Friday 19 April 2019
EPA Funding, Rollbacks & Federal Legislation

EPA Funding, Rollbacks & Federal Legislation (19)

Executive Order is a clear move to benefit major oil and gas companies and expedite controversial infrastructure against the wishes of states.

President Trump released an Executive Order last week that seeks to restrict every state’s authority under the Clean Water Act. This authority allows state regulators to assess whether a major project, like a pipeline or dam, would have a negative impact on the state’s waterways - or more specifically, its water quality standards. This Order is even more alarming given a string of Executive Orders released from President Trump, such as the one giving himself the sole authority to approve major pipelines crossing international borders -- which was previously the responsibility of the U.S. Department of the State. 

Under the Clean Water Act (Sec. 401), a federal agency cannot issue a federal permit or license for a project that runs through state waters without first obtaining the state’s approval of the project. In 2017, Washington State used this authority to stop the construction of a coal terminal that would have been detrimental to the state’s waterways. Likewise, New York has used this authority to stop natural gas pipelines from coming through the state - citing concerns for the state’s streams and wetlands. Other states, like Maryland, have used this authority to “place conditions” - or certain water quality protections - on a major project.

State authority to review, place conditions on, or deny major projects coming through their borders is explicit under the Clean Water Act and has been strongly backed by the court system. This includes two major Supreme Court cases that resound the importance of state authority over these types of projects. 

The Executive Order is a clear move to benefit major oil and gas companies, like Energy Transfer, and expedite controversial infrastructure against the wishes of states - like President Trump’s proposed border wall. 

If implemented, the Executive Order seeks to make it harder for states to conduct an adequate review of major projects that cross the state’s waterways. In fact, five of the six policies established under the Executive Order have nothing to do with clean waterand everything to do with encouraging speedy actions, having a “single point of accountability” (i.e. FERC) and promoting energy companies. Only one of the six policies mentions “effective stewardship of America’s natural resources.”

The Executive Order prioritizes economic considerations over existing clean water protections. The whole purpose of the Clean Water Act was to improve the quality of the country’s waterways -- which were heavily over-polluted at the time of its passage. It’s the primary vehicle that ensures the health and safety of our waterways, yet this Order is seeking to heavily restrict the only section that gives states robust authority to protect their own waterways. More specifically, it orders the U.S. Environmental Protection Agency (EPA) to issue a Guidance that will “clarify” any existing practices related to state authority under the Clean Water Act (i.e. the ability to conduct a thorough review of major projects) in light of the new policies under the Executive Order that shift the focus away from clean water. 

Not only is this a major threat to the successes we’ve had under the Clean Water Act thus far, it’s a slap in the face to state sovereignty. States have the greatest access to information regarding their own waterways and the best ability to determine whether a major project – such as the relicensing of the Conowingo Dam  may have an impact on water quality. Despite this, the Executive Order would hinder every state’s ability to determine which projects can be allowed near or through its own waterways. 

We will be working closely with our region’s states to assess and challenge the Guidance EPA’s plans to issue this summer. We anticipate that this Executive Order will be challenged in court as it is a clear attempt to strip states’ explicit authority granted under the Clean Water Act.

Waterkeepers Chesapeake comments on rule support a broad, science-based definition of the waters of the U.S. and urges EPA to strengthen the rule to ensure full protection of the nation’s waters.  

The Environmental Protection Agency’s (EPA) proposed a new rule that slashes Clean Water Act protections for millions of people by redefining “waters of the U.S.” In this blatant giveaway to polluting industries, in the Chesapeake region, streams and tributaries in the upper reaches of the Susquehanna, Potomac, Shenandoah, James and many other rivers, as well as a vast number of wetlands, would not receive protections under the Trump administration’s scheme to gut the Clean Water Act.

On April 15, Waterkeepers Chesapeake submitted comments opposing the EPA’s proposed re-definition of the “waters of the U.S.”, through the elimination of the “significant nexus” test and the abandonment of the overwhelming scientific findings that was the basis for the current rule. Waterkeepers Chesapeake also argued against the EPA’s continued efforts to categorically exclude a large number of waters because such exclusions are not grounded in science and law. In particular, EPA’s approach of excluding groundwater is not warranted by science as demonstrated by the many comments by individual members of EPA’s Science Advisory Board (SAB). Finally, Waterkeepers Chesapeake objected to EPA continuation of the so-called “waste treatment” exclusion which allows mining and coal interests to use our precious water resources as dumping grounds for their wastes.

The EPA’s data shows that at least 18% of streams and 51% of wetlands nationwide would no longer be protected under the Clean Water Act under this rule. In the Chesapeake Bay Watershed alone, at least 34,000 acres of non-tidal wetlands and headwater streams would lose protections.

As EPA research and reporting repeatedly shows year after year, we still have a long way to go in applying the Clean Water Act and meeting its directives. We still discharge toxics into our waters. Agricultural discharges that are almost wholly unregulated account for nearly half of the pollution entering waterways and a significant portion of the waters that are currently failing to meet basic standards of cleanliness.

EPA summary of states’ reported water quality data shows that states have a poor record of assessment. But of the waters assessed, 53% of assessed rivers and streams, 68% of assessed lakes, and 66% of assessed bays/estuaries are failing to meet one or more water quality standards. This data shows that we have not eliminated nor controlled discharges of pollutants into our nation’s water.

Wetlands are critical ecosystems to wildlife, and are essential as nature’s water-cleaning and flood control mechanisms. In just the last decade, agencies reported that we had lost over 50% of our wetlands nationwide. In parts of the Midwest and coastal areas, the figure is as high as 90% or more with attendant disastrous results for clean water.

The Clean Water Act’s comprehensive protections are so critical to the well-being of the nation and its citizens, and still sorely needed. Waterkeepers Chesapeake supports EPA’s science-based efforts, within the law, to ensure that all waters that are or can be affected by pollution be protected consistent with the intent and purpose of Congress in passing the Clean Water Act. We urge EPA to strengthen the rule as outlined in our comments (and summarized below) and to abandon the ill-conceived and unsupported categorical exclusions portion of the rule.

Comments Summary:

“Waters of the U.S.” - Waterkeepers Chesapeake believes that the proposed definition of “waters of the United States,” constitutes an abandonment of the scientific and technical data that the EPA collected in determining the existing definition and results in an arbitrary and capricious decision.

Tributaries - Waterkeepers Chesapeake opposes the decision to only include tributaries with perennial or intermittent streams in the definition of waters of the United States. There is no scientific or legal reason to exclude tributaries of any water that is identified as a water of the United States through this rule regardless of the frequency of the tributary’s flow. Tributaries affect downstream waters, and if the downstream water is a water of the United States, then its tributaries must be protected under the Clean Water Act. The exclusion of any tributary that does not provide at least a perennial or intermittent flow to traditional navigable water is another arbitrary and capricious decision that ignores volumes of scientific data.

Adjacent wetlands - Waterkeepers Chesapeake opposes the definition of adjacent wetlands to mean “wetlands that abut or have a direct hydrologic surface connection to other ‘waters of the United States’ in a typical year”. SAB previously concluded that a more scientifically accurate definition of adjacency would include the outer extent of the flood plain and all riparian areas not merely  defined by the physical touching of wetlands to waters of the United States.

Categorical exclusions - Waterkeepers Chesapeake objects to EPA’s proposal to exclude whole categories of water from receiving Clean Water Act protections. Categorical exclusions are not supported by Supreme Court case law nor the language of the Clean Water Act. While some members of the Supreme Court expressed concern over ensuring that certain waters, specifically wetlands, had a connection to waters of the U.S., at no time has the Court addressed wholesale exclusion of certain types of waters. While EPA may desire categorically excluding some waters for the sake of convenience, such a result is not supported by case law and is contrary to the intent and purpose of the Clean Water Act.

  • The groundwater exclusions are not fully-supported from a scientific perspective and may lead to regulatory confusion. EPA should revise the proposed rule to provide that groundwater is protected as a water of the U.S. where it is hydrologically connected to surface water in a way that is not insignificant. 
  • Waterkeepers Chesapeake strongly objects to the “waste treatment exclusion” for waters of the U.S. that should receive full Clean Water Act protections. This exclusion allows mining, coal or utility industries to dump pollutants into the stream, lake, or wetland. Waterkeepers Chesapeake presses EPA to eliminate this exclusion not only because it promotes continued permitting of polluting and damaging practice, but also because EPA never allowed for public notice and comment on this section of the rule.

Comments

Watekeepers Chesapeake

Waterkeeper Alliance

Fact Sheets on Impact of Rule on 12 Watersheds

(Washington, D.C.)– President Trump’s executive order, issued today, changes the existing Clean Water Act’s 401 Water Quality Certification process that gives states the power to protect their waterways from federally licensed projects that could affect water quality.  Betsy Nicholas, executive director of Waterkeepers Chesapeake, released the following statement on how the executive order would affect federal permits and the current process to relicense the Conowingo Dam: “This executive order effectively hamstrings states from being able to protect their waterways and promote clean water. If implemented, the order would allow the federal government to effectively rubber stamp projects that would harm water quality, including pipelines and dam recertifications, and hamper states’ ability to install measures to reduce pollution. Some states, including Maryland, in the case of the relicensing of Conowingo Dam, have been using their authority under Section 401 of the Clean Water Act to protect their communities and waterways from harmful projects approved by the federal government. This executive order would tip the scales in favor of corporations applying for these permits and strip states of their ability to hold them accountable for the pollution they cause. For Conowingo Dam, Exelon would be able to operate the dam for the next 50 years without needing to take any measures to protect the Susquehanna River and Chesapeake Bay from pollution. This is unacceptable, and we look forward to seeing this executive order overturned in court.”  Media Contact: Betsy Nicholas, betsy(at)waterkeeperschesapeake.org, Waterkeepers Chesapeake, 202-423-0504 ### Waterkeepers Chesapeake is a coalition of eighteen independent Waterkeeper programs working…

The EPA has proposed a new rule to slash Clean Water Act protections for millions of people. In a blatant giveaway to the fossil fuels industry, industrial agriculture, big developers, and other major polluters, the EPA proposes to remove up to 60% of stream miles and up to 80% of wetland acres from federal protections under the Clean Water Act that safeguard drinking water for millions of people.

Clean water is essential for the health and sustainability of our families, communities and environment. Lest we forget -- we all live downstream and pollution knows no boundaries. We have a responsibility, as a nation, to control pollution at its source and protect the drinking water sources of all residents – regardless of where they live. In the Chesapeake region, streams and tributaries in the upper reaches of the Susquehanna, Potomac, Shenandoah, James and many other rivers, as well as a huge number of wetlands, would not receive protections under the Trump administration’s scheme to repeal the Clean Water Rule.

The Clean Water Act gave us the legal framework to clean the nation’s waterways after decades of neglect had turned some of our rivers into flowing dumps of flammable trash, chemicals, and debris by the 1960s. It gives any citizen the right to sue polluters to protect our waterways.

We oppose this repeal of the 2015 Clean Water Rule and the gutting of protections that have prevented reckless pollution of the nation's waterways for decades. Access to safe drinking water is a prerequisite for healthy, thriving communities, where everyone can participate, prosper and reach their full potential. This proposed rule would put water at risk for too many communities by removing protections for streams and wetlands across the nation and in our region.

What you can do:

1. TAKE ACTION NOW: Use the form below or click here to submit comments directly to the EPA.

2. Submit your own comments through the Federal eRulemaking Portal: http://www.regulations.gov/All submissions must include the Docket ID No. EPA-HQ-OW-2018-0149. Click here for tips on commenting on this rule.

All comments must be received by April 15, 2019

Thank you for taking action. This is the most consequential attack on clean water since the passage of the Clean Water Act in 1972. Congress understood then that to protect the waters of this country, we need to protect all of them.

 

 

Proposed rule frees industry to dump toxic waste into streams, allows the destruction of millions of acres of wetlands, and threatens drinking water.

On December 11, 2018, the Environmental Protection Agency (EPA) unveiled its proposal to replace the 2015 Clean Water Rule with a very narrow, unscientific definition of “waters of the United States” (WOTUS). This proposed rule contradicts the law and science that is the foundation for the Clean Water Act successes of the past 40 years, will remove Clean Water Act protections for millions of wetland acres and stream miles, and will cripple federal and state clean water initiatives for the foreseeable future. EPA’s proposal ignores the robust record in support of the Clean Water Rule, and intentionally limits the opportunity for affected communities to express their views about this proposal. This proposal would remove up to 60% of stream miles and up to 80% of wetland acres from federal protections under the Clean Water Act. 

“Clean water is essential for the health and sustainability of our families, communities and environment. Lest we forget -- we all live downstream. We have a responsibility, as a nation, to control pollution at its source and protect the drinking water sources of all residents – regardless of where they live,” said Betsy Nicholas, Executive Director of Waterkeepers Chesapeake. “In the Chesapeake region, streams and tributaries in the upper reaches of the Susquehanna, Potomac, Shenandoah, James and many other rivers, as well as a huge number of wetlands, would not receive protections under the Trump administration’s heartless scheme to repeal the Clean Water Rule.”

The Clean Water Rule was part of a larger effort to clarify the definition of “waters of the United States” under the Clean Water Act. How WOTUS is defined is important because any waterway that meets the WOTUS definition receives Clean Water Act (CWA) protections. Under the Clean Water Rule’s updated definition of WOTUS, CWA protections extended to the drinking water sources of 117 million people across the United States – that’s one in three Americans.

EPA’s proposal would eliminate federal protections for areas that contain water only after rainfall and would no longer regulate groundwater, stormwater, wastewater and land already converted for crops. It would regulate wetlands or waterways only if they are clearly adjacent to navigable waterways above ground or through “direct subsurface connection.”

The proposal would drop federal oversight of gravel and sand pits, which are commonly used in hydraulic fracturing, or fracking, and old quarries that fill up with water. It also would prevent federal officials from ordering changes in the handling of fertilizers that might spill into small waterways. The changes could benefit coal mining companies that lop off the tops of mountains and fill in valleys with waste, often creating ponds.

In rushing to publish the proposed rule, the EPA and the Army Corps of Engineers ignored science, violated the Administrative Procedure Act by halting enforcement of the Clean Water Rule, and failed to comply with either the Endangered Species Act or National Environmental Policy Act. Both laws require the federal government to “look before you leap” and ensure that the environmental consequences of a particular action will not cause unintended environmental damage.

We oppose this heartless scheme to repeal the 2015 Clean Water Rule and to gut the protections that have prevented reckless pollution of the nation's waterways for decades. Access to safe drinking water is a prerequisite for healthy, thriving communities, where everyone can participate, prosper and reach their full potential. This proposed rule would put water at risk for too many communities by removing protections for streams and wetlands across the nation and our region.

What you can do: Sign this petition today and stay tuned for more actions you can take to stop this attack on your clean water!

Regulator has missed Safe Drinking Water Act deadlines for toxic and carcinogenic contaminants WASHINGTON, D.C. - Waterkeeper Alliance, Waterkeepers Chesapeake, and California Coastkeeper Alliance today notified the U.S. Environmental Protection Agency (EPA) of their intent to sue the agency under the Safe Drinking Water Act because EPA has missed Safe Drinking Water Act deadlines for reviewing and regulating drinking water contaminants, including tetrachloroethylene, trichloroethylene, hexavalent chromium, and others. The environmental groups are represented in this matter by Reed W. Super, Esq. of Super Law Group, LLC. EPA’s mandatory obligations under the Safe Drinking Water Act include identifying unregulated contaminants for monitoring and/or regulation, regulating those contaminants, and reviewing and revising existing drinking water regulations, all according to a specific timetable mandated by Congress. If EPA does not perform its mandatory obligations, we plan to file suit in early 2019. The mandatory duties the groups intend to enforce in the upcoming lawsuit involve particular contaminants: Chromium (including hexavalent chromium, the chemical best known from the movie “Erin Brockovich”) was regulated in 1991, with an enforceable limit of 100 parts per billion, based on the assumption that it was noncarcinogenic through oral exposure even though it is known to cause cancer when inhaled. Since then, the National Toxicology Program found “clear evidence of carcinogenic activity” when hexavalent chromium is ingested in drinking water. California set a goal of 0.2 parts per billion and an enforceable limit of 10 parts per billion. EPA has been studying it for many years but has not…

Last week, the scandal-ridden EPA Administrator Scott Pruitt resigned. We, along with other environmental groups, rejoiced in his resignation – but unfortunately our work to stop rollbacks of environmental protections and to fight the take over of the EPA by the fossil fuels industry is not over. The likely new head of the EPA, Andrew Wheeler, is expected to be just as bad as Pruitt, and maybe worse given his expertise in navigating the federal legislative and regulatory spheres.

Clean water is essential for the health and sustainability of our families, communities and environment. Lest we forget -- we all live downstream. We have a responsibility, as a nation, to control pollution at its source and protect the drinking water sources of all residents – regardless of where they live. Here are two examples of direct assaults on our clean water and drinking water resources and how we are joining fights against these outrageous threats to your health and your communities.

Clean Water Rule

In 2015, the EPA and the Army Corps of Engineers passed the Clean Water Rule, resulting in better protections for a variety of streams, ponds, and wetlands that were vulnerable to pollution. Waterkeepers Chesapeake submitted comments that were supportive of the rule’s passage. The Rule was based on sound science and received broad public support.

Despite this  -- last year, President Trump urged the EPA to repeal the 2015 Clean Water Rule. This rule would rollback the new definition, reverting us back to the less protective definitions of Waters of the United States (WOTUS). Waterkeepers Chesapeake joined over one hundred other Waterkeeper organizations across the United States in signing onto Waterkeeper Alliance’s comments on these detrimental rollbacks. In the Chesapeake region, streams and tributaries in the upper reaches of the Susquehanna, Potomac, Shenandoah, James and many other rivers would not receive protections under the Clean Water Act if the Clean Water Rule is repealed.

The proposed bad “replacement rule” to severely constrict Clean Water Act jurisdiction (superseding the 2015 Clean Water Rule) is at the Office of Management and Budget for a last review before publication, most likely sometime in August. That publication will initiate a public comment period. Follow us on social media and sign up for our email to stay up to date and to take action against this assault on our clean water resources. Also visit www.protectsouthernwater.org to get the latest updates and to take action.

Loophole to Allow Polluted Groundwater

The EPA and courts have historically interpreted the Clean Water Act does regulate pollutants that travel a short distance through groundwater, soils, or the air before reaching surface waters. Incredibly, EPA is now considering a change to this long-standing interpretation. The EPA wants to allow a company to release pollutants from a pipe a few feet short of a waterway. These pollutants would travel a short distance underground before entering the surface water and would not be regulated under the Clean Water Act. In May, Waterkeepers Chesapeake joined over 130 other Waterkeeper organizations, Waterkeeper Alliance and national groups in submitting comments on the baseless regulatory change. There is no legitimate basis for the EPA to call into question the interpretation of the Clean Water Act that a pollutant discharge which travels from a point source to surface water across hydrological connections may be subject to NPDES permitting requirements. The EPA’s Notice published in the Federal Register provides no meaningful support for a contrary conclusion.

In response to the resignation of Scott Pruitt as EPA Administrator, Waterkeepers Chesapeake released this statement:

“Scott Pruitt was unfit to lead the EPA. He demonstrated this with his disdain for protecting the environment and public health, his systematic attack on the EPA itself and any science-based regulations, and his unapologetic support of polluting industries. We are happy to see him go. We thank our nonprofit partners like the Environmental Integrity Project and the free press for their relentless pursuit of the truth about Pruitt’s unethical management of the EPA and his long list of scandals.

We will continue to oppose any cabinet or agency head, including Pruitt’s replacement, who attacks our environmental protections, poses a danger to public health, and ignores basic ethical standards in running a government agency.”

In 2015, Waterkeepers Chesapeake joined more than a half-million comments from people supporting the safeguards that U.S. Environmental Protection Agency (EPA) is now seeking to remove in its proposed rule. The 2015 coal ash regulations were imposed after lengthy negotiations with utilities, other industries and environmentalists. Relaxing those common sense, science-based rules now – even as utilities are in the process of reporting the extent of coal-ash contamination and devising plans to address it – would mean the lessons learned from the coal ash accidents in Tennessee and North Carolina are being ignored. The proposed rule (‘remand rule’) would once again put our water and public health at risk – with more than 1.5 million children living near coal ash storage sites and seventy percent of all coal ash impoundments disproportionately impacting low-income communities – this is a risk that the EPA should be unwilling to take. Background Coal-fired power plants in the United States burn more than 800 million tons of coal every year, producing more than 110 million tons of solid waste in the form of fly ash, bottom ash, scrubber sludge and boiler slag—commonly known as coal ash. Hazardous chemicals present in coal are concentrated in the ash when coal is burned. Consequently, coal ash contains a toxic brew of carcinogens, neurotoxins, and poisons—including arsenic, boron, cadmium, hexavalent chromium, lead, lithium, mercury, molybdenum, selenium, thallium, and radioactive substances. These toxics raise the risk for cancer, heart disease, and stroke, and can inflict permanent brain damage on children.…

Proposed 90% Cut Ignores Overwhelming Bipartisan Support of Program

(Monday, Febraury 12, 2018) President Trump’s proposed budget for Fiscal Year 2019 essentially eliminates federal funding for the cleanup of the Chesapeake Bay, the largest program to restore a body of water in U.S. history, just as the effort reaches its halfway point. The budget recommends that the U.S. Environmental Protection Agency’s Chesapeake Bay Program budget be slashed from its current allocation of $73 million to just $7.3 million – an exact 90 percent cut to current funding. These funds would only be designated for monitoring and would effectively shutdown all other aspects of the restoration effort. 

“By slashing the Chesapeake Bay Program funding, the president is giving polluters a green light to destroy the United States’ largest estuary and its already-imperiled tributaries,” said Betsy Nicholas, Executive Director of Waterkeepers Chesaeake. “The multi-state restoration work of the Bay and our rivers and streams is just beginning to pay dividends in the form of cleaner water and restored habitat. We can’t reverse course.”

A multi-state, federally supported program is the only way to restore the Chesapeake Bay, because the tributaries to the Bay cross state boundaries and provide clean drinking water to millions. In addition, the Bay is the economic engine for the region, providing an estimated one trillion-dollar value in fisheries, shipping, tourism, and other industries.

The president’s proposed budget is a direct attack on our rights to clean water and air. In addition to gutting the Bay Program, it calls for a 34 percent cut to the Environmental Protection Agency, cutting funding for the agency to $5.4 billion — its lowest funding level since 1990. In addition, the president’s infrastructure plan proposes to replace our nation's public highways and bridges with toll roads, cut existing highway funds, sell off our public lands, and gut basic environmental protections that have long protected our water, air, land, and wildlife.

Last year, the president recommended completely eliminating funding for the Chesapeake Bay Program in the Fiscal Year 2018 budget.This was met with resistance from not only the environmental community, but members of Congress.This funding results in millions of dollars in support for projects that are improving communities and protecting local waterways around the watershed. Both the House and the Senate ignored the president’s recommendation, and increased the funding in their respective appropriations bills. We call on our Congressional leaders to do the same this year.

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