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EPA

The Navigable Waters Rule

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The saying goes something like this, “whiskey’s for drinking and water’s for fighting.” It is typically associated with ownership rights in the west. Still, for many years it has resonated with those of us who deal with the changing legal landscape and battlegrounds surrounding the Clean Water Act.

I’ve been working on or following the Clean Water Act jurisdictional issues for most of my conservation career. In 2003, I was the conservation director for the Izaak Walton League of America. We released a study titled “Jurisdiction Under the Clean Water Act: Implications of the SWANCC Decision” (copy available upon request.) Since then, there have been many twists and turns, making this one of the most contentious and complicated issues I’ve ever dealt with.

Where are we today?

In April 2020, the Environmental Protection Agency issued the “Navigable Waters Protection Rule: Definition of Waters of the United States,” aka the “Navigable Waters Rule.” undoing the Obama administration’s work. As Trout Unlimited noted, “This rule replaces a 2015 Rule, which clarified the extent of Clean Water Act protections for small streams and wetlands.  This new 2020 rule not only reverses the clarifications made in 2015 but further reverses protections that have been in place dating back to the 1970s.”

My friend Sam Lungren, MeatEater’s fishing editor, wrote a terrific article, Patagonia Will Sue Trump Admin. Over Clean Water Act, which not only explains the state of play today but gives a solid review of the history of how we came to the Navigable Waters Rule. As Lungren notes, Patagonia, a company I greatly admire, stepped into the arena and joined with Earthjustice in their lawsuit on behalf of the Pascua Yaqui Tribe, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Tohono O’odham Nation, and Fond du Lac Band of Lake Superior Chippewa.

The Lawsuit

The lawsuit challenges and seeks to vacate two final rules promulgated by the EPA and the Army Corps of Engineers. The first, “Definition of Waters of the U.S.: Recodification of Pre-Existing Rules,” repealed the 2015 “Clean Water Rule” which defined the term “waters of the United States” in the Clean Water Act. The second, “The Navigable Waters Protection Rule: Definition of Waters of the United States,” replaced the Clean Water Rule and its predecessor rules with a definition of “waters of the United States” that, according to the filing, “substantially narrows the waters protected by the Act.”

The filing states; “The Navigable Waters Rule exceeds the Agencies’ statutory authority and is contrary to the Clean Water Act’s text, structure, objectives, and legislative history requiring broad protection of all the Nation’s waters, because its provisions exclude waters from the protections required and afforded by the Act.

“The Tribes also challenge the Repeal Rule and the Navigable Waters Rule as arbitrary and capricious because both rules are contrary to the evidence before the Agencies, including vast volumes of science and technical evidence in the administrative record and the uncontroverted findings made by the EPA and its own Science Advisory Board. The Agencies also failed to explain their decision to reverse prior regulations and failed to consider important aspects of the problem, including the effects on water quality and aquatic ecosystems of stripping protections for large numbers of waters, the ecological importance of protecting the excluded waters, and the effects of the reversal on the objectives of the Clean Water Act.

“These decisions are arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act.”

Threats to our water

Since my early days, I have relied on my friends at Trout Unlimited for their analysis, leadership and advocacy. It is no different in this case.

“The E.P.A.’s new policy comes with a price tag,” Chris Wood, president and CEO of Trout Unlimited, wrote in a recent op-ed in the New York Times with National Wildlife Federation CEO Collin O’Mara and former U.S. Fish & Wildlife Service director Dale Hall.

“When the E.P.A. stops protecting these streams and wetlands, states will have to foot the bill for regulatory oversight; many states may decide not to step in at all. When developers fill in wetlands, local communities will be on the hook for cleaning up more frequent flood damage. When headwaters are polluted, cities downstream will pay to treat their drinking water.”

Check out TU’s Clean Water Rule Update: April 2020 for more details. Read, Changes to the Clean Water Rule have big impacts on the ground for a look at why the rule is bad news for those of us who love our small stream fishing.

Pebble Mine Update: What the Army Corps Did and Didn’t Do

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If you are following the saga of the proposed Pebble Mine in Bristol Bay, Alaska, you would be forgiven if you thought recent action by the U.S. Army Corps of Engineers (USACE) was the death knell for the proposed mine.

On August 24, the USACE released a letter to the Pebble Limited Partnership. The U.S. Army’s press office proclaimed, “Therefore, the Corps finds that the project, as currently proposed, cannot be permitted under section 404 of the Clean Water Act.”

In reality, the USACE essentially kicked the can down the road. The letter to the Pebble Limited Partnership informed them, “As part of the [Record of Decision] the [Alaska District of the USACE] made Clean Water Act Section 404(b) (1) factual determinations that discharges at the mine site would cause unavoidable adverse impacts to aquatic resources and, preliminarily, that those adverse impacts would result in significant degradation to those aquatic resources.” The Alaska District of the USACE determined that Pebble Limited Partnership would need mitigation measures within the Koktuli River Watershed, where the mine potentially will be located, for all direct and indirect impacts on aquatic resources caused by the mine’s discharges.

The letter went on to outline the ways those damages could be mitigated:

There are three approved mechanisms for providing compensatory mitigation, which include mitigation banks, in-lieu fee programs, and permittee-responsible mitigation with preference, in that order. Your mitigation plan may include a combination of means and mechanisms but must comply with all required components of Rule and be found sufficient to offset the unavoidable adverse impacts to the aquatic resources identified above.

Some reactions critics of the project from both sides of Capitol Hill were less than laudatory of the action. Senator Joe Manchin (D-WV) stated :

A mitigation plan to make up for unavoidable damage from the Pebble Mine is not enough. The Final Environmental Impact Statement for Pebble Mine did not assure me the pristine Bristol Bay region of Alaska, which is home to the world’s most productive salmon fishery, supports 14,000 jobs and generates $1.5 billion of revenue annually, would be sufficiently protected. I again urge the Administration to completely veto a Clean Water Act permit for this project.

Rep. Jared Huffman (D-CA) said :

Delaying the permit for the Pebble Mine is welcome news, but let’s be clear: the only reason this environmental atrocity came this close to happening is because the Trump administration is a favor factory for polluting industries. The previously rejected permit was revived and fast-tracked by this administration, and the only reason they finally hit the pause button is because – thankfully – some individuals close to President Trump made a personal appeal. We can welcome the outcome, but let’s not confuse any of this with environmental stewardship or good government.

This letter did not come as a surprise to the Pebble Limited Partnership. The company responded:

The letter we received today is a normal letter in the permitting process and we are well into an effort to present a mitigation plan to the USACE that complies with the requirements of their letter. A clear reading of the letter shows it is entirely unrelated to recent tweets about Pebble and one-sided news shows. The White House had nothing to do with the letter nor is it the show-stopper described by several in the news media over the weekend.

Now that dust has settled, let’s take a look at the facts included in the Corps’s letter, which should send chills down the spine of anyone who still thinks it is a good idea to permit this mine.

The letter tells us what is at stake:

Therefore, the District has determined that in-kind compensatory mitigation within the Koktuli River Watershed will be required to compensate for all direct and indirect impacts caused by discharges into aquatic resources at the mine site. Direct and indirect impacts at the mine site total 2,825 acres of wetlands, 132.5 acres of open waters, and 129.5 miles of streams.

The District has also determined that compensatory mitigation is required for unavoidable adverse impacts to aquatic resources from discharges associated with the transportation corridor and the port site. Direct and indirect impacts associated with the transportation corridor and port site total 460 acres of wetlands, 231.7 acres of open waters, and 55.5 miles of streams.

Let me help you with the math. Here are the totals for what’s at risk:

  • 3,285 acres of wetlands
  • 364 acres of open waters
  • 185 miles of streams

So somewhere, somehow, the Pebble Limited Partnership is going to mitigate all that damage. As they said, “We will share more details of our initial plan as they become more defined.”

They have until November 20 to do that, although they seem to think it may happen sooner. “Based on our understanding of the substance of the letter, our discussions with the state, our substantial work in the field and our discussions with the USACE we believe our final Comprehensive Management Plan submission will be submitted within weeks and will satisfy all of the requirements of the letter.”

We shall see.

Here’s the rub. Bristol Bay is unique. How will that uniqueness be mitigated? How do you mitigate the loss of the world’s best salmon run?

On August 31, a letter from Representatives Huffman and Peter DeFazio (D-OR) and signed by 31 of their colleagues to EPA administrator Andrew Wheeler, made the point, “There is no level of compensatory mitigation that would be sufficient to address the mine’s irreversible harm to the pristine environment that exists in Bristol Bay.”

The letter went on to ask “that the EPA exercise its authority under the Clean Water Act and oppose the flawed Environmental Impact Statement.”

Let’s hope the administration comes to realize that, as the late Senator Ted Stevens of Alaska said, “This is the wrong mine in the wrong place,” and vetoes the Clean Water Act permit. If the USACE and Environmental Protection Agency don’t see the light, hopeful Congress will make them feel the heat.

UPDATE (Oct 30, 2020): Tim Sohn writing in Outside Online, gives a terrific, recap, analysis and update on the state of play in Bristol Bay.
https://www.outsideonline.com/2418304/pebble-mine-tapes-election-explainer.

Your comments questions and other witty repartee are welcome around the Campfire.

Note: This article (pre update) originally appeared on the Marine Fish Conservation Network’s From the Waterfront blog.

Water is my business

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As a fly fishing guide,  a member of the board of directors of the America Fly Fishing Trade Association and president of the Massanutten Chapter of Trout Unlimited, I spend a lot of time thinking about water. The fact is, I make part of my living in water and without it much of what I hold dear would be lost.

Lately I have found myself drawn back into conversations about clean water and the need to protect it. EPA has a rule making underway and there are some who would like to undermine that effort. In looking around the inter webs recently, I came across an excellent report from Trout Unlimited. Rising to the Challenge shows just how important small, seasonal and headwater streams are and why they need to be protected.

TU shares a pretty simple equation (not unlike one you see often on this blog) and points out three things that make a healthy stream.

  • Cold, clean water
  • Habitat for juvenile fish to hide, and for big fish to grown and spawn
  • Sensible rules that protect streams from development

Pretty simple Venn diagram if you ask me.

The report shows “the connection between seasonal streams that may run dry at certain times of the year (i.e., “intermittent and ephemeral” streams) and historic trout and salmon habitat.”

There are maps for 14 states, including Virginia below:

TU VA WOTUS Map

 

Download the report and learn how you can make water your business too.

If you want to learn more about EPA’s rule making here is a link > http://www2.epa.gov/uswaters

Here is some information from the Theodore Roosevelt Conservation Partnership > http://www.trcp.org/issues/wetlands/cleanwateract#.VDHMnr51qaF

 

 

EPA’s Draft Watershed Assessment for Bristol Bay

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Hard work pays off.

The folks at TU’s Save Bristol Bay campaign and Sportsmen’s Alliance for Alaska deserve some serious congratulations. Because of their efforts the a critical milestone in the efforts to protect Bristol Bay has been reached. On May 18, the U.S. Environmental Protection Agency put out a draft scientific study of the Bristol Bay watershedand its natural resources. The study is open for public comment through July 23, 2012. Scott Hed and Shoren Brown (below) in particular have been tireless in their efforts to get us to this point and have earned a round of applause at the very least and a round of drinks next time you see them.

These guys have reason to smile

Forewarned is Forearmed

EPA has taken an important step and deserves credit for being pro-active in doing this forward-looking assessment. Knowing what the potential challenges of a project this size could be and the ecological and economic impacts it could have, allows EPA and those who have an interest in Bristol Bay to be much better informed when it comes to siting mining or other extraction projects in the region.

 Sportsmen in particular have written, spoken out and shown their concerns about the impact a large-scale mining operation could have on the Bristol Bay watershed.

What the DRAFT Watershed Assessment says

Here is what EPA wrote in their press release:

“The report assesses the watershed’s natural resources and the economic benefits associated with those resources, including the largest undisturbed wild sockeye salmon run in the world. EPA’s draft study does not provide an in-depth assessment of any specific mining project, but instead assesses the potential environmental impacts associated with mining activities at a scale and with the characteristics that are realistically anticipated, given the nature of mineral deposits in the watershed, the requirements for successful mining development, and publicly available information about potential mining activity. The report concludes that there is potential for certain activities associated with large-scale mining to have adverse impacts on the productivity and sustainability of the salmon fishery in the watershed. Potential impacts could include loss of habitat used for salmon spawning and rearing. The assessment, when finalized following the important public comment and independent peer review, could help inform future decisions on any large-scale mining in Bristol Bay by both federal and non-federal decision-makers.
The draft assessment focused on the Nushagak and Kvichak watersheds, which produce up to half of all Bristol Bay salmon and are open to mining development under Alaska law.

Key findings in EPA’s draft assessment include:

  • All five species of North American Pacific salmon are found in Bristol Bay. The Bristol Bay watershed supports the largest sockeye salmon fishery in the world. The Kvichak River produces more sockeye salmon than any other river in the world. The Nushagak River is the fourth largest producer of Chinook salmon in North America.
  • Bristol Bay’s wild salmon fishery and other ecological resources provide at least 14,000 full and part-time jobs and is valued at about $480 million annually.
  • The average annual run of sockeye salmon is about 37.5 million fish.
  • Bristol Bay provides habitat for numerous animal species, including 35 fish species, more than 190 bird species and 40 animal species.

EPA also examined the importance of Bristol Bay salmon in sustaining the traditional subsistence lifestyle of Alaska Native Villages in the watershed. The assessment includes detailed reports on Bristol Bay indigenous culture, wildlife and economics, as well as salmon and other fish.

TU’s Save Bristol Bay campaign website adds this:

“Even at its minimum size, mining the Pebble deposit would eliminate or block 55 to 87 miles of salmon streams and at least 2500 acres of wetlands – key habitat for sockeye and other fishes. EPA evaluated four types of large-scale mine failures, and found that even though precise estimates of failure probabilities cannot be made, evidence from other large mines suggest that “at least one or more accidents of failures could occur, potentially resulting in immediate, severe impacts on salmon and detrimental, long-term impacts on salmon habitat.”

What it means for Bristol Bay

This DRAFT assessment is a good first step. There is still a lot of work to be done however. EPA’s assessment is scientific and technical. It is not final, takes no regulatory action and “no way prejudges future consideration of proposed mining activities.”

Unless significant changes to the assessment are justified during the public comment and peer review period, EPA should take the next step and initiate a process under the Clean Water Act to protect Bristol Bay’s waters.

Please add your voice in support of protections for Bristol Bay; Click here to take action.

For information on public meetings and how to submit comments, visit EPA’s website:http://www.epa.gov/region10/bristolbay/.

For more information on EPA’s Bristol Bay Watershed Assessment and to read the assessment, visit:http://www.epa.gov/region10/bristolbay/

At the White House Conference on Conservation

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I put my AFFTA hat on last Friday to participate in the White House Conference on Conservation. The conference was excellent and while I often grouse about having to “go to DC” this was time well spent.

The theme for the conference was “Growing America’s Outdoor Heritage and Economy.” A theme that is near and dear to our heart here at Dispatches. The drum beat of “habitat equals opportunity equals economic activity” is getting louder and I couldn’t be happier. It is to the great credit that the Administration, especially the Department of Interior, is championing the economic value of the conservation and outdoor recreation.

America’s Great Outdoors

The conference was part of the on-going America’s Great Outdoors initiative. The “on-going” is important to note. Since the Obama Administration rolled AGO out under the capable guidance of Interior Secretary Ken Salazar and his team, they have kept stakeholders and the public informed and engaged. This conference was the latest example.

The purpose of the conference was to “engage directly with conservation leaders from all 50 states to strengthen partnerships and identify next steps in advancing community-driven conservation and outdoor recreation initiatives that are building strong local economies and healthy lands, waters and wildlife across America.

Joining Salazar at the conference were Nancy Sutley, Chair of the White House Council on Environmental Quality, Agriculture Secretary Tom Vilsack, Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy and EPA Administrator Lisa Jackson. Each participated in panel discussions to help frame the discussions in breakout sessions later in the day.

The three panels during the conference were (the links take you to videos of the panels):

Each panel was moderated by an administration official with remarks from folks who have experience or involvement in the subject areas. Of special note was Dave Perkins Vice-Chairman of the Orvis Company. Perkins was part of the Restoring Rivers panel and did a great job in connecting the dots to the economic contributions of river recreation and restoration. Having a major player from the fly-fishing industry was important recognition of both the economic and conservation contributions the industry makes.

The capstone to the day came with remarks from President Obama. Having the President come to Interior underscores the importance the administration puts on conservation and the impact of the recreational economy.

Focusing on specifics

In order for folks to talk about specific interests there were 11 breakout sessions:

  • Tourism and Outdoor Recreation
  • Coastal Conservation
  • Access: Recreation / Hunting & Fishing
  • Large Landscape Conservation
  • Urban Open Space
  • Rivers Restoration and Recreation
  • Youth and Outdoor Education
  • The 21st Century Service Conservation Corps, Youth Corps and Veterans Jobs
  • Historic and Cultural Preservation and Sacred Tribal Places
  • Public Lands Management and Conservation
  • National Park Second Century

These breakout sessions were used to learn from stakeholders what was working in the AGO initiative and more importantly what needed to be done.

I attended the Rivers Restoration and Recreation session moderated by Rock Salt from the Dept. of the Army (Civil Works) and Rebecca Wodder from Interior.

Wodder framed the discussion by asking, when it came to rivers, what works and what needs work.

National Water Trails

Earlier in the week, Salazar had signed a Secretarial Order establishing a National Water Trails system under the National Trails System Act.

“The order sets the framework for Secretarial designation of water trails that will help facilitate outdoor recreation on waterways in and around urban areas, and provide national recognition and resources to existing, local water trails.”

Many in the room pointed to the new National Water Trails as an important step forward and one that has great potential to provide stakeholders a way to promote water-based outdoor recreation, encourage community stewardship of local waterways, and promote tourism that fuels local economies across America.

From AFFTA’s perspective, this is a great opportunity. It really is very simple, rivers are our business, they are the principal venues for our customers and clients. There is an indisputable nexus between the health of a river and its viability as a recreational resource.

I used the case of the Colorado River and its tributaries as an example. It was one the Secretary was familiar: “It’s a mecca of economic development in outdoor recreation, and that needs to be recognized in how we manage the Colorado River System.”   I encouraged them to remind Secretary Salazar and Asst Secretary Darcy to keep those economic impacts in mind when making decisions that affect water supply and quality.

I know that my AFFTA colleagues will welcome the chance to work on making the new National Water Trails system a recreational and economic success.

National Fish Habitat Partnership

Salazar also announced that is working with the Secretary Vilsack and Commerce Secretary John Bryson on a Memorandum of Agreement to ensure that Federal resources are effectively focused in support of the collaborative conservation efforts of the National Fish Habitat Partnership.

The National Fish Habitat Partnerships provide local, public-private conservation partnerships that are the foundation of the three part equation, “Habitat = Recreational Opportunity = Economic Activity, which so important to AFFTA. Healthy habitat and clean water create the venues for AFFTA member’s customers and clients.

The National Fish Habitat Action Plan and the National Fish Habitat Partnership are strongly supported by AFFTA and this announcement that an agreement is in the works is excellent news. This is an important step to having our federal partners work together to insure the success of the partnerships and the important work they do.

As a member of the steering committee of the Eastern Brook Trout Joint Venture, one of the 18 National Fish Habitat Partnerships, I know that a well coordinated effort with the various federal agencies can only help the EBTJV continue its successful efforts to ensure healthy, fishable brook trout populations throughout its historic range.

As someone who is often cynical about the value of these types of get togethers, this one was a winner. Sure there is more to be done but the America’s Great Outdoors initiative has been a lot more than rhetoric. The President has shown his support, traveling to the Department of Interior twice and hosting a gathering at the White House. There are AGO projects in 50 states.

Now with this engagement on rivers and fish habitat there is a new opportunity for anglers and the sport fishing industry. That can only be a good thing.

Clear the Air, Save a Brook Trout

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“This is good news and real evidence for the value of our national investment in improving air quality,” said Rick Webb, a U.Va. environmental scientist and coordinator of the VTSSS. “At the same time, there is more to be done, and many Virginia brook trout streams may never fully recover.”

what clean air can do...

That quote comes from an article I wrote for Orvis News. Webb was referring to some encouraging news in Virginia showing that water quality has clearly improved since 2000 and how the Clean Air Act’s investment in air quality improvement was working. He noted sulfur dioxide emissions from coal-fired power plants dropped by 64 percent between 1990 and 2009.

Yesterday the U.S. Environmental Protection Agency took another step toward cleaner air and if history repeats itself, as it is likely to do, then some of the “more is to be done,” that Webb refers to may actually get done.

The U.S. EPA issued the Mercury and Air Toxics Standards. These court ordered standards will reduce emissions of mercury and toxic air pollution like arsenic, acid gas, nickel, selenium, and cyanide by relying on widely available pollution controls already in use at more than half of the nation’s coal-fired power plants.

“Since 1959, TU volunteers and staff have worked to protect and restore trout watersheds throughout the nation, and we’ve come to realize that fish-trout in particular-are barometers for both air and water quality,” said Steve Moyer, TU’s vice president of government affairs. “Along the Eastern Seaboard, we’ve had to react to pollutants in the air that eventually find their way into the water. For instance, eastern brook trout in some Appalachian mountain watersheds are particularly susceptible to pollution that alters the natural chemical balance in their native streams. In order to keep some populations from winking out altogether, we’ve had to resort to unusual tactics to keep these fish alive, including adding lime to some streams to restore the water’s chemical equilibrium.”

Of course not only brook trout will benefit. Dirty air means dirty water. Fish and organisms that depend on clean water suffer. Mercury builds up in fish to a point where it is no longer safe to eat them. Birds and mammals that eat fish and insects can all be exposed to high levels of mercury. They wind up behaving abnormally and have less breeding success.

When I worked for the Izaak Walton League, air pollution was a key focus area. The IWLA has been working for 10 years to try and get these standards in place.

“We applaud EPA for taking this step to protect public health and the environment,” says Nancy Lange, Director of the Izaak Walton League’s Energy Program. “This standard is long overdue, and the American people have been paying the price with their health. More than half our nation’s coal-fired power plants have already upgraded their facilities to scrub mercury out of their emissions. It’s time for the rest to follow suit.”

According to the EPA, power plants are the largest remaining source of several toxic air pollutants and are responsible for half of the mercury and over 75 percent of the acid gas emissions in the United States.

“By cutting emissions that are linked to developmental disorders and respiratory illnesses like asthma, these standards represent a major victory for clean air and public health– and especially for the health of our children. With these standards that were two decades in the making, EPA is rounding out a year of incredible progress on clean air in America with another action that will benefit the American people for years to come,” said EPA Administrator Lisa P. Jackson. “The Mercury and Air Toxics Standards will protect millions of families and children from harmful and costly air pollution and provide the American people with health benefits that far outweigh the costs of compliance.”

Clean air and water should be something we can count on in this country. EPA has put in place a responsible, workable and politically courageous plan to improve the quality of our air and water. Administrator Lisa Jackson and her team deserve to be congratulated.