Friday 19 April 2019

On Earth Day, We Salute Our Waterkeepers

The first Earth Day 49 years ago sparked grassroots advocacy around the nation that led to the passage of the Clean Water Act, among many other landmark environmental protection laws. Along side this historic movement for better environmental protections, the Waterkeeper movement was born. This year, Waterkeeper Alliance celebrates its 20th anniversary. Waterkeepers Chesapeake and all of our member Waterkeeper programs are proud members of this global alliance. We fight alongside more than 300 amazing Waterkeeper groups around the world who are doing their part to take on the global water crisis.

We would like to share with you a few of our “water wins” here in the Chesapeake and Coastal Bay regions. Our local Waterkeepers are your on-the-water (and sometimes in the air) advocates for your local waterways. Working locally and building teams to tackle complex threats to our waterways takes a great deal of collaboration, coordination and time. We count on you – so please contact your local Waterkeeper today to find out how you can get involved and support them!

Lower Susquehanna Riverkeeper filed a lawsuit that resulted in the local power plant installing cooling technology for its wastewater discharges that has reduced the severity of fish kills. 
- Ted Evgeniadis, Lower Susquehanna Riverkeeper

Shenandoah Riverkeeper has cut the number of cattle directly accessing the river, and defecating into it, by half, drastically reducing nutrient pollution.
- Mark Frondorf, Shenandoah Riverkeeper
 
Waterkeepers Chesapeake played a significant role in permanently banning fracking in Maryland. 
- Katlyn Schmitt, Waterkeepers Chesapeake
 
Middle Susquehanna Riverkeeper helped win fines, allocated for watershed improvements, from a gasoline pipeline company after a rupture. 
- Carol Parenzan, Middle Susquehanna Riverkeeper
 
Gunpowder Riverkeeper in Maryland used legal action to halt a natural gas pipeline that would have endangered drinking water for up to 1.5 million people.
-Theaux Le Gardeur, Gunpowder Riverkeeper
 
Potomac Riverkeeper convinced Alexandria, VA to go beyond minimum federal requirements and approve a plan to eliminate 70 million gallons of sewage and stormwater discharges to the Potomac River each year.
- Dean Naujoks, Potomac Riverkeeper
 
Patuxent Riverkeeper won a civil right agreement that requires Maryland agencies to widen the scope of its environmental fairness analysis when reviewing applications to build new fossil fuels plants and broadens the role that overburdened communities will have in the power plant application process.  
- Fred Tutman, Patuxent Riverkeeper
 
After years of pressure from Potomac Riverkeeper and James Riverkeeper, Virginia will require that all 28 million tons of legacy coal ash in the Commonwealth be moved from leaking coal ash ponds and recycled or safely landfilled. 
- Dean Naujoks, Potomac Riverkeeper, & Jamie Brunkow, James Riverkeeper
 
Choptank Riverkeeper worked to pass a law in Maryland to permanently protect and restore the 5 large-scale oyster restoration sanctuaries including Harris Creek, Tred Avon River and the Little Choptank River which are all part of the Choptank River complex. 
- Matt Pluta, Choptank Riverkeeper
 
South Riverkeeper worked to pass a law in Maryland requiring local governments to report their erosion and sediment control efforts statewide, bringing transparency to government, and ultimately, to receiving waters.
- Jesse Iliff, South Riverkeeper
 
Baltimore Harbor Waterkeeper won a lawsuit against EPA for failure to evaluate whether stormwater from commercial, industrial, and institutional facilities is contributing to water quality degradation in the Back River.
- Angela Haren, Baltimore Harbor Waterkeeper
 
After successfully helping pass a styrofoam ban in Baltimore, Baltimore Harbor Waterkeeper helped pass a statewide ban in Maryland, the first state to ban foam!
- Angela Haren, Baltimore Harbor Waterkeeper
 
Assateague Coastkeeper won a challenge against Maryland to reverse a permit approval for a proposed concentrated animal feeding operation (CAFO), the first time such a reversal of a flawed permit has been made.
- Kathy Phillips, Assateague Coastkeeper
 
Waterkeepers Chesapeake led the effort to pass phosphorus management regulations in Maryland, protecting waterways from pollution resulting from excess manure being spread on fields.
- Betsy Nicholas, Waterkeepers Chesapeake
 

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