Iowa

Christian Science Monitor: Battle Over the Clean Water Rule; What’s at Stake?

Christian Science Monitor

Battle over the Clean Water Rule: What’s at stake?

By Amanda Paulson

Just who gets to regulate America’s many seasonal streams and wetlands?

That’s a question that has long been contentious.

At the end of June, Environmental Protection Agency Administrator Scott Pruitt formally proposed revoking the Obama-era Clean Water Rule, also known as the “Waters of the US” rule, or WOTUS.

Mr. Pruitt was acting on an executive order signed by President Trump back in February. And depending on whom you talk to, the move to repeal the rule is either an environmental disaster that opens up America’s waterways to pollution and development and puts Americans’ drinking water at risk, or a common-sense action that gets rid of a rule particularly despised by many farmers, ranchers, and developers and returns regulatory authority to states.

Q: What is the rule?

The term “Waters of the United States” comes from the landmark 1972 Clean Water Act. The 2015 Clean Water Rule was designed to provide long-sought guidance on just which “navigable waters” fall under federal jurisdiction and are covered by the protections in that act.

Some waters, including permanent rivers and streams, clearly meet the definition. But many wetlands, seasonal streams, and ditches don’t necessarily qualify: They’re not connected to US waterways much of the time, even though they may ultimately feed into them.

In a 2006 US Supreme Court ruling to determine the jurisdiction, Rapanos v. United States, the court was split. Four conservative justices, led by Justice Antonin Scalia, offered a constrained definition that includes only “relatively permanent bodies of water.” Justice Anthony Kennedy concurred, but added that it should also include wetlands and intermittent streams that have a “significant nexus” to those waters – an opinion that has largely governed decisions since.

The Clean Water Rule carried over existing exemptions for things like agriculture and ranching. It has never taken effect, as lawsuits from states (including one involving Mr. Pruitt when he was Oklahoma attorney general) are working their way through the courts.

Q: What change is the EPA proposing?

The rule the EPA has put forward – currently in the 30-day comment period – would mean going back to the standards used 10 years ago. Since the Clean Water Rule is currently under a stay, it wouldn’t actually change practice on the ground.

There’s also some question about whether the repeal is fully legal – and it’s likely to be challenged in court. The EPA “can’t declare that within 30 days it’s going to stop following the law and ignore the standards that have been adopted” through long-standing administrative procedure, says Howard Learner, executive director of the Environmental Law & Policy Center, which supports the Clean Water Rule.

READ MORE

Reuters: ELPC’s Learner Says EPA Rollback of Clean Water Rule Imperils Safe Clean Drinking Water

Reuters
EPA and Army Corps seek to rescind clean water rule
June 27, 2017
By Valerie Volcovici 

The U.S. Environmental Protection Agency and Army Corps of Engineers released a proposal on Tuesday to repeal the 2015 Clean Water Rule, the latest move by the Trump administration to unwind environmental regulations put in place under former President Barack Obama.

The agencies are working to rescind the rule, known as the Waters of the United States rule, and reinstate the language of the rule before it was changed in 2015.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” EPA Administrator Scott Pruitt said.

In 2015, EPA and the Army Corps issued what they called the Waters of the United States rule to clarify which bodies of water should be regulated under the Clean Water Act.

The act, passed in 1972 and last amended in 1987, is intended to protect the nation’s waters from pollution.

In February, President Donald Trump said during the signing of an executive order calling for a review of the rule that the act should apply only to navigable waters that affect interstate commerce.

Some lawmakers from states with large rural areas praised the move.

“Out of state D.C. bureaucrats shouldn’t impose regulations that hurt Montana farmers, ranchers and landowners,” said the state’s Republican senator, Steve Daines.

Environmental groups criticized the move, saying it ignores public input and would put parts of the country like the Midwestern Great Lakes at risk.

“This foolish rollback of clean water standards rejects years of work building stakeholder input and scientific data support, and it imperils the progress for safe clean drinking water in the Midwest,” said Howard Learner, executive director of the Environmental Law & Policy Center.

READ MORE

 

The Daily Yonder: ELPC’s Olsen Hopes Paris Accord Pullout Doesn’t Hamper Successful Rural Clean Energy Projects

The Daily Yonder

USDA Climate Change Approach Faces Diminished Role, Worrying Many AG Leaders 

 June 6, 2017

By Bryce Oates

As the President withdraws from the Paris Climate Accords and outlines budget priorities, critics worry about a directional shift with USDA Climate Change.

President Trump announced that the U. S. would “pull out” of the Paris Climate Accords last week, signaling a clear direction for his Administration’s approach to the challenge of a changing, more energy-charged climate.

Secretary of Agriculture Sonny Perdue applauded the move, stating, “President Trump promised that he would put America first and he has rightly determined that the Paris accord was not in the best interests of the United States. In addition to costing our economy trillions of dollars and millions of jobs, the accord also represented a willful and voluntary ceding of our national sovereignty. The agreement would have had negligible impact on world temperatures, especially since other countries and major world economies were not being held to the same stringent standards as the United States.”

The news does not please some members of the agricultural community, who believe that USDA should be a partner and supporter of efforts to assist farmers in addressing climate change.

“The withdrawal continues a troubling trend,” said Andrew Bahrenburg, National Policy Director of the National Young Farmers Coalition. “The young farmers we represent, to see their President speak about climate change this way, to walk away from progress we’re making on climate resiliency, progress farmers are making to cut emissions and develop on-the-ground solutions, it’s demoralizing. It’s just incredibly discouraging.”

NYFC’s members have already moved on in the discussion about climate change as a reality according to Bahrenburg. They see the evidence every day, with hotter summers, warmer winters, more intense droughts, more intense floods. Their project, Conservation Generation, seeks to assist farmers in the arid West with tools and resources to remain viable in a water-constrained environment.

“While we remain committed to working with Secretary Perdue, he has defended proposed cuts to key conservation programs, cuts to scientific research, a 30% reduction to the Sustainable Agriculture Research and Education program,” said Bahrenburg. He said that a group of young farmers are traveling to Washington, DC, this week to discuss their opinion with policymakers.

“All of these actions, the budget proposal, walking away from the global community, leaving the Paris Accords, taken together form a real indication of where USDA is headed,” said Tom Driscoll, Director of Conservation Policy for the National Farmers Union. “It’s a scary proposition.”

Driscoll said that many NFU members utilize the climate research and data presented by the Climate Hubs, originating in the Obama Administration. And NFU member families often participate in USDA’s REAP Program, both as farmers and workers for solar companies utilizing REAP (Renewable Energy for America Program) grants. REAP funding, which support renewable energy projects in rural communities, was singled out to be eliminated in the Trump Agriculture budget.

“This is a very, very sensitive time for farmers. There’s a credit crisis upon us. Prices and farm income are low. Choking off programs that deliver cost savings for farmers, that help them to become clean energy producers, undermining the information and tools that help farmers stay in business, it’s just irresponsible for them to behave this way.”

“The Administration’s proposal to eliminate farm bill funding for REAP is not only short-sighted from a climate change adaptation and mitigation perspective, it is also completely counter to their budget narrative,” said Greg Fogel, Policy Director of the National Sustainable Agriculture Coalition, in an email to Daily Yonder.

“We’ve heard a lot about agriculture needing to ‘do more with less,” and that is exactly what REAP does. This program puts farmers in the driver’s seat by giving them more control over their energy usage and costs, and helping them to reduce both. In a time when the agricultural economy is in downturn, that kind of independence and control is more important than ever,” said Fogel.

Others have also applauded previous USDA actions related to climate change and energy programs. “We have a program here that helps establish energy projects in rural Wisconsin dairies, for poultry farms of the Southeast, for cattle producers all over America. REAP serves every state, every agricultural sector, and has strong bipartisan support. We hope it continues,” said Andy Olsen, Senior Policy Advocate for the Environmental Law and Policy Center.

Olsen said that he sees rural projects and programs working to create jobs and cut carbon emissions across the board, particularly due to USDA participation and focus. “Programs that cut energy costs for farmers, that increase local energy production through solar and wind, that increase economic investment and activity, that increase jobs in rural America, what’s not to like about that,” asked Olsen, questioning the Trump Administration’s budget priorities.

When presented with these questions about the Trump USDA’s approach to climate change, a USDA spokesperson told the Daily Yonder through email:

“The President has proposed his budget, and now the appropriators in Congress will make their mark on it. We cannot know what form the final budget will take, and so it is premature to comment on the specific impacts it may have on any USDA program. Secretary Perdue has communicated to all USDA staff that there is no sense in sugar coating the budget, but he will be as transparent as possible throughout the budget process.”

READ MORE

ELPC Statement on Proposed Rollback of Fuel Economy Standards

FOR IMMEDIATE RELEASE

March 15, 2017

Contact:

Judith Nemes

David Jakubiak

Trump Administration’s Rollback of Fuel Economy Standards Is Misguided

Rolling back common sense fuel efficiency standards will cost people more at the gas pump, increase pollution, and reduce America’s technological innovation leadership and global competitiveness

STATEMENT BY HOWARD A. LEARNER
EXECUTIVE DIRECTOR, ENVIRONMENTAL LAW & POLICY CENTER

Howard Learner, Executive Director of the Environmental Law & Policy Center, said in response to President Trump’s announcement that his administration will reverse the schedule in place for U.S. automakers to adopt improved fuel economy and pollution reduction standards by 2025:

“The misguided rollback of the CAFE fuel economy standards moves America in the wrong direction. The Trump rollback will force consumers to pump gas more often, result in more pollution that harms public health, and weaken American technological innovation leadership and competitiveness. The U.S. will import more foreign oil, which weakens our national security.”

“The Phase 2 CAFE fuel efficiency standards drive automakers to accelerate technological innovation and supports American manufacturing jobs. This is smart, common sense policy that has been adopted after many technical studies and input from a wide range of stakeholders. The United States should not voluntarily cede our technology innovation leadership to Asian and European automakers.”

###

Huffington Post: ELPC’s Mandelbaum warns Iowa bill to dismantle Des Moines Water Works could imperil clean water, lead to Flint-like crisis

Water Utility That Dared Challenge Farm Pollution Says Big Ag Is Trying To Destroy It
March 8, 2017
By Joseph Erbentraut

Des Moines Water Works CEO Bill Stowe says there’s a word for an Iowa bill that proposes to dissolve the utility he’s overseen for four years: retribution.

Two years ago, Des Moines Water Works sued three farm-heavy Iowa counties located upstream from the city for costs of filtering nitrogen the utility claims came from the farms. The state Supreme Court ruled against the utility in January, and a federal trial is set for June.

But Stowe said Iowa’s mighty agribusiness interests are seeking justice of a different form by pushing legislation that would eliminate the utility altogether as revenge for the legal action.

“It’s clear to me the bill is intended to get at us because of our lawsuit,” Stowe told HuffPost on Wednesday. “It sends its own message: Don’t step in the way of Big Ag, or you’ll suffer the consequences. That has a huge, chilling impact on civil discourse.”

The legislation, introduced last month, would dissolve existing independent water utilities in Des Moines, as well as in the neighboring suburbs of West Des Moines and Urbandale, and replace them with city departments under control of city councils.

The bill’s sponsor, Republican state Rep. Jarad Klein, has deep connections to the state’s powerful agriculture interests. Klein, a farmer whose district is 100 miles east of Des Moines, is a member of the Iowa Farm Bureau, according to his state legislature biography. The Farm Bureau has opposed the Des Moines utility’s lawsuit and donated nearly $10,000 to Klein’s 2010 campaign. Klein also belongs to groups representing pork producers and corn growers, which have opposed the utility’s litigation.

Klein denies his legislation has anything to do with the Des Moines utility’s lawsuit, according to local media. The Farm Bureau says it’s not involved. Neither Klein nor Iowa Farm Bureau representatives responded to HuffPost’s requests for interviews.

Klein has insisted to local media that the bill is a step toward a regional water authority that combines resources of Des Moines and its suburbs, giving suburban concerns more representation.

“Having more voices, more opinions, backgrounds, diversity at the table helps us produce a better result,” Klein told a local news station last month.

Debate on the legislation has been fierce. A large crowd of opponents on Monday packed the Iowa state capitol for a public hearing. Critics noted that language requiring the formation of a regional water authority has been removed from the bill since it was first introduced.

Still, the legislation appears to have momentum.

State Rep. Chris Hall, a Sioux City Democrat who sits on the state’s three-member House agriculture committee, was the lone vote against the measure when two GOP committee members advanced it last month. A Senate subcommittee also approved the bill, so it is now bound for the full House.

Hall doesn’t buy Klein’s argument for a regional utility, noting that existing state law already allows for such a move.

“When you look at the bill itself, the clear takeaway is that it’s politically motivated,” Hall told HuffPost. “There is not rationale in public policy that is sound that will be created by this legislation.”

Environmental groups say the bill could harm water quality. Josh Mandelbaum, an attorney with the Environmental Law and Poverty Center, noted that Iowa is already dealing with elevated levels of nitrates in water sources. Nitrogen, from fertilizer and animal waste, can pollute drinking water, harm aquatic life, fuel toxic algae blooms and emit a potent greenhouse gas. Mandelbaum said the bill does nothing to address those concerns.

Read More

ELPC Statement on Proposed U.S. EPA Budget

FOR IMMEDIATE RELEASE                                                     

February 28, 2017

Contact: Judith Nemes 

Trump’s Proposed U.S. EPA Drastic Budget Cuts Put Great Lakes, Safe Drinking Water, Public Health At Risk

Reckless Funding Cuts for Protecting Clean Water and Clean Air Will Hurt Midwest Communities

STATEMENT BY HOWARD A. LEARNER

Executive Director, Environmental Law & Policy Center

Howard Learner, Executive Director of the Environmental Law & Policy Center, said in response to the White House’s proposal to slash U.S. EPA funding for vital clean water and clean air programs:

“The Trump Administration’s drastic cuts to the U.S. EPA’s budget would weaken vital protections for healthy clean air and safe drinking water that all Americans care about.  Americans rely on the U.S. EPA to help protect them from dangerous air pollution and unsafe drinking water, but President Trump’s drastic budget cuts impede necessary protections for core environmental and health values and responsibilities.”

“EPA’s clean water grants to state and local agencies help prevent water pollution problems and protect clean, safe drinking water for all.  EPA’s work to protect healthy clean air is vital to reducing asthma and respiratory problems that harm both at-risk elderly and young people.  EPA’s work to reduce mercury pollution is vital to protect children’s health and make it safe to eat the fish we catch in the Great Lakes and inland lakes and rivers.”

Press Release: EPA Says Iowa DNR Changes to Clean Water Rules Violate Federal Standards

FOR IMMEDIATE RELEASE
February 7, 2017

Contact:
Judith Nemes, (312) 795-3706

Environmental Protection Agency Says Iowa DNR Changes to Clean Water Rules Violate Federal Standards
Iowa Environmental Groups Applaud EPA Declaration

DES MOINES – The U.S. Environmental Protection Agency has determined that changes to Iowa’s clean water antidegradation standards approved by the Iowa Environmental Protection Commission last August violate federal standards.

In a January 19, 2017 letter sent to the Iowa Department of Natural Resources (DNR), the EPA disapproved rulemaking changes to Iowa’s clean water antidegradation standards. EPA’s decision prevents a weakening of Iowa’s antidegradation implementation – a pillar of the Clean Water Act designed to prevent unnecessary new pollution.

Prior to the changes adopted last August, Iowa’s antidegradation standards required a discharger wanting to add new pollution to an Iowa water to demonstrate to DNR that the cost of implementing a more environmentally-friendly alternative is disproportionately high compared to the benefits. The rejected changes removed provisions requiring consideration of environmental benefits before eliminating less polluting alternatives, and replaced the prior case-by-case approach with a one-size-fits-all approach based on cost alone. Iowa is now in a situation where Iowa’s adopted rules are inconsistent with the Clean Water Act and create significant uncertainty for dischargers.

Representatives from the Environmental Law & Policy Center (ELPC) and Iowa Environmental Council (IEC) commented at several meetings over the summer to reiterate concerns that the proposed antidegradation changes would represent a big step backward in the state’s clean water efforts. The groups argued against the proposed changes at the Administrative Rules Review Committee meetings in July and September, DNR’s public hearing in June, and the EPC meetings in May and August, and submitted written comments to DNR outlining concerns. The groups warned that these changes would be inconsistent with federal law and would not be approved by EPA. The groups actively suggested a stakeholder process to develop further guidance to address other stakeholder’s concerns without weakening existing clean water protections. The two groups remain committed to that approach after EPA’s decision.

“A strong antidegradation policy is essential to protect the water quality of Iowa’s lakes and streams. EPA recognized that eliminating the consideration of environmental benefits undermined the intended purpose of these Clean Water Act rules,” said IEC Executive Director Ralph Rosenberg in response to EPA’s recent decision. “The Council will continue to speak out to reduce threats to the quality of Iowa’s drinking and recreational waters from both urban and agricultural sources.”

“We commend the EPA for maintaining the clean water protections of Iowa’s antidegradation standards,” said Josh Mandelbaum, staff attorney at ELPC. “As we’ve said all along in this process, we continue to be willing to work with stakeholders to properly implement Iowa’s strong antidegradation standards. We think that is a more constructive approach to protect Iowa’s waters than looking for ways to undermine those standards.”

Last March, a district court judge sided with the IEC and ELPC in a case that compelled DNR to appropriately enforce Iowa’s antidegradation standards – a pillar of the Clean Water Act designed to prevent unnecessary new pollution. In response, the Iowa Association of Business and Industry, Iowa Association of Municipal Utilities and Iowa League of Cities filed a petition for rulemaking, and DNR recommended changes based on the petition to the EPC in May. The Iowa EPC voted to adopt the changes on an emergency basis last August.

ELPC and IEC were instrumental in shaping Iowa’s strong but reasonable antidegradation standards. Both groups have regularly filed public comments and met with DNR officials about the proper consideration of Iowa’s antidegradation standards since 2013. DNR’s lack of action on these concerns led to the Council’s decision to have ELPC file a petition for judicial review on its behalf in the state District Court. That victory was the first legal case addressing the enforcement of Iowa’s antidegradation standards since the Iowa Supreme Court upheld the standards in 2014.

###

The State Journal-Register: Learner Says ELPC will Stand Up for Citizens’ Rights to Clean Air and Water

State_Journal-Register_logoEnvironmentalists Preparing to Battle Trump, GOP in Court
January 29, 2017
By Tammy Webber and John Flesher

CHICAGO – The night before Donald Trump’s inauguration, five environmental lawyers filed a federal court brief defending an Obama administration clean-water rule that the new president and his Republican allies have targeted for elimination, considering it burdensome to landowners.

The move served as a warning that environmentalists, facing a hostile administration and a Republican-dominated Congress, are prepared to battle in court against what they fear will be a wave of unfavorable policies concerning climate change, wildlife protection, federal lands and pollution.

Advocacy groups nationwide are hiring more staff lawyers. They’re coordinating with private attorneys and firms that have volunteered to help. They’re reviewing statutes, setting priorities and seeking donations.

“It’s going to be all-out war,” said Vermont Law School Professor Patrick Parenteau. “If you’re an environmentalist or conservationist, this is indeed a scary time.”

Trump’s first week in office only heightened their anxieties. He moved to resume construction of the Keystone XL and Dakota Access pipelines that the Obama administration had halted, while signaling intentions to abandon his predecessor’s fight against global warming, vastly expand oil and gas drilling on public lands and slash the Environmental Protection Agency’s budget.

GOP lawmakers, meanwhile, introduced measures to overturn a new Interior Department rule barring coal mining companies from damaging streams and to remove some wolves from the endangered species list.

“They’ve wasted no time in doing bad things,” said Pat Gallagher, director of the Sierra Club’s 50-member legal team, which he said is likely to grow as environmentalists increasingly regard the courts as their best option, even though success there is far from certain.

The Department of Justice, which represents the federal government in environmental lawsuits, declined to comment, while the White House did not respond to emails seeking comment. Doug Ericksen, communications director for Trump’s transition team at EPA, said of the environmentalists that he’s “not sure what they think they’re preparing for” but suspects they are stoking fear of Trump as a fundraising tool.

“They’re more concerned about raising money than protecting the environment,” Ericksen said.

Jim Burling, litigation director for the Pacific Legal Foundation, a nonprofit property rights group that sues regulators on behalf of businesses and landowners, also contended environmental groups were exaggerating the Trump administration’s threat for political and financial gain.

The government bureaucracy is entrenched, Burling said, and, “who happens to occupy the White House hasn’t made that much difference.”

Environmentalists say their fears are justified by the new administration’s antagonism toward government’s role in keeping air and water clean and the planet from overheating.

Donations began increasing after Trump’s election, “even before the fundraising letters were sent” asking for support to fight the administration’s actions, said David Goldston, government affairs director at the Natural Resources Defense Council.

Earthjustice, which has represented the Standing Rock Sioux tribe in its fight against the Dakota Access Pipeline, has about 100 staff attorneys and plans to bring more aboard, said Tim Preso, who manages the group’s Northern Rockies office.

The Chicago-based Environmental Law & Policy Center is adding four attorneys to its pre-election staff of 18 and is coordinating with more than a dozen outside attorneys who would file citizen suits against polluters for free if agencies fail to enforce existing rules, said Executive Director Howard Learner.

“We cannot fully substitute and replace the EPA doing its job,” Learner said. “But on the other hand, we’re not going to default to zero if the EPA steps backward when it comes to clean air and clean water enforcement.”

Read More

Des Moines Register: ELPC’s Mandelbaum Says There’s Consensus Ag Pollution Damages Waterways Despite Iowa Supreme Court Ruling on DMWW Case

The Des Moines Register

Januarry 27, 2017

Environmentalists Say Ruling Could Slow Water Quality Efforts

by Grant Rodgers and Donnelle Eller

An Iowa Supreme Court ruling that prevents Des Moines Water Works from getting damages from north Iowa drainage districts over high nitrate levels might take pressure off the state to do something about its flagging water quality, environmentalists said Friday.

The Supreme Court ruling was a blow to the Des Moines utility’s controversial lawsuit that claims underground drainage tiles in Sac, Calhoun and Buena Vista counties funnel high nitrate levels from farm fields into the Raccoon River, a source of water for 500,000 central Iowa residents.

Water Works hoped to reverse nearly a century of legal precedent that’s given the districts immunity from being sued for damages. The utility argues the protection relieves the drainage districts of responsibility to limit farm runoff into streams and rivers.

It also wants to force drainage districts to seek permits under the federal Clean Water Act. It’s a move that would increase regulation for about 3,000 districts statewide, and indirectly farmers across the state and, possibly, the nation. That portion of the lawsuit will still move forward toward a trial, slated for June.

“We’re disappointed, but not surprised,” said Bill Stowe, CEO of Des Moines Water Works. “The court’s ruling today does nothing to clean up Iowa’s lakes, rivers and streams.”

READ MORE

EnergyWire: ELPC’s Learner Expresses Commitment to Advance Clean Energy Standards

EnergyWireIn Midwest, a Vow to Continue Clean Energy Push Under Trump
January 23, 2017
By Jeffrey Tomich

Across the Midwest, clean energy advocates will go to work today like they would on any other Monday.

They’ll engage with legislators, regulators and utilities on policies to advance wind, solar and energy efficiency and curtail emissions of greenhouse gases and other pollutants that affect the environment and public health.

Moving forward, of course, there is one obvious change. While green groups generally had backing from the White House over the last eight years, they now face a brisk headwind with Friday’s inauguration of President Trump.

Within minutes of taking the oath of office, the incoming administration scrubbed references to climate change from the White House web site and posted an energy policy summary that outlined plans to eliminate “harmful and unnecessary policies such as the Climate Action Plan.”

Clean energy advocates across the Midwest said the reversal in policy at the executive branch cannot overcome trends that are increasingly steering utilities away from coal and to cleaner sources of energy.

Solar panels are a fraction of their cost only a few years ago. Utilities and corporations are continuing to add thousands of megawatts of new wind generation across the Midwest. Energy demand is declining, or at least flat-lining even as local economies grow. And emissions are falling and aging coal plants are retiring.

“There’s a market transformation that’s going on that’s being driven by smart policies combined with technological improvements,” said Howard Learner, executive director of the Environmental Law and Policy Center, a Midwest environmental advocacy group.

Read More

ELPC’s Founding Vision is Becoming Today’s Sustainability Reality

Support ELPC’s Next 20 Years of Successful Advocacy

Donate Now