Clean Water Act

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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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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Great Lakes Today: Big Week of Great Lakes News

Wrapping up Big Week of Great Lakes News
By Elizabeth Miller

Over 100 advocates for the Great Lakes are in Washington D.C. this week, lobbying Congress to continue its bipartisan support on issues including pollution clean-up and drinking water protection.

This year’s Great Lakes Day is similar to last year’s – it has a lot to do with making sure the Great Lakes Restoration Initiative receives full funding – $300 million a year. Trump’s latest budget proposal cuts that number down to $30 million.

The Healing Our Water – Great Lakes Coalition also has a list of priorities to mention in meetings with members of Congress – they include strengthening conservation programs in the new Farm Bill and protecting the Great Lakes from invasive species.

Alicia Smith of Toledo, Ohio’s Junction Coalition says members of Congress have been receptive to their concerns and comments, but she wants to bring those conversations back home.

“It’s one thing to have these conversations [in Washington],” said Smith. “But it’s more important for us to be able to take information like the Farm Bill back to the people who may not have the privilege of being here.”

Junction Coalition will host a meeting March 19 to share what Smith and others learned.

Wednesday, the U.S. Environmental Protection Agency released a plan to combat harmful algal blooms. The plan has two parts – a summary of what Michigan, Indiana, Ohio, and Pennsylvania are doing, as well as an outline of what federal agencies are doing.

This is part of an agreement between the U.S. and Canada made in 2012 to reduce phosphorus in Lake Erie’s western basin by 40 percent by 2025. Canada released its plan last month.

The National Wildlife Federation’s Gail Hesse says the U.S. plan is an improvement on last year’s draft, but there’s still something missing.

“The NGO community I believe is looking for a bit more in terms of accountability,” said Hesse. “What I mean by that is how do we answer the ‘what if’ questions? What if we don’t hit those benchmarks and targets, and what if the projections do not hold up for what we expect them to be?”

Another report out this week looks at water infrastructure and equity in the Great Lakes. Released by the U.S. Water Alliance, the report points out nine strategies important to the region. The report also presents real-life examples of communities improving their water system — from helping struggling utilities to addressing lead in water.

I asked Crystal Davis from the Alliance for the Great Lakes if there is room for full Great Lakes Restoration funding and the billions need to fix our region’s water infrastructure.

“There should be,” said Davis. “I know that may come at the expense of other programs, but it is time to prioritize what is important to the greatest amount of people.

“When you talk about water, it is worth the investment. This is a growing issue, it’s affecting our youth, it’s affecting our senior citizens, it’s affecting every segment of the population.”

Meanwhile, oral arguments took place this week as part of a lawsuit against the U.S. EPA.

The Environmental Law and Policy Center and Advocates or a Clean Lake Erie brought the lawsuit last year. At question is whether western Lake Erie should be declared an impaired watershed under the Clean Water Act.

The organizations say Ohio has not been taking responsibility for addressing the algae bloom problem, and that EPA needs to step up and label western Lake Erie as impaired.

That determination triggers a long process that includes finding sources of pollution and limiting the amount sources can pollute.

“It all comes back to accountability,” said Madeline Fleisher, an attorney for the environmental law center. “We’ve been suing U.S. EPA about making sure the impairment determination happens because that’s step one under the Clean Water Act.”

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New York Times: Advocacy Groups Say EPA Not Doing Enough to Protect Lake Erie

By The Associated Press

TOLEDO, Ohio — Environmental advocates who sued the U.S. Environmental Protection Agency because they believe not enough is being done to address the toxic algae problem in Lake Erie said they think the agency’s response to the suit only bolsters their argument.

The groups want the EPA to declare that the western end of the lake is impaired by the algae that’s a threat to drinking water and fish. Such a designation could lead to stricter pollution controls.

The federal agency last spring sided with Ohio’s environmental regulators who recommended not listing the lake’s open waters as impaired under the federal Clean Water Act.

Algae blooms have turned the lake unsightly shades of green most summers over the past decade. An outbreak in 2014 contaminated the tap water for two days for more than 400,000 people around Toledo.

While steps have been taken to reduce the farm fertilizer runoff and municipal sewage overflows that feed the algae, environmental groups and some political leaders have become frustrated by the pace and depth of those efforts and have called for the impairment listing.

The EPA in court documents filed last week said Ohio’s environmental regulators didn’t look at whether the lake’s open waters were meeting the state’s water quality standards.

“They’re owning up to the fact that Ohio didn’t do this,” said Madeline Fleisher, an attorney for the Chicago-based Environmental Law and Policy Center.

She said the EPA’s acceptance of Ohio’s decision not to seek the impairment designation shows that the federal agency isn’t willing to address the algae problem in the shallowest of the Great Lakes.

“We expect better from the agencies that are supposed to be leading the way on protecting people and the environment,” Fleisher said.

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Cleveland NPR: US EPA Responds to ELPC Lawsuit for “Impaired” Lake Erie

Cleveland NPR: Ideastream 

US EPA Responds to Lawsuit for “Impaired” Lake Erie
By Elizabeth Miller

The US Environmental Protection Agency says the Ohio EPA did not fully look at research on harmful algal blooms when considering adding Lake Erie to its list of “impaired” waters.

Two organizations are suing the US EPA to request an “impaired” designation for the open waters of western Lake Erie. Calling the lake “impaired” would set limits on pollution sources including agricultural runoff and wastewater treatment plants.

Madeline Fleisher is with the Environmental Law and Policy Center, one of the groups in the lawsuit. “Since Ohio failed to evaluate the open waters of Lake Erie, what does that mean? Did that violate the Clean Water Act? We’ll need to argue that question to the judge, and he will give us a ruling,” explains Fleisher.

Advocates for a Clean Lake Erie is the other organization. In a statement, the organization’s leader, Mike Ferner, said “the Clean Water Act is still the law of the land and we intend to make the EPA do its job to protect our environment, our health and Toledo’s drinking water.”

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Great Lakes Now: Chicago Group Files Suit Over Lake Erie Pollution

Great Lakes Now

Chicago Group Files Suit Over Lake Erie Pollution

By Gary Wilson

With the peak algae season nearing, pressure is mounting on the federal government and Ohio to be more aggressive in combating nutrient pollution from farms that discharge to Lake Erie.

Last week the Chicago-based Environmental Law and Policy Center (ELPC) filed suit in Ohio alleging that the U.S. Environmental Protection Agency failed to protect Lake Erie by not holding Ohio to its obligations under the Clean Water Act.

Specifically, the suit alleges that U.S. EPA should have disapproved Ohio’s list of officially designated “impaired waters” because western Lake Erie was not included.

“U.S. EPA illegally gave Ohio a pass on its obligation to recognize that harmful algal blooms are impacting more than just a few limited areas of Lake Erie,” said attorney Madeline Fleisher in an ELPC press release. Fleisher is based in Columbus, Ohio.

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WATCH Gary Wilson’s interview with ELPC’s Kevin Brubaker

Sandusky (Ohio) Register: ELPC & Others Sue to Have Lake Erie Declared ‘Impaired’

Sandusky Register

Groups Sue to Have Lake Erie Declared “Impaired”

by Tom Jackson

SANDUSKY — Environmental groups have filed a lawsuit in federal court in Toledo, seeking to have the open waters of Lake Erie declared “impaired” under the provisions of the Clean Water Act.

The lawsuit essentially seeks to overturn the U.S. EPA’s decision to approve a declaration by the Ohio EPA that the open waters of the lake are not impaired. Michigan, however, has declared that the lake is impaired.

The groups argue that harmful algal blooms in Lake Erie, an annual event, have impaired the lake’s waters. Hundreds of thousands of people in Toledo were told not to drink the water in August 2014 after toxins from that year’s HAB poisoned the water supply.

An attorney involved in the lawsuit says that designating the lake as impaired would force stronger action to deal with harmful algal blooms.

“U.S. EPA illegally gave Ohio a pass on its obligation to recognize that harmful algal blooms are impacting more than just a few limited areas of Lake Erie,” said Madeline Fleisher, staff attorney in Columbus, Ohio, for the Environmental Law and Policy Center.

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Greenwire: Enviros Sue EPA Over Approving Ohio’s Lake Erie Plan

Greenwire
Enviros sue EPA over approving Ohio’s Lake Erie plan
By Ariel Wittenberg

In May, EPA approved Ohio EPA’s 2016 Integrated Water Quality Monitoring and Assessment Report, which found that certain sections of Lake Erie were “impaired,” a designation that has legal implications under the Clean Water Act.

Groups sued EPA to force a decision on the report. Now the Environmental Law & Policy Center and Advocates for a Clean Lake Erie are challenging that approval, filing a complaint today in the U.S. District Court for the Northern District of Ohio.

The groups say that Ohio wrongly limited its impairment finding to shorelines and areas near drinking water intakes and that the open waters of Lake Erie are also impaired by the toxic algae blooms that have plagued the lake for many years. EPA, they say, approved Ohio’s determination without enough analysis.

“U.S. EPA rubber-stamped something that Ohio did that is not going to protect water quality in Lake Erie and isn’t fully recognizing a serious problem that the federal government is supposed to have a role in solving,” said a statement.

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PRESS RELEASE: Environmental Groups Sue EPA for Rubber-stamping Ohio EPA’s Refusal to Call Open Waters of Lake Erie “Impaired”

FOR IMMEDIATE RELEASE                                          Contact: Judith Nemes

July 18, 2017                                                                                                                                                                               

 Environmental Groups Sue EPA for Rubber-stamping Ohio EPA’s Refusal to Call Open Waters of Lake Erie “Impaired”

 ELPC warns nutrient pollution reduction won’t occur without comprehensive approach to algal bloom problem

Toledo, OH – Today, the Environmental Law & Policy Center (ELPC) and co-plaintiffs Advocates for a Clean Lake Erie (ACLE), Susan Matz, and Michael Ferner sued the U.S. Environmental Protection Agency in a federal court in Ohio to challenge its decision to approve Ohio EPA’s refusal to assess whether the open waters of Lake Erie are “impaired” under the Clean Water Act.

The lawsuit was filed in U.S. District Court for the Northern District of Ohio in Toledo against the EPA, EPA Administrator Scott Pruitt, and Acting Regional Administrator Robert Kaplan. The environmental groups charge the open waters of Lake Erie should be designated impaired under the Clean Water Act because harmful algal blooms that form there most years are preventing those waters from meeting basic state water quality standards.

Meanwhile, the Michigan Department of Environmental Quality has already designated the entire neighboring portion of Lake Erie within its boundaries as “impaired” by the same algal blooms.

“U.S. EPA illegally gave Ohio a pass on its obligation to recognize that harmful algal blooms are impacting more than just a few limited areas of Lake Erie,” said Madeline Fleisher, ELPC’s staff attorney in Columbus, Ohio. “The impairment designation is a key first step in the Clean Water Act’s process for addressing serious water quality issues. Without the impairment designation, Ohio is likely to continue relying on unenforceable, voluntary measures to reduce phosphorus pollution that won’t do enough to fix the problem.”

Ohio EPA recognized that algal bloom problems are impairing Lake Erie’s shoreline and areas which are used as a source of public drinking water. However, the agency refused to address the algal blooms’ effects on the full extent of the lake’s waters even though it’s a single water body.

The blooms can produce toxins that make people and pets seriously ill when ingested, and can also harm aquatic species by poisoning water or using up oxygen to create “dead zones” in the lake. The algal blooms are caused by phosphorus pollution that primarily comes from manure and fertilizer running off of agricultural land.

“The lake isn’t ‘sort of’ impaired in a couple places — it’s impaired throughout the western basin,” said Mike Ferner, ACLE coordinator. “Public officials need to acknowledge it will take mandatory steps to get Lake Erie back to health. Toledo spent tens of millions of dollars on chemicals and new facilities to decontaminate our drinking water after hundreds of factory farms in the watershed use it as their toilet.”

Earlier this year, Ohio Gov. Kasich’s Administration released an action plan for reducing nutrient pollution in Lake Erie, which contributes to toxic algae blooms that can endanger drinking water and make it unsafe for recreation. The plan was criticized for proposing very little action beyond voluntary measures that aren’t enough to achieve Ohio’s 40% phosphorus reduction commitment under the Great Lakes Water Quality Agreement intended to clean up the Great Lakes.

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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.

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