CLEAN WATER

MinnPost: Why a Clean Water Rule May – Or May Not – Be a Big Issue in Minnesota’s First Congressional District

Why a Clean Water Rule May – Or May Not – Be a Big Issue in Minnesota’s First Congressional District

By Walker Orenstein

As farmers in southern Minnesota grapple with President Donald Trump’s escalating trade war — testing the alliance between the agriculture industry and the GOP that substantially benefited Trump in 2016 —  First Congressional District Republican candidate Jim Hagedorn is making sure to showcase the administration’s industry-friendly policies as part of his effort to persuade voters to send him to Congress.

That means highlighting support for mining in northern Minnesota, including the recent decision to end a study of potential impact from copper-nickel mining on the Superior National Forest and the neighboring Boundary Waters Canoe Area Wilderness.

But it also includes touting a Trump administration effort that hits much closer to home in southern Minnesota: the rollback of a 2015 update to the Clean Water Act that expanded protections to small bodies of water feeding larger rivers and lakes — a policy that happened to be one of President Barack Obama’s signature environmental initiatives.

“It’s one of the biggest regulatory issues in agriculture,” Hagedorn said. “I bring it up all the time.”

A fight over water protections

The Obama EPA’s 2015 rule change has a long backstory. It starts more than 40 years ago, when Congress first approved the Clean Water Act. That original bill gave the federal government jurisdiction over the “waters of the United States.”

Ever since, people have not stopped arguing what that actually means, and how broad the government’s authority is under the law. Does it apply only to  lakes and rivers and water that feeds directly into them? Or does the law cover even small wetlands, bogs, streams and other isolated or seasonal bits of water?

Supreme Court rulings on the matter have never quite cleared things up, so under Obama, the EPA stepped in to make firm — and far-reaching — guidelines on what could be considered a Water of the United States. John Kolb, a St. Cloud-based attorney who focuses on water and natural resources regulations, says a long study conducted by the EPA used to justify its rule boiled down to: “All water is connected.”

Many farmers took issue with the decision, however. Beyond their general opposition to government expansion, industry groups said the rule change meant they were going to be targeted and penalized for standard agricultural practices. Kirby Hettver, president of the Minnesota Corn Growers Association, said farmers out West were found in violation of Obama-era Clean Water Act “just for tilling their soil.”

He was referring to a case that began in 2012 in which the government ordered a farmer in Northern California, John Duarte, to pay millions in fines and penalties after it said he broke the law by “deep ripping” his field to plant wheat without a permit, and disturbing seasonal wetlands called vernal pools that are notably home to fairy shrimp. (While there are plenty of agricultural exemptions to the Clean Water Act, the government said the field wasn’t subject to them since it hadn’t been plowed in decades. The case was eventually settled.)

While Duarte’s legal saga started before Obama’s update to the Clean Water Act, it became a rallying cry for conservatives worried about government overreach, a charge that found a sympathetic reception within the Trump administration. Earlier this year, the EPA withdrew the rule and is now in the process of writing a more narrow definition of which waters are protected under the Clean Water Act.

Effect in Minnesota

And yet, whether any of this means much for Minnesota remains a topic of debate. One reason is that despite the Trump EPA’s withdrawal of Obama’s Waters of the United States rule, litigation has reinstituted the Obama rule in more than 20 states, including Minnesota.

For another, Minnesota administers much of the Clean Water Act for itself, and it adopted its own stringent definition of protected waters decades ago, said Jean Coleman, an attorney for the Minnesota Pollution Control Agency. In fact, Minnesota’s rule is far broader than the Obama-era water rule, and includes everything from irrigation and drainage systems to all “accumulations of water, surface or underground, natural or artificial, public or private,” within the state, she said.

“The definition of ‘Waters of the State’ is extremely expansive and it captures all waters that would be under the Obama definition of ‘Waters of the U.S.’ or under any other definition of ‘Waters of the U.S.’ because it is so expansive,” Coleman said.

She added: “I don’t think you can think of anything that’s liquid water that falls from the sky that’s not a water of the state.”

The state also has its own tough laws protecting wetlands and more, said Scott Strand, senior attorney for the Environmental Law and Policy Center, a nonprofit environmental advocacy group. Those laws blunt any given update or reversal of the federal Waters of the United States rule. “It will have a more dramatic impact in states that don’t have vigorous state clean water protections,” Strand said of the changes to the Waters of the United States rule.

 

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Crain’s Chicago Business: Michigan Offers to Pay Millions for Illinois Asian Carp Project, but Rauner Balks

 

Michigan Offers to Pay Millions for Illinois Project, but Rauner Balks

Greg Hinz On Politics

It’s an unusual plan: A neighbor state would pick up most of the tab for efforts to keep Asian carp out of the Great Lakes. What’s keeping Rauner from signing up?

States nowadays have trouble paying for the stuff within their borders that’s important, much less offering to pick up the tab for a project in another state. And when they do, you’d think the recipient would say yes.

But not Illinois Gov. Bruce Rauner. Though the state of Michigan is offering to pony up millions of dollars a year to pay the costs of operating new Asian carp-blocking locks along the Illinois River at Brandon Road near Joliet—with seven other states and the Canadian province of Ontario chipping in, too—Rauner is not saying yes, at least so far.

The usual offer to pay costs for a project located in Illinois comes from outgoing Michigan Gov. Rick Snyder—like Rauner, a Republican.

In a phone interview yesterday, Snyder strongly pushed a “fair share” plan in which Illinois would pay just $132,700 a year of the estimated $8 million needed to operate the Brandon facility. Michigan itself would pay $3.3 million a year, based on its share of the total Great Lakes coastline, and legislative leaders in that state are committed to pay that amount for at least five years, more than $16 million total.

“We’re interested in (protecting) the Great Lakes,” which scientists say could suffer enormous losses to native fish if the voracious carp make it that far, Snyder said. “Why wouldn’t Illinois be excited about sharing project costs?”

Snyder said that regular discussions have been occurring for months among officials from the various states and provinces, including Wisconsin, New York, Ohio, Minnesota, Pennsylvania and Indiana. Now, it’s time to act, he said.

“We’d just as soon quit dating and get married,” Snyder quipped. “We’d like to get an agreement with Illinois.”

Michigan is so interested that it will pick up any other state’s portion of the bill if they can’t pay it themselves, he said.

Rauner, in an interview after he appeared before the Crain’s editorial board yesterday, indicated some interest. But he didn’t offer to sign up, either.

“The idea certainly has merit. We’ve been talking to (Snyder) about it,” Rauner said. But “we’re not committed to it.”

Rauner declined to elaborate, but there has been considerable back and forth lately about who will pay for construction costs that could hit $200 million or more.

Since I last wrote about this in May, the Rauner administration has dropped its request to double the width of locks to 1,200 feet to help the barge industry. Officials say barge needs can be accommodated in other locations.

In addition, Congress is in the final stages of passing legislation that directs the Army Corps of Engineers to finalize its Brandon Road study and put a specific proposal on the table by early next year. The legislation also would require the feds to pay at least 80 percent of construction costs.

That still would leave Illinois with a capital bill, but according to local environmental leader Howard Learner of the Environmental Law & Policy Center, other states are willing to pick up part of the construction costs, too.

“Rauner needs to find a way to say yes,” Learner said.

Snyder’s comments came as Michigan released results of a public opinion poll that indicate 80 percent of Great Lakes residents want action soon on the Brandon Road proposal.

READ COLUMN HERE

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Detroit Free Press OpEd: President Trump’s War on the Great Lakes

 

August 30, 2018

President Trump’s War on the Great Lakes

OpEd

By Howard Learner

Summertime reminds us that the Great Lakes are a great natural treasure. Forty-two million people rely on this freshwater for safe drinking water supplies, but it’s more than that. The Great Lakes is where we live, work and play.

President Donald Trump doesn’t seem to get it. He won the 2016 election in the Great Lakes states, but Trump’s policy shifts and budget cuts amount to a war on the Great Lakes. The President’s budgets have proposed to zero-out or cut 90% of funding for the successful Great Lakes Restoration Initiative. Congress has twice rejected those cuts and restored full funding of $300 million annually.

The Department of Commerce is proposing to cutting the acreage of the popular Thunder Bay National Marine Sanctuary in Lake Huron along the Alpena to Mackinaw City shoreline. The EPA is attempting to roll back common-sense Clean Water Act standards that protect safe clean drinking water. What is President Trump thinking?

Both Michigan Republican and Democratic leaders have publicly disagreed with these misguided proposals. So have business, civic and environmental groups. Protecting the Great Lakes is bipartisan and nonpartisan.

The Great Lakes are a global gem. They contain 21% of the planet’s fresh water supply and provide a rich aquatic habitat for many species. The Great Lakes support a $7 billion annual fishing industry, and draw tourists who support shoreline communities’ economies.
Military analysts say future wars will be fought over water. Fresh water availability is our region’s competitive advantage. We can’t afford to mess it up. So, why this war on the Great Lakes?

First, the Great Lakes Restoration Initiative is a common-sense program that supports shoreline and wetlands protection projects, keeping out invasive species and reducing harmful algae blooms. Congress has again rejected the President’s budget cuts and restored full funding for this important program. The White House’s response: a new Statement of Administration Policy opposing this funding. The bipartisan Congressional delegation and Governors strongly disagree.

Second, the Department of Commerce continues to “review” the Thunder Bay National Marine Sanctuary, the nation’s only such freshwater preserve, and proposes to cut its size down by 90% from 4,300 to 448 square miles. Six Michigan Congress members wrote to Commerce Secretary
Ross explaining the economic, tourism and ecological value of this National Marine Sanctuary, which is a source of pride and income to northeast Michigan shoreline communities.

The Thunder Bay National Marine Sanctuary draws visitors to explore “Shipwreck Alley” where 100 ships rest on Lake Huron’s bottom, and learn about Great Lakes maritime history. It’s not controversial. Gov. Snyder formally requested that Secretary Ross end the review and leave the Sanctuary boundaries alone, but the Secretary denied that request. Under the National Marine Sanctuaries Act, an adjacent state’s governor can veto a boundary change. Gov. Snyder should publicly announce that he’ll do so, and call on governor candidates Schuette and Whitmer to agree.

Third, the Trump EPA is rushing to rollback clean water standards that protect safe drinking water and preserve fish and wildlife habitat. Likewise, in federal court, the EPA is resisting sensible regulatory standards to reduce agricultural runoff pollution that causes toxic blue-green algae blooms in Lake Erie, which threaten drinking water for 500,000 people in the Toledo area and harm commercial fisheries.

Good policy is good politics. The battle for Great Lakes protection is well worth fighting for and winning, but it shouldn’t have to be fought. The public and wise political leaders know better

READ OpEd HERE

Detroit News: Environmental groups sue U.S. Coast Guard over Great Lakes oil spill response plans

by Beth LeBlanc

Two environmental groups are suing the U.S. Coast Guard for its admitted inability to respond adequately to a Great Lakes oil spill and, by extension, the lawsuit seeks to invalidate the response plans for facilities such as Enbridge, which operates Line 5 beneath the Straits of Mackinac.

The lawsuit filed Wednesday in Detroit federal district court stems from comments former Coast Guard Commandant Adm. Paul Zukunft made during a November congressional committee hearing, when he told lawmakers the agency is not prepared for a major pipeline oil spill in the Great Lakes.

His comments, the lawsuit said, belie and invalidate the Coast Guard-approved Northern Michigan Area Contingency Plan and violate the Oil Pollution Act of 1990, according to a statement from the National Wildlife Federation and the Environmental Law & Policy Center.

The current plan leaves the Coast Guard unprepared to address a worst-case spill from Enbridge’s Line 5, which could affect more than 400 miles of shoreline and 60,000 acres of wildlife habitat, said Oday Salim, a staff attorney for the National Wildlife Federation.

. . . . .

The lawsuit asks the judge to declare the approval of the Northern Michigan contingency plan a violation of the Oil Pollution Act and invalidate sections of the plan that relate to open waters and any facility-specific response plans created in coordination with the plan, including Enbridge’s facility response plan.

“You are not allowed to operate without a facility response plan,” Kearney said. “If the court agrees, as they should, that the area contingency plan is not valid then certainly one of the outcomes could be someone requesting that Line 5 be shut down.”

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Environmental Groups Sue U.S. Coast Guard for Approving Northern Michigan Plan and Later Admitting Inability to Respond to an Oil Spill in the Great Lakes

FOR IMMEDIATE RELEASE

Contacts:

Judith Nemes, Environmental Law & Policy Center, JNemes@elpc.org (773) 892-7494

Jordan Lubetkin, National Wildlife Federation, lubetkin@nwf.org  (734) 904-1589

Environmental Groups Sue U.S. Coast Guard for Approving Northern Michigan Plan and Later Admitting Inability to Respond to an Oil Spill in the Great Lakes

Lawsuit Claims that Coast Guard fails to comply with Oil Pollution Act of 1990

DETROIT – Contradicting its certification that the Northern Michigan Area Contingency Plan (NMACP) is adequate to remove a worst case discharge of oil into the Great Lakes, (former) Coast Guard Commandant Adm. Paul Zukunft testified under oath before Congress that the Coast Guard is not prepared for a major pipeline oil spill in the Great Lakes. The Coast Guard disregarded the law when it approved the NMACP, while then publicly admitting that the Coast Guard is “not semper paratus for a major pipeline oil spill in the Great Lakes.”

The Environmental Law & Policy Center and the National Wildlife Federation filed a lawsuit today in the U.S. District Court for the Eastern District of Michigan asking the Court to declare that the Coast Guard violated the Oil Pollution Act of 1990 (OPA 90) when it approved the NMACP, thereby invalidating the portions which apply to oil pipelines in the Great Lakes. As a result, any individual Facility Response Plan for an oil pipeline operating in the open waters of the Great Lakes, such as the Enbridge Line 5 oil pipeline in the Straits of Mackinac, would likewise be invalid. The U.S. Coast Guard in June 2017 approved the NMACP, purportedly certifying that the plan was in substantial compliance with all of its requirements, including the Oil Pollution Act of 1990.

“The U.S. Coast Guard admitted that it’s not fully ready and fully able to protect the Great Lakes from a major oil spill as required for a response plan under the Oil Pollution Act of 1990,” said Howard Learner, Executive Director and attorney for the Environmental Law & Policy Center.  “The Great Lakes are where we live, work and play, and supply safe clean drinking water for 42 million people. If the U.S. Coast Guard is unable to fulfill its emergency response duties, then our Great Lakes waters are even more at risk from a potential Enbridge Line 5 oil pipeline spill.”

In 2014, Enbridge discovered dozens of damaged areas on the 4.5-mile segment of Line 5 that runs underneath the Straits of Mackinac. Environmental advocacy groups have been calling for Enbridge to shut down Line 5 before a major break potentially sends oil flowing into Lake Michigan and Lake Huron. Earlier this year, an anchor strike dented portions of the pipeline and Enbridge was forced to reduce the pressure in Line 5 by 40% as a critical precautionary step.

“The Coast Guard’s admission that it cannot adequately address an oil spill in the Great Lakes puts our most important natural resource at risk,” said Margrethe Kearney, Senior Attorney of the Environmental Law & Policy Center. “The Coast Guard’s failure to ensure that there is a plan in place to respond to a worst-case oil spill threatens our access to a clean drinking water supply, our irreplaceable Great Lakes and unique wildlife habitats, and the strength of our Pure Michigan economy.”

“Until we decommission this aging, risky pipeline, we need the best-possible spill response plan to protect our Great Lakes, our communities, our wildlife, and our economy,” said Oday Salim, Staff Attorney for the National Wildlife Federation Great Lakes Regional Center. “A worst-case oil spill from Line 5, even according to an Enbridge-funded study, could impact over 400 miles of shoreline and 60,000 acres of unique wildlife habitat as well as cause billions in economic losses and the irrevocable loss of wildlife and cultural resources.”

 

 

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Toledo Blade: Lake Erie Foundation Seeks to Join Landmark Lawsuit

Lake Erie Foundation Seeks to Join Landmark Lawsuit 
By Tom Henry

The 500-member Lake Erie Foundation is the latest group trying to become co-plaintiffs in a lawsuit calling upon Senior U.S. District Judge James G. Carr to order the most comprehensive cleanup strategy for western Lake Erie.

The foundation is a nonprofit formed in 2016 when Lake Erie Waterkeeper and the Lake Erie Improvement Association were combined.

In a document filed Tuesday in U.S. District Court, the group joined the cities of Toledo and Oregon in making a near-identical request to become co-plaintiffs in a lawsuit two groups — the Environmental Law & Policy Center and Advocates for a Clean Lake Erie — brought against the U.S. Environmental Protection Agency in 2017.

The latter two groups have contended all along that the U.S. EPA has not been living up to requirements for Lake Erie that were established by Congress under the federal Clean Water Act back in 1972.

 

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Toledo Blade: Toledo, Oregon Become Parties to ELPC Lawsuit against US EPA for Stronger Lake Erie Protections

Toledo, Oregon Push for Stronger Lake Erie Protections
By Tom Henry

Toledo and Oregon have become parties to a lawsuit filed by two groups that calls upon U.S. District Judge James G. Carr to order the most comprehensive cleanup strategy for western Lake Erie, known as a total maximum daily load.

The next court date is Aug. 21.

The U.S. Department of Justice, on behalf of the U.S. Environmental Protection Agency, is opposed.

The two plaintiffs, the Midwestern-based Environmental Law & Policy Center and the Toledo-based Advocates for a Clean Lake Erie, contend the federal Clean Water Act requires the highly aggressive TMDL cleanup strategy to be followed by the Ohio Environmental Protection Agency once the Kasich administration finally relented in March — after years of resistance — and declared western Lake Erie’s open waters to be impaired.

They want the judge to impose a TMDL order on the U.S. EPA, with the understanding the federal agency would then require the Ohio EPA to carry out the program.

Toledo’s decision to get involved dates back to May 1, 2017, a day before Mayor Wade Kapszukiewicz announced his candidacy for that office.

During an all-day tour of southeast Michigan factory farms, Mr. Kapszukiewicz, a Democrat, told The Blade there were two things he would do if elected: First, call for the impairment status and, second, have Toledo assist the two plaintiffs in their lawsuit.

He never had to call for the impairment status once elected because former Mayor Paula Hicks-Hudson — a Democrat who had long sided with the Kasich administration on that issue — had a sudden change of heart last September, weeks before the election, after a thick blanket of algae appeared in downtown Toledo just as ProMedica was preparing for a major regatta near Promenade Park.

“I campaigned on cleaning up the lake and we are following through on that today by filing this motion,” Mr. Kapszukiewicz said in his prepared remarks Friday, referring to a court filing known as an amicus brief.

“We need to hold the nonpoint sources accountable and this is one way we can do it. We support the efforts of the Environmental Law & Policy Center, Advocates for a Clean Lake Erie, and Mike Ferner, who has pushed for years to get tougher regulations for polluters,” the statement said.

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The Blade: U.S. EPA Accused of Procedural ‘Sleight-of-Hand’ over Western Lake Erie Algae Cleanup Strategy

U.S. EPA Accused of Procedural ‘Sleight-of-Hand’ over Western Lake Erie Algae Cleanup Strategy
By Tom Henry

In the latest volley of a high-stakes lawsuit that could affect the future of western Lake Erie, the U.S. Environmental Protection Agency is being accused of playing games and “once again engaging in [a] procedural sleight-of-hand” while also letting the state of Ohio give “lip service” to the idea that it’ll someday enact the most aggressive cleanup strategy.

The accusations were leveled in a U.S. District Court brief filed Tuesday by the Environmental Law & Policy Center and its co-plaintiff, Advocates for a Clean Lake Erie.

The two groups, through its lawsuit against the U.S. EPA, forced the Ohio EPA earlier this year to designate western Lake Erie as impaired under the federal Clean Water Act, ending the Kasich administration’s years of resistance on behalf of agriculture. They have implored Senior U.S. District Judge James G. Carr of Toledo to stick with the case so the designation does not just become symbolic.

Madeline Fleisher, an ELPC attorney based in Columbus, stated in the opening line of her brief that the U.S. EPA “is once again engaging in [a] procedural sleight-of-hand in an attempt to obscure the substance of this case,” almost echoing an admonishment the judge made in a 25-page order back in April when he accused the two regulatory agencies of botching the Lake Erie impairment controversy and, at one point, accused the U.S. EPA of demonstrating a “whiff of bad faith.”

 

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Chicago Tonight: How Healthy is Lake Michigan? A Checkup on the Great Lakes

How Healthy is Lake Michigan? A Checkup on the Great Lakes
By Nicole Cardos

When it comes to the health and maintenance of Lake Michigan, some environmentalists, property owners and even surfers have expressed their concerns.

Some of those concerns: toxins, the Foxconn deal in Kenosha and rising lake levels.

“Last year, the amount of water released from Lake Superior into lakes Michigan and Huron was the highest in 32 years,” the story states.

But that transfer of water is also due to the fact that Lake Superior is geographically higher than lakes Michigan and Huron, said Howard Learner, president and executive director of the Environmental Law and Policy Center. On top of that, Lake Michigan is self-contained.

“Huron has an outlet and water makes its way to Erie,” Learner said. “Michigan is a big bathtub.”

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MPR News: Line 3 Still has Regulatory Ground to Plow Before Bringing in Bulldozers

July 10, 2018

Line 3 Still has Regulatory Ground to Plow Before Bringing in Bulldozers

By Elizabeth Dunbar

Before Enbridge Energy can bring in the bulldozers and backhoes to build its Line 3 pipeline across northern Minnesota, it still has to go through more months of regulatory scrutiny.

The project took a big step forward late last month when it won approval from the Minnesota Public Utilities Commission after nearly four years of review — but it was by no means the last hurdle the controversial project faces. Gov. Mark Dayton’s office has tallied 29 more approvals needed before construction can start.

And even if Enbridge gets all of those permits approved by state agencies, county governments and federal regulators, there’s still the likelihood that one or more decisions will be challenged in court.

“Patience is a virtue in advocacy for large-scale infrastructure projects and large-scale natural resource development projects,” said Nancy Norr of Jobs for Minnesotans, a group that supports Line 3.

The company expects the bulk of the permits will be in hand by Nov. 1, according to Guy Jarvis, executive vice president for pipelines and projects at Enbridge.

“Once you have all that, it’s still several months of mobilization before you’re actually out doing significant construction,” he said, predicting that construction could start in early 2019.

The first thing on Enbridge’s to-do list is filling in the details on an agreement with the PUC to adhere to certain conditions. That includes a plan for paying for cleanup, should the new pipeline spill, and offering jobs to Native American contractors. Those details are due next week, and project opponents say they’ll be heavily scrutinized.

“We still have a long way to go at the PUC,” said Scott Strand, the attorney representing Friends of the Headwaters. He says once the conditions are clarified, groups opposing Line 3 can ask for reconsideration, and can also ask the Minnesota Court of Appeals to review the decision.

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