This week Water Policy Report (subs. required) reported on EPA’s exercise of residual designation authority (RDA) over stormwater discharges and a pilot stormwater-reduction trading program in Massachusetts. Together, these actions have the potential to significantly reduce stormwater discharges into local waterways. If successful, this pilot trading program could be a template for similar trading programs in the Chesapeake Bay watershed and across the country.
Stormwater discharges occur when impervious surfaces such as roads, rooftops, and parking lots channel high volumes of contaminated water into a nearby waterbody. In the absence of impervious surfaces, the water would be absorbed or stored in the ground and then slowly released back into the water cycle. EPA implemented two phases of stormwater regulation in 1990 and again in 1999. Today, three categories of stormwater are regulated: certain municipal separate storm sewer systems (MS4s) that serve populations of 100,000 or more or that serve populations of less than 100,000 in certain urbanized areas; construction activities that disturb one or more acres; and certain industrial activities.
EPA may also regulate stormwater by exercising its “residual designation authority” (RDA), found in CWA sections 402(p)(2)(E) and (p)(6). These sections allow EPA or the state authority to require NPDES permits for specific stormwater discharges known to present the most significant threats to surface water but that do not fall the two categories described above. A discharge that is entirely composed of stormwater may require a NPDES permit if the EPA Administrator or state agency determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. Section 402(p)(6) also directs the Administrator to designate stormwater discharges to be regulated to protect water quality. A NPDES permit writer may consider factors such as the location of the discharge, the volume of the discharge, the quantity and nature of pollutants, and other relevant factors.
Full textCross-posted from Legal Planet.
As Cara and Dan have explained, ocean acidification is the other big climate change problem. As atmospheric CO2 levels rise, more CO2 dissolves in the oceans. That in turn increases ocean acidity, which changes the ecology of the seas, most obviously by reducing the ability of corals and a variety of other marine organisms to build their “skeletons” and protective shells from calcium carbonate.
Ocean acidification is a pollution problem, just as acid rain and climate change are. So just as the Clean Air Act ought to have something to say about atmospheric dumping of greenhouse gases, the Clean Water Act should have something to say about the accumulation of CO2 in the oceans. (Note: I’m not saying these first-generation pollution control laws are the best way to deal with climate change, but they do provide some tools that are worth trying in the absence of GHG-specific legislation.)
The Center for Biological Diversity has been pushing the argument that the CWA covers ocean acidification, and EPA under Lisa Jackson is beginning to agree. Over a year ago, Sean noted that EPA had responded to a Center petition by agreeing to evaluate the possible application of the CWA, and last April EPA issued a notice that it would review its ocean acidity water quality criteria. As I pointed out at the time, that put EPA on board for eventual regulation of ocean acidity, but on the very slow train.
Full textCross-posted from Legal Planet.
When government decides that private economic activity needs to be restricted in order to preserve some part of nature, there are two basic ways to get that result — by demanding cooperation through regulation or by buying it through economic incentives or outright purchase. The second approach is often politically easier, but environmentalists have long been skeptical of relying too heavily on it. Two major concerns have repeatedly been expressed. First, paying for conservation suffers from obvious fiscal constraints, especially in times of tight government budgets. Second, it may contribute to what economists call “moral hazard” — the tendency of those who anticipate a government bail-out to ignore the extent to which their activity may pose personal or societal risks.
A lengthy story about a conservation deal in the Everglades in Monday's New York Times highlights a third concern: the private side might clean the government’s clock in negotiations. The article focuses on Florida’s plan to buy out US Sugar. The company is both a major landholder in the area between Lake Okechobee and Everglades National Park and, through runoff from its agricultural fields, a major contributor to the phosphorus pollution that is causing the decline of the native sawgrass ecosystem. In 2008, Florida announced a plan to buy out US Sugar over a six-year period. The company was to end its operations and convey 187,000 acres to the state in return for about $1.7 billion. The cost was to be paid by the South Florida Water Management District, which said publicly that it would not have to raise its taxes. Environmentalists, according to a Reuters story at the time, “raved.”
Full textYesterday, the White House released a plan to restore Mississippi and Louisiana wetlands and barrier islands, which have been disappearing at a rapid clip for decades and continue to do so. Hurricane Katrina brought to the fore what many residents of these states already knew: federal, state, and local authorities were neither coordinated nor prepared to protect the Gulf Coast, its ecosystems, and its people from Mother Nature’s worst. (See CPR's report on Katrina).
The White House roadmap is designed to bring some much-needed order and leadership to Gulf Coast restoration efforts. It’s a strong sign from the Obama Administration that it is serious about protecting the Gulf Coast.
The roadmap also strives to put ecosystem restoration and sustainability “on a more equal footing with other priorities such as manmade navigation and structural approaches to flood protection and storm risk reduction.” It rightly notes that these priorities make up complex pieces of a larger whole: wetlands protect inland ecosystems and communities from dangerous storm surges, for example; bayous, bays, and estuaries produce much of the fish and wildlife that coastal fishermen and communities depend upon for their livelihoods. The elevation of these “ecosystem services” to having “value” on par with priorities such as river navigation is a heartening sign.
Full textOrdinarily, if an organization with the word “recycling” in its name said unkind things about the Center for Progressive Reform, I’d worry. But the other week, we got dinged by a newly launched outfit called “Citizens for Recycling First,” and I’m thinking it’s a badge of honor.
Before proceeding, let’s dwell for a moment on the mental images the group’s name conjures up. I’m thinking about plastic bins with recycling logos on their sides, filled by conscientious Americans with soup cans, beer bottles, and aluminum foil.
Perhaps you pull up a different mental image. But whatever it is, I’m pretty sure it’s not a big hole in the ground with toxic coal ash in it. That little bit of misdirection is probably just what the marketing types of the coal and coal ash industry had in mind when this latest front group went on line. And no doubt when John Ward, past President of the American Coal Council, became its chairman, it wasn’t to build a grassroots movement aimed at getting more Americans to turn over their yogurt containers to see what the recycling number is.
Full textWater pollution / water law issues on the front pages of the Times and the Post on the same day?! Yep.
NYTimes: Rulings Restrict Clean Water Act, Hampering E.P.A.
WashPost: Rising with a bullet among top pollutants: Number Two
Full textA few thousand fishermen and women are making port in Washington, D.C. today to rally against the best hope for the future of fishing. They don’t see it that way, of course, but a look at the evidence leaves no other conclusion.
The simple truth is that American waters have been overfished for years. When boats take out more fish than nature can replace, fish populations shrink. If fishing efforts doesn’t decrease to match the smaller fish population, the resulting overfishing creates a vicious cycle—each year’s catch takes a bigger and bigger percentage of the remaining fish, until finally there are so few fish that the entire fishery, and the jobs depending upon fishing, disappear. Unfortunately, we have reached that point of collapse with many of our northeast fisheries, like winter flounder, which is below 10 percent of the targeted level; and American Shad, which is at an all-time low.
The crisis has been a long time coming. Like many other countries, the United States spent decades letting the immediate needs of fishing communities guide its fishing plans—and the result has been disastrous. In late 2006, Congress wisely decided that business as usual would drive overfished stocks to extinction. In its reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act, Congress recognized a critical failing in past efforts to stem overfishing: overly optimistic estimates of the “maximum sustainable yield” that could sustainably be fished. They gave the fishing industry too much credit for staying within the limits, and the fish themselves too little time to repopulate.
Full textCross-posted from Legal Planet.
The past couple of weeks have been crazier than usual on the Bay-Delta. The pumps were first ramped up and then ramped down. Senator Dianne Feinstein (D-CA) pandered to the irrigation crowd (or at least a part of it) by proposing to ease endangered species protections in the Delta. And the fall-run chinook salmon population, which supports the commercial fishery, crashed.
First, the pumps. Recall that last fall Judge Oliver Wanger ruled that the Bureau of Reclamation violated NEPA by implementing the 2008 smelt biological opinion without first undertaking environmental analysis. I think that’s incorrect as a matter of law; it can’t be a violation of NEPA to reduce pumping for conservation purposes, but not a violation to gradually ramp up pumping over the decades that the CVP and SWP have been operating. NEPA analysis should happen, but it should happen when the Bureau is developing its proposed Operating Criteria and Procedures (or when it is considering renewing irrigation contracts), not at the back end of the ESA analysis.
Be that as it may, Judge Wanger is sticking to his NEPA guns. He has now ruled that water users are likely to succeed on their parallel argument that implementing the salmon BiOp also violated NEPA. On February 5, Judge Wanger granted a TRO prohibiting implementation for two weeks of a provision of the salmon BiOp that limits the extent to which pumping can reverse river flows. The TRO rested on Judge Wanger’s belief that limiting pumping would cause real harm to the water users, but lifting the limit would not cause significant harm to the protected fish. (Curious reasoning, since he also concluded that plaintiffs were not likely to succeed on their substantive ESA challenge to the BiOp. If a valid BiOp says that pumping limits are needed to protect the fish, how can it be that a federal judge knows that those pumping limits are not in fact needed to protect the fish? It makes my brain hurt, but I digress.)
Full textJust to give you an idea of the scope of the situation in Tennessee: More than 3 million cubic yards of coal ash were released into the waterways in the Kingston coal ash disaster in late 2008. This week comes news from cleanup officials that the removal of that waste is 70 percent complete. The EPA's PowerPoint shows that removal of the coal ash from the river is slightly ahead of forecast (slide 16).
So, just a half million cubic yards plus to go. Oh, but don't forget, says the Tennessean:
TVA plans to remove the more than 2 million cubic yards that lie just west of the river in a second phase that could take three years. The total cost of the cleanup effort could reach $1.2 billion.
Officials managing the cleanup can be forgiven for their enthusiasm at the progress to date, even though the road ahead spans several years. What’s not quite so forgivable is that the Tennessee Valley Authority’s Kingston plant put such inadequate protections against a spill in place to begin with.
Full textIn a welcome move, EPA recently took polluters to task for their attempt to downplay the risks to human health and the environment from the Portland Harbor superfund site along the Willamette River in Portland, Oregon (h/t Oregonian for noting the EPA action). As part of the cleanup effort for the site, the polluters, known as the Lower Willamette Group (LWG), had agreed to conduct an assessment of the risks posed by the contaminants there. This risk assessment will serve as the basis for determining vital questions about cleanup at the site, including the degree to which the contaminants will be remediated and the extent to which health risks will actually be reduced. Because the members of the LWG will likely have to foot much of the cleanup bill, it's unsurprising that they sought to lowball the risks to humans and the environment: the lower the risks at a site, the less expansive – and less expensive – a cleanup is likely to be. Any such tendencies are meant to be kept in check by the EPA however, which oversees LWG’s risk assessment and, in the end, sets the standards for the Portland Harbor site. To its credit, EPA’s preliminary comments raise several pointed objections to the LWG risk assessment, ultimately concluding that it improperly “minimize[s] the risk to human health and the environment.”
Consider one example of LWG’s efforts to belittle the risks from the site. Portland Harbor is contaminated with polychlorinated biphenyls (PCBs), dioxins, mercury, polycyclic aromatic hydrocarbons (PAHs), and other toxic pollutants known to cause cancer and harm human health. Many of these contaminants bioaccumulate in fish tissue; humans are exposed when we eat these fish. In fact, for many of these pollutants, fish consumption is the primary route of human exposure. As a consequence, a crucial variable for assessing the risks posed by the site is the answer to the question: how much fish do people consume?
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