or a combined total of 400 ppt. Areas where both PFOA and PFOS are found are meant to adhere to the new standard of 70 ppt. Concentrations of PFCs in all 32 of Security’s wells were considerably higher than the EPA’s newest health advisory level, with one well reaching 1,370 ppt, nearly 20 times higher than the new limit.

People were concerned for their safety, health and the future of their water. You can learn more about this situation via these Denver Post articles: “Water contamination issues grip Colorado Springs-area residents” and “Drinking water in three Colorado cities contaminated with toxic chemicals above EPA limits.”

Needless to say, communities affected by high levels of PFCs in their water supply have been through a lot in the last 10 months. Local water and sanitation districts scrambled to find short-term solutions that would allow citizens to have safe water as quickly as possible. They have also been working to develop long-term solutions that will ensure the future welfare of well water in the Security, Widefield and Fountain areas, all while simultaneously continuing to run regular business operations. As of September 9, all wells in Security have been shut down. None of the wells are being used, and none of them will be used until treatment is implemented. The three zones that make up the total community are now receiving 100 percent surface water, which is being transported from Pueblo Reservoir through the Southern Delivery System (SDS), and there are no PFCs in the water, according to Heald.

The Widefield and Fountain areas have also transitioned from using well water to water piped in from north of Pueblo. Widefield set up free bottled water distribution at the onset of the situation and installed water dispensers in schools. All eight of Fountain’s municipal wells have PFC levels above the new EPA limit. In an attempt to lower these elevated levels, an engineering firm has been hired by the city.

Heald is quick to note that this is a short-term solution, at a higher cost; the diverted water costs three times more than local well water. However, money spent on the urgent situation has not affected customer rates. Yet. Currently, Security residents pay about $25 a month for their water service, but Heald insists that even if customers see an increase in their bills, the Security Water and Sanitation District will continue to have competitive rates for the area.

“The $3 million dollars that we have spent was, thankfully, from our reserves,” says Heald. “This district has been well-managed for 60 years and we had the reserves that enabled us to take emergency action; however, it was earmarked for other projects that, now, cannot be completed—like improving infrastructure. Continuing to spend money in this way is simply unsustainable.”

This short-term fix will carry the community through the winter. Additional infrastructure, in the form of a $825 million treatment plant and pipeline that will transport water 45 miles from Pueblo Reservoir in Colorado Springs, is being built to meet summer 2017 water demands. Beyond next summer, long-term treatment solutions for the wells will be employed in order to return to the use of groundwater wells.

“Rates are low in this area because the infrastructure is bought and paid for. The water rights are also bought and paid for,” Heald explains. “Long-term solutions involve treatment on our wells so that we can get back to using groundwater.”

A self-described eternal optimist, Heald praises the “phenomenal cooperative effort” of the surrounding communities, the Colorado Department of Public Health and Environment and local health departments for their quick action and the success of applied solutions. “There are people who deserve more credit than they will ever get for getting us through this. We’ve done things that I didn’t know were possible.”

Learn more from Roy Heald about how Security plans to provide water that is PFC free:  Ron Heald Speaks on Security Water Supply.

And watch for related coverage in the upcoming issue of Headwaters magazine, focused on protecting public health through drinking water supplies, which will hit mailboxes the second week of December. Not a Headwaters subscriber? Sign up here, or visit yourwatercolorado.org in December for the digital version. Headwaters is the flagship publication of the Colorado Foundation for Water Education and covers current events, trends and opportunities in Colorado water.

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Viewpoint: Leveraging EPA’s Orange River to Abate the Threat of Abandoned Mines

The Animas flows orange through Durango on Aug. 7, 2015, two days after the Gold King Mine spill. (Photo by Esmé Cadiente | www.terraprojectdiaries.com)

The Animas flows orange through Durango on Aug. 7, 2015, two days after the Gold King Mine spill. (Photo by Esmé Cadiente | http://www.terraprojectdiaries.com)

By Mark Gibson

If you recall publicity on the Eagle Mine near Beaver Creek or the Yak Tunnel in Leadville, you could predict that the U.S. Environmental Protection Agency had a manifest destiny to pollute a hundred miles of streams with toxic sludge—from Cement Creek to Lake Powell.

Before John Elway ever won a Super Bowl, the Denver Post spotlighted the Eagle Mine, reporting how regulators’ plans to plug old mine shafts ran afoul—percolating toxic pools overflowed in 1989, causing Beaver Creek’s snowmaking machines to spray “orange snow.” Four years earlier, miners on a maintenance mission during their annual “Yak tunnel walk”–by accident–dislodged muck in workings from the 1800s, releasing a plume in the Arkansas River sufficient to move EPA to create a 20-square-mile Superfund project surrounding Leadville that continues today.

Charles Curtis, renowned energy leader and former head of the U.S. Nuclear Regulatory Commission, is purported to often lament “everything leaks.” While Curtis’ context is the nuclear cycle, his leak axiom squares with the state of historic mines.

Depending on who counts, between 160,000 and 480,000 abandoned mines reside in the Rocky Mountains. They pollute 40 percent of the West’s watersheds. Their price tag: $35 billion. Mines sprouted when settlers dug on their way to California’s Gold Rush in 1848. After several mining booms, in 1942 Roosevelt granted $130 per ton to lead producers—twice Depression-era levels—so our allies could hurl bullets at Nazis.

The old miners dug vast reaches, exposing to weather what had been encapsulated by Mother Nature. When water mixes with exposed rock (particularly pyrite) its sulfides oxidize, reducing pH, increasing metals concentrations, and further increasing acidity, brewing acid mine drainage and lots of liabilities.

Consider the Curtis canon, the deluge of abandoned mines, rudimentary chemistry and the realities of environmental enforcement, and you enter a Yossarian modality.

Most mine Superfund sites identified in the 1980s are still not finished, while they subsidize white-collar welfare (science studies and lawyers) rather than on-the-ground fixes. Litigation risks stymie voluntary Good Samaritan efforts—whether by industry or environmentalist.

The rules encourage gold-plated, expensive remediation. Fundamentally, if water doesn’t touch mineralized rock the water isn’t contaminated. Yet this simple science is ignored and grossly engineered schemes like portal plugs result—that require reinforcement with more plugs, that create larger pollution pools, that migrate across labyrinths of old tunnels, that create more seeps, which at some point demand fancy water treatment systems, that fuel consultants and lawyers, who scare industry, who pay to mitigate more liabilities, increasing demand for more over-engineered solutions—a spiral of silliness.

Settling ponds used to precipitate iron oxide and other suspended materials at the Red and Bonita mine drainage near Gold King mine, shown Aug. 14, 2015. (Photo by Eric Vance/EPA)

Settling ponds used to precipitate iron oxide and other suspended materials at the Red and Bonita mine drainage near Gold King mine, shown Aug. 14, 2015. (Photo by Eric Vance/EPA)

While EPA’s approach may help water quality, over climatic cycles we see ticking time bombs

emerge like Gold King. (Again, from Curtis: everything leaks.)

This is why source-control methods were perfected at the Idarado mine remediation in the 1980s. At Idarado, industry and the local community and environmental groups all embraced what at the time was termed a “risky, unproven” strategy: reduce metals loadings 50 percent by minimizing contamination at the top of the watershed, thereby supporting aquatic life in the lower drainages. Within the past 20 years, zinc loadings reached the reduction goal on the Telluride side. But in the Ouray/Red Mountains adjacent to the Gold King district (a maze of abandonment), loads fell a disappointing 25 percent. Today, a hike from Telluride up to the Tom Boy ghost town validates all manner of source-control techniques… rock plumbing that prevents most—but not all—water infiltration. Since “dam and treat” projects (promoted by the regulators of the day) were blocked, a Gold King disaster was averted. You don’t hear much today about the Idarado success, and that’s the point: we should demand mine cleanups that last and that we don’t have to revisit.

Idarado’s lessons aren’t lost, but they’ve been downright difficult to replicate. The Animas River Stakeholders Group, the Uncompahgre Watershed Partnership, Outward Bound and others perform yeoman’s work fixing the high country. The volunteer armies are hamstrung by lack of funding and broken regulators who won’t fend off the excesses of the Clean Water Act and the Superfund. Before political leaders begin to balk at the tar-baby dynamics in this controversy, EPA’s Gold King disaster should be leveraged as a wakeup call.

A bold state move will dull legal thorns like “federal preemption” and “joint and several liability;” a few precedents exist for locally driven remedies to overcome these hurdles without new law. A (small) state-sanctioned, locally controlled panel with procurement, financing, regulatory and property-leasing powers is compulsory. The panel can establish authority shielding it and its contractors from pesky environmental liabilities, and effect sound solutions without Superfund designation. After proving the model, the panel’s jurisdiction should expand.

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

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

Suggestions for the panel’s Top 10 priority actions:

▪Cease all ill-conceived EPA actions.

▪Consider reopening all Clean Water Act and CERCLA (Superfund) Agreements impacting the region, as necessary. (Admit the Sunnyside situation is a mistake.)

▪Draft and administer an immediate-term, low-cost, high-impact remediation plan. (Quit studying and start engineering and building. Dispense with remedies that address 10-6 risk and focus on what gets us to 70 percent improvement.)

▪Remove or remediate dams and plugs that foster water build-up and contamination.

▪Undertake water source-control techniques; minimize top-down infiltration.

▪Avoid and minimize the need for active treatment technologies.

▪Measure and publicize objectives and results. (Place real-time monitors near hazards and inside baseline indicator zones, and dispense with high-end laboratory techniques.)

▪ Fund remediation with off-budget, innovative finance methods, perhaps third-party minerals royalties, user fees, or even property leases.

▪Fund third-party remediation initiatives, like the Animas River Stakeholder Group, the Uncompahgre Watershed Partnership and their volunteers, including Outward Bound.

▪ Invoke innovative legal shields. (Don’t expect relief from Congress or the EPA.)

After 250 years of mining, it’s time to end the regulatory rigor mortis across the Rockies and get on to rational cleanups no longer obsessed with mitigating every single, theoretical, or Populaire à l’époque legal risk.

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Mark Gibson consults for the environmental and water industries, focusing on government/regulatory affairs and business development. He was previously vice president at the Danaher/Hach Environmental Water Quality Group and Hays, Hays & Wilson. Gibson’s teams have played roles at more than two dozen Superfund sites and as many mine cleanups. He holds an M.S. in Mineral Economics from Colorado School of Mines and a B.S. in Engineering from the University of Maryland.

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The Orange Animas

Last week, an estimated three million gallons of mine sludge poured from the dormant Gold King Mine, north of Silverton, Colorado, into Cement Creek, sending an orange plume of acid mine drainage down Cement Creek into the Animas River, through Durango, into New Mexico, where it met the San Juan River and flowed into Utah—the plume is still en route to the Colorado River. Officials estimate about three million gallons of wastewater were released after a U.S. Environmental Protection Agency crew accidentally breached a dam while investigating how to stop existing leakage from the mine on August 5. From the EPA:

The intent of the investigation was to assess the on-going water releases from the mine and to treat mine water and to assess the feasibility of further mine remediation. The plan was to excavate the loose material that had collapsed into the cave entry back to the timbering. During the excavation, the loose material gave way, opening the adit (mine tunnel) and spilling the water stored behind the collapsed material into Cement Creek, a tributary of the Animas River.

Abandoned mine drainage is nothing new for old mining communities, or the Animas.  It occurs when surface water comes into contact with rocks and minerals that contain sulfur—in this case, pyrite—and oxygen, resulting in sulfuric acid and dissolved iron. This often happens in old abandoned mines—prior to the 1977 Surface Mining Control and Reclamation Act,  mine reclamation was unregulated. From a KUNC story:

For years, miners were not required to do anything with this water. In fact, most of them would dump it right into a creek, or put it in ponds with their tailings, where it became even more acidic.

“In the old days there was very little control and not much attention paid to control [of acidic water from mines],” said Cohen [Ronald Cohen, an environmental engineer at the Colorado School of Mines].

Fast forward to 2015, and the state of Colorado is dotted with abandoned mines — 22,000, according to the state’s Division of Mining, Reclamation and Safety — filling up with water that runs into its streams. And the mines outside of Silverton? They’re some of the worst.

The resulting sulfuric acid can release naturally occurring heavy metals contained in rocks such as manganese, lead, cadmium, copper and zinc, leaching those metals into the water and resulting in a toxic fluid. That contaminated water then flows out of the mine adits, but many have been blocked off or reclaimed (and some, though blocked, are leaking, as the Gold King Mine was).

What did this release of three million gallons of acid mine drainage do to the river? Find the EPA’s initial report of water samples collected after the breach here.  It shows elevated levels of iron, manganese, zinc and copper below the mine breach. By the time the plume reached Durango, the levels of those metals were lower, but still elevated. The Mountain Studies Institute has also been collecting samples, which are still being processed. From a High Country News article: 

A test by Colorado Parks and Wildlife, in which trout in cages were placed in the river prior to the plume’s arrival, has so far shown no acute effects: Only one of 108 fish had died during the first 24 hours in contaminated water. Meanwhile, the Mountain Studies Institute has been monitoring macro-invertebrates, and their results have been similarly positive.

The flowing mine water is being treated in a series of settling ponds near the mine portal by raising the pH through the addition of lime and sodium hydroxide and adding flocculant to increase sedimentation, this is effective, according to the EPA. Long-term impacts on the river, economy, agriculture and other affected sectors are still unknown.

In the Animas River’s drainage, the Animas River Stakeholders Group, which formed in 1994,  just after the last mine in the area had closed, works to improve water quality in the basin. The group, a collaboration between concerned citizens and representatives from industry and agencies, formed to fend off  Superfund designation. Although Superfund comes with the cash and assistance to remediate  such environmental problems, locals feared that such designation would destroy tourism. The group began with a lot of work to do, from a recent blog post on the Animas River Stakeholders Group:

In its first years of operation, the group sampled some 200 abandoned mine sites, then prioritized 33 in need of the most work. The group directly sponsored close to 20 mine remediation projects in the upper Animas River watershed and was indirectly involved in 40 more, considerably improving the water quality in several tributaries to the Animas River, including Mineral and Cement creeks. They also developed recommendations for a number of site-specific water quality standards that were ultimately adopted by the Colorado Water Quality Control Commission.

Because of the liability stemming from the Clean Water Act that is associated with directly treating polluted mine drainage, most of the Animas Stakeholders’ remediation projects have focused on prevention through isolation of reactive mineralized material from water, either by removing tailings and waste rock from a drainage (and in a few cases reprocessing it at a local mill), capping it with an impermeable material, or diverting water that previously fed into old mine workings and tailings piles to minimize metal-loading.

An unplugged tunnel at the Gold King mine in the upper Cement Creek drainage

A turning point in the Animas River Stakeholder Group’s mission came after the last mining company to operate in Silverton, Sunnyside Gold Corp., built three massive bulkheads inside the vast underground workings of the Sunnyside Mine in the upper Cement Creek drainage starting in 1996 as part of an agreement with the State of Colorado that released the mine company from environmental liability.

The bulkheads were intended to act as corks, simply preventing water from draining out of the mine. The first one worked well, but when two more were added downstream in the tunnel six years later, the bulkheads collectively ended up functioning more as a bathtub plug, causing the water table inside the mountain to rise and eventually gush out of other mine adits—horizontal passages leading into a mine for the purposes of access or drainage—higher in the upper Cement Creek drainage.

As of March, mine drainage water poured out of a group of adits on the same slope—the American Tunnel, the Red and Bonita, the Mogul…and the Gold King—in an amount equal to the contributions of the 33 most-polluting mines the Animas Stakeholders group identified during its initial study 15 years ago. From that same blog post:

Collectively, these leaky adits have created one of the largest untreated mine drainages in Colorado, a festering sore oozing a toxic cocktail of heavy metals including zinc, cadmium, copper, manganese, iron, aluminum and lead.

But of course, as of last week, contaminated waters poured from the Gold King. As reported by KUNC, when the spill occurred, the Gold King was not the object of the EPA’s cleanup:

The agency had planned to plug a mine just below it, the Red and Bonita Mine, with the goal of reducing acid runoff from that mine.

Since mines are interconnected, however, and a plug in one can lead to more water flowing out the other, the agency planned to “remove the blockage and reconstruct the portal at the Gold King Mine in order to best observe possible changes in discharge caused by the installation of Red and Bonita Mine bulkhead.”

That project began July 2015. The Gold King Mine released its toxic load at 10:30 a.m. August 4, 2015.

 

Today, emotions of anger, fear and frustration and running strong, as reported by the New York Times. The U.S. EPA has published information about its claims process for compensating citizens who have suffered injury or property damage caused by the U.S. government’s actions.

While others have refocused that frustration, from an editorial in Parting the Waters: 

All development of the natural environment carries risk to our water resources. I suppose it’s human nature to ignore that fact and instead focus on the bright orange river staring you in the face.

 

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EPA’s new WOTUS rule expected soon, amid pushback

Photo with permission by John B. Kalla

High-country wetland with Colorado aspens. Photo with permission by John B. Kalla via Flickr.

By Mark Scharfenaker

Wherefloweth the Clean Water Act Waters of the United States (WOTUS) rule jointly proposed last spring by the U.S. Environmental Protection Agency and the Army Corps of Engineers? The rule clarifies which waters are covered under the Clean Water Act, raising concerns over a potentially expanded federal jurisdiction over previously uncovered waterways, wetlands, and groundwater resources.

The Corps and the EPA have asserted the rules will save time and money in making jurisdictional determinations and provide better protection of the public’s water resources as the Clean Water Act intended, without affecting any new types of waters.

But after more than one million public comments, a questionable “campaign” by the EPA to promote the rule, a GOP-majority Congress aiming to make the agency start over, and the two-term Obama Administration winding down, this important rulemaking very well might emerge this week in final form virtually begging for legal challenges.

Also this week, a Senate hearing on bipartisan legislation to force a makeover saw leading WOTUS-rule critic Sen. James Inhofe, the Oklahoma Republican who chairs the Senate Environment and Public Works Committee, announce that he has asked the Government Accountability Office to assess whether EPA efforts to promote the rule have violated laws banning federal agencies from “grassroots” lobbying.

In doing so, Inhofe cited a May 18 New York Times article addressing that very subject.

“EPA claims that they conducted ‘unprecedented outreach’ after they issued their proposed ‘Waters of the United States’ rule,” said Inhofe. “What they actually conducted was an unprecedented grassroots lobbying campaign which may violate federal law.”

Inhofe said S. 1140, the Federal Water Quality Protection Act introduced in late April sets forth some principles and guidelines for EPA and the Corps to follow when they rewrite the rule. “Importantly, the bill tells EPA and the Corps that they need to focus on water bodies. Not puddles, ditches, groundwater, and overland sheet flow,” he said. “They also need to focus on the ability of water pollution to reach navigable water. This means they cannot use the movement of birds, animals and insects, or nature’s water cycle to create federal control over land and water.”

Also at the hearing, Mark T. Pifher, manager of the Southern Delivery System for Colorado Springs Utilities, testified on behalf of the National Water Resources Association in favor of S. 1140.

While acknowledging that EPA will likely make substantive changes to the proposed bill in response to public comments, Pifher said a major factor in the controversy “was the failure of the agencies to timely initiate consultation with state and local governments, conservation and conservancy districts, ditch companies, special districts, agricultural interests, public and private utilities and others prior to their issuance of the draft rule.”

S. 1140, he said, would “assist in rectifying this failure by requiring expanded outreach efforts. After all, it is state and local entities who have on-the-ground experience in this arena, and who bear the burden of making this regulatory process work on a daily basis.”

Pifher cited specific concerns of western states that the proposed rule “failed to recognize the geologic, hydrologic, and climatic differences that exist across this country, with particular reference to the arid West, a region of the country where ephemeral and intermittent water bodies, effluent dependent and effluent dominated streams, dry arroyos, isolated ponds, artificial conveyance systems, including ditches, and geographically large and diverse basins are so common.”

The Senate is not alone in advancing legislation to block the WOTUS rule.

The U.S. House of Representatives on May 12 approved bipartisan legislation that also requires EPA to withdraw the proposed WOTUS rule and start over. The vote was 261 to 155.

Echoing Inhofe, House Transportation and Infrastructure Committee chairman Bill Shuster, R-Pa., said his Regulatory Integrity Protection Act of 2015 (H.R. 1732) would stop an “onerous rule” that “will impact the nation’s economy, threaten jobs, lead to costly litigation, and restrict the rights of landowners, states and local governments to make decisions about their lands.”

Similar concerns have been expressed by the Western Governors Association and the Western States Water Council.

In its comment on the WOTUS rule, the WGA expressed concern that “this rulemaking was developed without sufficient consultation with the states and that the rulemaking could impinge upon state authority in water management. As co-regulators of water resources, states should be fully consulted and engaged in any process that may affect the management of their waters.”

The Western States Water Council spelled out specifics for a revised WOTUS rule, including that it specifically exclude waters generally considered to be outside the scope of the Clean Water Act. The list includes groundwater, farm and stock ponds, irrigation ditches, man-made dugouts in upland areas, temporary ponds excavated to combat wildfires, and prairie potholes and playa lakes.

EPA chief Gina McCarthy, meanwhile, has said 90 percent of the public comments on the proposed rule were favorable. Still, in an April 2015 blog post she emphasized that the agencies are responding to concerns and outlined a series of changes to the initially proposed rule that will be reflected in the final version, which is expected to be issued any day. Find more coverage in this May 22 New York Times article.

Mark Sharfenaker has been a writer and editor for the American Water Works Association since 1986 and the AWWA website editor since 2008. His previous contributions to CFWE’s Your Water Colorado Blog include “The Value of Water,” “Money for Water,” and “As Big as it Gets: Clean Water Act Rulemaking.” He moved to Colorado in 1982 after a 10-year stint in Montana, where he earned an undergraduate degree in Journalism at the University of Montana and learned the joys of fly fishing and the wonders of western waters.

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Western Governors Address Two Key Federal Water Developments

By Mark Scharfenaker

Two significant recent water developments on the federal front have triggered responses by the Western Governors Association.

1. EPA Water Transfer Rule

The WGA, joined by the Western States Water Council, has urged the US Environmental Protection Agency to appeal a recent federal court ruling that remanded the agency’s Water Transfers Rule for reconsideration.

EPA adopted the rule on the heels of several court rulings addressing whether the Clean Water Act requires National Pollutant Discharge Elimination System permits for moving water from one body of water to another without any intervening industrial, agricultural or commercial use of that transferred water. Some have argued that such permits are required for transfers that introduce pollutants into the receiving body, but EPA’s rule says no.

Such transfers are the routine stuff of many western waters projects, and none have ever been subject to NPDES permitting.

But In a 116-page ruling, a judge of the US District Court for the District of New York, vacated the rule “to the extent it is inconsistent with” the CWA and remanded it to EPA “to the extent EPA did not provide a reasoned explanation for its interpretation.”

In a May 12 letter to EPA Administrator Gina McCarthy, WGA Executive Director Jim Ogsbury and WSWC Executive Director Tony Willardson that the CWA supports the EPA rule by expressly stating that the law will not supersede or abrogate the rights of states to allocate water quantities within their jurisdiction, and that water rights established by state law shall be protected.

“Western states rely on thousands of intrastate and regional transfers to move billions of gallons of water to satisfy domestic, agricultural and industrial needs,” said Ogsbury. “Requiring NPDES permits for these transfers will be prohibitively expensive and could curtail certain transfers, with little if any water quality benefits.”

Read the WGA press release and more about the Water Transfer Rule and the court ruling (PDF).

2. Water Resources Reform and Development Act

WGA has commended Congress for its near-unanimous votes in both the House and Senate to approve reauthorizing and streamlining the nation’s major water infrastructure program. The subject of months of negotiation by a House-Senate conference committee, the measure primarily covers US Army Corps of Engineers projects but also includes language amending the Clean Water State Revolving Fund and creating a new 5-year pilot program titled the Water Infrastructure Financing and Innovation Act.

WGA said the bill “delivers significant ‘wins’ for Western Governors,” including continuing to “recognize and protect states’ interests and rights in water management, and to block the U.S. Army Corps of Engineers from charging for surplus water.”

The bill, which awaits a signature by President Obama to become law, also provides for improved protection for communities from extreme weather and natural disasters as well as flood protection and safety improvements. It also provides for ecosystem protection and regional water resources initiatives.

Read the WGA press release and more about the WRRDA.

Mark Sharfenaker has been a writer and editor for the American Water Works Association since 1986 and the AWWA website editor since 2008, his contributions to the Your Water Colorado Blog include The Value of Water. He moved to Colorado in 1982 after a 10-year stint in Montana, where he earned an undergraduate degree in Journalism at the University of Montana and learned the joys of fly fishing and the wonders of western waters.

Read other posts by Mark here:
As Big As It Gets: Clean Water Act Rulemaking

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As Big As It Gets: Clean Water Act Rulemaking

By Mark Scharfenaker

Everyone seriously interested in water quality throughout the United States has 90 days to let EPA, the Army Corps of Engineers and federal lawmakers know what they think about the agency’s newly proposed rule intended to clarify just where in a watershed the protections of the Clean Water Act cease to apply.

This long-awaited rulemaking aims to define CWA jurisdiction over streams and wetlands distant from “navigable” waters of the United States…the lines of which were muddied by recent Supreme Court rulings rooted in a sense that perhaps EPA and the Corps had strayed too far in requiring CWA dredge-and-fill permits for such “waters” as intermittent streams and isolated potholes.

This rule is as big as it gets in respect to protecting waterways from nonfarm pollutant discharges, and the proposal has not calmed the conflict between those who want the jurisdictional line closer to navigable waters and those who want it to reach deep into and through every watershed.

EPA chief Gina McCarthy asserts that it is “simply not the case” that the rule would expand the reach of the CWA. “Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act. In the end — the increased clarity will save us time, keep money in our pockets, cut red tape, give certainty to business, and help fulfill the Clean Water Act’s original promise: to make America’s waters fishable and swimmable for all,” she wrote in an Op-Ed piece.

“America’s waters and wetlands are valuable resources that must be protected today and for future generations,” said Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy. “Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”

At the state level, both the Western Governors Association and the Western States Water Council have expressed concerns about the rule.

Western Governors assert that “as co-regulators of water resources, states should be fully consulted and engaged in any process that may affect the management of their waters.” WGA adds that “the conversations to date have not been sufficiently detailed to constitute substantive consultation” and “Western Governors strongly urge both EPA and the Corps to engage states as authentic partners in the management of Western waters.”

Top-shelf environmental organizations are backing the rule, while early Republican voices are sounding alarms.

Peter Lehner, executive director of the Natural Resources Defense Council, made the following statement: “This is good news for boaters, anglers, swimmers and families who rely on clean drinking water. EPA took an important step to finally rescue these waters from legal limbo. Even though these are common-sense protections, the polluters are sure to attack them. People who care about clean water need to make their voices heard in the comment period.”

Trout Unlimited and Ducks Unlimited also voiced support for the rule. “Today’s proposal speaks to the heart of the Clean Water Act—making rivers more fishable and swimmable,” said Chris Wood, president and CEO of Trout Unlimited. “The waters affected by today’s proposal provide vital spawning and rearing habitat for trout and salmon. Simply stated, the proposal will make fishing better, and anglers should support it. Restoring protections to these waters ensures healthy habitat for fish and a bright future for anglers.”

Sen. James Inhofe, R-Okla., however, minced no words in blasting the rulemaking: “Today’s proposed rule by the EPA and Corps of Engineers is a massive expansion of power over the nation’s water resources. The Clean Water Act is written to include only navigable waters, but with this new rule, the agencies are giving themselves the authority to regulate everything from the nation’s largest rivers to small irrigation ditches found on family farms in Oklahoma. This rule will only make the agencies’ authority more confusing and difficult to navigate, and we should not underestimate the devastating impact this rule could have if it becomes final. It shows that President Obama is no friend of private property rights or Oklahoma’s economy.”

In the House, Rep. Bud Shuster, R-Pa., remarked: “The last thing people need is for the EPA to come knocking on their doors telling them their ponds are too dirty or their puddles are too muddy. It violates our personal freedoms, and puts an unnecessary burden on both families and businesses alike. This is a massive power grab by the government, and would give the EPA regulatory power over nearly every body of water in America. We should not allow that to happen.”

Bottom line is that the proposed rule is now ready for prime time, and EPA and the Corps have promised a nationwide effort to collect input from all sides, which hopefully will finally produce a rule that finds the sweet spot between the extremes without triggering a new round of legal challenges that will keep landowners, politicians, environmentalists and regulatory authorities…not to mention the well-being of ducks, geese, fish and our riparian habitats…in a continued state of uncertainty.

As McCarthy said so succinctly, “we need everyone to be part of the conversation” to get this rule right.

Mark Sharfenaker has been a writer and editor for the American Water Works Association since 1986 and the AWWA website editor since 2008, his contributions to the Your Water Colorado Blog include The Value of Water. He moved to Colorado in 1982 after a 10-year stint in Montana, where he earned an undergraduate degree in Journalism at the University of Montana and learned the joys of fly fishing and the wonders of western waters.

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