What “waters” are protected by federal law? Plus other news, this week in CIB:
Washington Watch: Clearing the “Waters”
One of the most critical questions in clean water law is the most basic: What is a protected “water”? The answer is not as simple as you’d think, and has been fought over in the state and federal courts for decades. Last week, the U.S. Environmental Protection Agency (EPA) released its latest effort to clarify the answer to this question: What is a “water of the United States”?
Literally years in the making, this rulemaking responds to U.S Supreme Court decisions in 2001 and 2006 which muddied long-standing interpretations of what constitutes a “water” protected under the federal Clean Water Act and associated rules and state laws. The Court’s rulings called into question the scope of federal jurisdiction over some wetlands, intermittent streams, and other surface waters without direct visible connections to larger “navigable” water bodies.
Ecologically, the so-called isolated wetlands and headwater streams often provide the most significant aquatic wildlife habitat, as well as invaluable filtration functions to control pollution from stormwater runoff. Historically, they are also the waters and wetlands most vulnerable to destruction from development and other human activities.
According to the EPA, the proposed clarified rules do not expand the areas of protection beyond historical interpretations of the Clean Water Act’s scope, and are in keeping with the Supreme Court’s rulings. However, said EPA Administrator Gina McCarthy, “We are clarifying protection for the upstream waters that are absolutely vital to downstream communities.” She cited water supply, recreation and fishing, and agricultural uses as among the values protected.
In its news release, EPA particularly noted that the rulemaking addresses protection of the 60 percent of stream miles in the U.S. which “only flow seasonally or after rain, but have a considerable impact on the downstream waters.” According to the EPA:
- Most seasonal and rain-dependent streams are protected.
- Wetlands near rivers and streams are protected.
- Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant.
The proposed rulemaking released last week also requests comment on options for protecting “similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.”
The complete EPA news release and links to further information can be found here.
Immediate reaction from environmental observers was positive.
Tim Gestwicki, CEO of the N.C. Wildlife Federation, said “This is a huge step forward for protecting our waters and wildlife. We simply cannot protect our rivers, lakes, and bays without protecting the many small streams and wetlands that feed into them. The proposal clarifies which waters are—and which are not—protected by the Clean Water Act. It will protect many streams and wetlands that are currently in legal limbo. The rule also specifically excludes many man-made ditches, ponds, and irrigation systems and honors the law’s current exemptions for normal farming, ranching, and forestry practices. From mountain trout anglers, to piedmont bass enthusiasts and duck hunters in eastern NC, this is a critical step towards protecting our sporting heritage and our outdoor future.” More here.
Peter Lehner, executive director of the Natural Resources Defense Council, called it “good news for boaters, anglers, swimmers and families who rely on clean drinking water. EPA took an important step to finally rescue these waters from legal limbo. Even though these are common-sense protections, the polluters are sure to attack them. People who care about clean water need to make their voices heard in the comment period.” More comments from Lehner can be found here.
Environomics: Angry Major Shareholders Press Duke
An accepted truism of life is that “money talks” – and that’s particularly the case when talking to a for-profit corporation. Thus, it’s especially significant news this week that more than 20 major institutional stockholders in Duke Energy are demanding better answers to the questions swirling around Duke’s handling of coal ash pits and pollution from them.
Organized by the Nathan Cummings Foundation, the investors wrote to the Duke Board of Directors, seeking “an independent internal investigation into the circumstances surrounding the February [Dan River] spill, including whether adequate policies and procedures are in place within the company and at the board level to prevent future spills.” The letter cites concerns about “the severity of the Dan River spill, Duke’s purported violations of numerous regulations, the issuance of federal subpoenas, and the lack of clarity of clean up costs and future storage plans for coal ash” and seeks information as well on “[l]egislative lobbying and political activities regarding regulatory and enforcement efforts at the company’s coal ash facilities.”
Part of what makes this letter real news is that it comes not from activists holding a handful of shares, but from truly major institutional investors which have bought into Duke in a major way as a part of their organizations’ investment portfolios. They include the California State Teachers’ Retirement System, the Illinois State Board of Investment, and the state treasurers of Connecticut, Oregon, and Pennsylvania. Not even the board of the nation’s largest power company can just blow off the combined interests of that level of investment.
In the announcing news release, Oregon State Treasurer Ted Wheeler, a member of the Oregon Investment Council, said, “In the wake of this catastrophic spill, shareholders including the Oregon Public Employees Retirement Fund are demanding answers and action. As the owners of public corporations, shareholders expect companies to do business the right way, which will bolster public confidence, sustain the environment, and enhance long-term share value.” The entire news release, including the list of signatories and other details, can be found here.
Press coverage of this development also notes that “the letter comes as North Carolina’s environmental agency was forced to admit state inspectors twice missed a large crack in an earthen dike holding back millions of tons of ash at a different Duke facility near the Cape Fear River.” (Associated Press, 3/27/14.) One can hardly blame major Duke investors from worrying about the impacts of possible future revelations of politically-arranged blindness in the regulation of Duke’s coal ash pollution.
Around the Globe: Air Pollution Killing Seven Million Annually
The World Health Organization (WHO) last week released new estimates that air pollution worldwide is killing seven million people a year. According to WHO reports from the most recent year available (2012), air pollution is now “the world’s largest single environmental health risk.” The organization declares, “Reducing air pollution could save millions of lives.” (The figures include mortality associated with both outdoor and indoor air pollution.)
The mortality figures represent pollution-related deaths from heart disease, stroke, chronic obstructive pulmonary disease (COPD), lung cancer, and acute lower respiratory infections in children. According to Dr. Maria Neira, Director of WHO’s Department for Public Health, Environmental and Social Determinants of Health, “The risks from air pollution are now far greater than previously thought or understood, particularly for heart disease and strokes. Few risks have a greater impact on global health today than air pollution; the evidence signals the need for concerted action to clean up the air we all breathe.”
Further details and links to related reports can be found here.
Education & Resources: Econews from a Municipal Viewpoint
Cities and towns can be important allies for conservation advocates at the N.C. General Assembly – and when they’re not, local citizens can often educate and influence them more readily than state-level officeholders. How do you know when to try?
Here’s one possible resource: N.C. League of Municipalities’ (NCLM) electronic bulletin EcoLINC. It provides updates on environmental issues of greatest interest to municipal governments in our state, along with the status of related state legislation and rulemakings.
For example, the 3/18/14 edition addresses the status of proposed legislation to limit cities’ authority to protect clean water and public health (where cities are allies of conservationists), the ongoing efforts to weaken Jordan Lake cleanup requirements (where some cities are working against conservation advocates), and other issues like stormwater control standards (where the shades can be gray).
Conservationists: Green Tie Sponsorship Opportunities
NCLCV is seeking additional sponsors for the annual Green Tie Awards Dinner this May 27. At the dinner, NCLCV will recognize outstanding North Carolina state legislators and other leaders of the year for their contributions to the quality of our state’s environment. U.S. Sen. Kay Hagan is this year’s keynote speaker. For more information on tickets and sponsorship opportunities for the event, see nclcv.org/green-tie2014.
That’s our report for this week.
