EPA Looks into Los Angeles Gas Leak

The Swamp Stomp

Volume 16, Issue 2

The EPA opened an investigation into a natural gas leak from an underground pipe in Los Angeles. ABC News reported that the company responsible, Southern California Gas Company, knew about the leak as far back as October 23.

Residents of the Porter Ranch neighborhood have complained about feeling nausea, dizziness and headaches as a result of the smell of the mercaptan used to signal a leak. The California Air Resources Board estimated that 1,200 tons of the natural gas is entering the air every day.

“It’s very scary and you know don’t know what the long-term effects are going to be,” Porter Ranch resident Laurie Cherny said.

The company sated that although some people may be sensitive to the mercaptan, the leak itself did not pose a threat to public safety, as the well is located a mile away from and 1,200 feet higher than the closest home.

The Los Angeles City Attorney, as well as some residents of the area, have filed a lawsuit against the gas company, according to ABC News. Lawyers for some of  the residents released an infrared video that appears to show large amounts of methane in the gas cloud over the area.

On December 18, the EPA sent an information request to SoCal Gas. EPA officials are now working with state and local regulators to find a way to stop the leak. A letter from the EPA said the agency is standing by and ready to help in any way it can if requested as a result of the investigation.

In response, SoCal Gas has been withdrawing gas at twice its normal rate for several weeks from the Aliso Canyon Facility, where the pipe is located. Spokeswoman Anne Silva said this will lower the pressure pushing gas through the leak.

“As a result of these withdrawals, which are metered, the reservoir has gone from being 93 percent full, before the leak, to at most 58 percent full, ” Silva said.

On December 28, officials from SoCal Gas said they had found the leak and were in the process of fixing it. The process could take until late February to complete. So far the company has placed over 2,200 families into temporary housing while another 3,000 are in the process of relocation, reported ABC News.

“We understand the leak has created concerns, heightened awareness and public urgency,” the company said. “SoCal Gas has the same urgency and our highest priority is to safely stop the leak as quickly as safety will allow, support the affected customers, and reduce the amount of natural gas emitting into the environment during this unfortunate situation.”

Sources:

http://abcnews.go.com/Health/epa-probes-porter-ranch-natural-gas-leak/story?id=36052183

http://abcnews.go.com/Health/lawsuit-alleges-huge-release-methane-poses-threat-los/story?id=35676695

http://www.dailynews.com/environment-and-nature/20151229/epa-opens-probe-into-porter-ranch-gas-leak

Waters of the U.S. Rule to Go to Supreme Court

The Swamp Stomp

Volume 15, Issue 50

On December 8, a federal appeals court judge said the Waters of the U.S. rule will go to the Supreme Court to be challenged eventually, reported KTIC Radio. How long that takes depends on a number of factors.

The U.S. Sixth Circuit Court of Appeals has to decide whether it wants to consolidate the cases so they can move to the Supreme Court directly, or it can give the lead to the individual federal district courts where the cases are playing out. The state attorney generals who initially sued in these cases would prefer the latter option, as it would allow for more scrutiny by multiple judges. The Obama administration was in favor of consolidating the cases, arguing that it would prevent duplicate rulings and save time and money, KTIC Radio reported.

The Sixth Circuit Court heard oral arguments on December 8 about its jurisdiction to rule on the many cases filed against the Waters of the United States Rule. Members of both sides of the argument voiced their concerns and opinions on how to precede with the cases, which also determines how quickly the rule arrives at the Supreme Court.

“We’re not asking the court to read this case any more broadly than we have all of the other cases that have preceded it,” Martha Mann, a U.S. Department of Justice attorney arguing the case for the EPA and the U.S. Army Corps of Engineers, said. “EPA has time and again gone to circuit courts and said you do not have jurisdiction.”

The court asked the suing states if they were looking for multiple definitions of what constitutes “waters of the united States” by asking the rulings to be played out in separate courts. Eric Murphy, state solicitor for the state of Ohio, replied with a firm “No.” Murphy believed the cases should be played out in the district courts and then eventually work their way up to the Supreme Court.

“I dispute the notion that the jurisdiction should be in this court out of concerns about national uniformity,” Murphy said.

The rule, which has led to thirteen states suing the EPA over its conditions, has come under fire recently due to what many perceive as a loose definition of what constitutes “waters of the United States.” Those against the rule argue that the criteria in the rule could give federal jurisdiction over the smallest of waterways and lead to an overstep by the government. However, the EPA has repeatedly stated that the rule is meant to solidify the definition rather than expand it.

The rule will most likely have to go all the way to the Supreme Court for a final verdict on its legality. According to KTIC Radio, the court itself gave no indication as to where it stood during the oral arguments.

Sources:

http://kticradio.com/agricultural/waters-of-the-u-s-rule-may-go-to-supreme-court/

 

Spotted Turtle One of 10 Species with “No Room to Roam”

The Swamp Stomp

Volume 15, Issue 49

The spotted turtle was listed in the Endangered Species Coalition’s “No Room to Roam” report, released on November 18. The annual report lists 10 species in the United States that are the most threatened by habitat fragmentation.

The report, titled “No Room to Roam: 10 American Species in Need of Connectivity and Corridors”, highlighted 10 species whose habitats have broken up to the point where there are very few safe, navigable corridors for the species to move between habitats or connect with other populations. Other species in the report included the pallid sturgeon and the smiling California tiger salamander.

The report said spotted turtles needs to visit several types of habitats to mate, nest, forage and carry out other survival activities throughout the year. According to the Center for Biological Diversity, spotted turtles need clear, clean water, a soft substrate and aquatic or emergent vegetation to live. The destruction of habitats and the breakup of those habitats that still exist has made the wandering nature of the species a hazard to its own survival.

Photo Credit: M. Rubboso, NYDEC
Photo Credit: M. Rubboso, NYDEC

 

According to the report, the once large population of spotted turtles has declined by 50 percent. It pointed out cars as a major force in this reduction. Female spotted turtles on their way to nesting sites are often hit by cars, killing both the turtle and the potential for more.

“We must stop the destruction and isolation of their habitats now before we lose this beautiful little turtle to extinction,” Collette Adkins, an attorney for the Center for Biological Diversity, said.

The center petitioned the U.S. Fish and Wildlife in 2012 to add the spotted turtle to the list of endangered species and protect it under the Endangered Species Act. Although a final decision has not been made, the petition received an initial “positive finding” in June of this year.

According to the report, the species is protected in Canada under their Species at Risk Act. Several U.S. states also protect the spotted turtle under their own laws.

One way the report suggested helping the spotted turtle out is by building special underpasses underneath highways and railroads. These would give the turtles a safe passageway through which to travel between habitats. Another way would be to simply be on the lookout for turtles crossing the road in May and June, when female turtles go looking for nesting sites.

According to the New York State Department of Environmental Conservation, spotted turtles reside mainly in the eastern United States and around the Great Lakes area. They measure from 3.5 to 5 inches in length and eat snails, slugs, worms and spiders. They are most easily distinguished by their yellow spots on their heads, necks and legs.

Sources:

No Room to Roam

http://www.biologicaldiversity.org/news/press_releases/2015/spotted-turtle-11-18-2015.html

http://www.dec.ny.gov/animals/7150.html

Endangered Frogs Come to Denver Zoo

The Swamp Stomp

Volume 15, Issue 48

The Denver Zoo announced that Lake Titicaca frogs arrived at the zoo on November 18. Lake Titicaca frogs are classified as “critically endangered” by the International Union for the Conservation of Nature (IUCN) and currently reside nowhere else in the northern hemisphere.

The move is part of an attempt to save the species, reported CBS Denver. By studying the frogs’ behavior, the zoo hopes to find a way to increase the population of these frogs in the world.

Photo Credit: The Denver Zoo
Photo Credit: The Denver Zoo

Lake Titicaca frogs are the largest aquatic frog in the world, measuring up to 20 inches long and sometimes weighing more than 2 pounds. The frogs only live in Lake Titicaca, which lies across the Peruvian-Bolivian border.

One of the most interesting features if the species is the ability to remain underwater for an indefinite period of time. The frogs have a large amount of saggy skin that they absorb oxygen and breathe through while underwater.

“Denver Zoo has been working with our Peruvian and Bolivia partners to conserve the Lake Titicaca frogs since 2007 and is excited to bring these individuals to Denver,” Brian Aucone,  Senior Vice President for Animal Care and Conservation at the Denver Zoo, said.

Lake Titicaca frogs have not been in the United States for more than 40 years, according to officials at the zoo. The 20 frogs that the Denver Zoo received hatched in March at the Huachipa Zoo in Lima, Peru.  According to CBS Denver, the tadpoles came from wild frogs that were confiscated by authorities while going to a food market.

Although it is illegal to harvest the frog due to its endangered status, some local Peruvians and Bolivians make the frogs into shake-like drinks. These drinks are supposed to stimulate virility.

The IUCN said the population of Lake Titicaca frogs has declined by 80 percent over the last three generations. The Denver Post said that this conservation effort is the latest of many for the frogs.

“We hope to raise awareness of the plight of these amphibians while also gaining important insight into the care of this species,” Aucone said.

Before going to public view, the frogs will spend three months in a required quarantine, reported CBS Denver. After that, those visiting the zoo will be able to see the frogs in the Tropical Discovery exhibit.

Sources:

Critically Endangered Frogs Found Only In Lake Titicaca Arrive At Denver Zoo

http://www.denverpost.com/news/ci_29166476/endangered-lake-titicaca-frogs-land-at-denver-zoo

 

Water Rule Under GOP Fire in the Senate

The Swamp Stomp

Volume 15, Issue 47

The GOP has launched an effort in the Senate to repeal the “Waters of the United States Rule”in the Clean Water Act. On November 3, a GOP-backed bill sought to repeal the rule and was shot down. This was followed the next day by another bill that sought to make the rule have “no force or effect, according to Farm & Dairy.

The Wall Street Journal reported that 57 senators voted for the November 3 repeal attempt, just 3 votes shy of the required 60 needed to start debate on a bill. Every Republican senator voted for the bill, along with four Democrats.

According to The Hill, the bill was called the Federal Water Quality Protection Act. Its supporters argued that their bill would have achieved the EPA’s goal of protecting navigable waters while making a distinction between state and federal waters.

“It is possible to have reasonable regulations to help preserve our waterways while respecting the difference between state waters and federal waters,” Sen. John Barrasso, a Wyoming Republican, said.

The bill’s supporters have also argued that the rule would give the EPA an enormous reach over what can be considered navigable waters, according to the Wall Street Journal. They said that this could create difficulties and confusion for many farmers as well.

“If you’re looking for an excuse to extend the reach of the federal bureaucracy as widely and intrusively as possible, why not just issue a regulation giving bureaucrats dominion over land that has touched a pothole, or a ditch, or a puddle at some point?” said Senate Majority Leader Mitch McConnell.

Critics of the bill argued that it missed the point of the rule it was trying to change, reported The Hill. They also saw the bill as a step back into a less regulated time.

“What this [bill] would do today is takes us back…to the day when rivers caught on fire,” said Sen. Barbara Boxer, a California Democrat.

The Obama administration had also threatened to veto the bill, should it have passed, according to The Hill. In a defense of the Waters of the United States rule, the Obama administration said that the new bill would make it so any new rules about water jurisdiction would have to be written in a way inconsistent with the Clean Water Act.

On November 4, Senator Joni Ernst, an Iowa Republican, introduced Senate Joint Resolution 22, reported Farm and Dairy. The resolution passed 53-44 and needs to pass in the House before going into effect.

Ernst called the rule ill-conceived and stated that it threatens the livelihood of many people across the country, according to Farm & Dairy. Farmers, farmer groups and the American Farm Bureau Federation have already expressed concern over the vague wording of the rule and possible overreach by the EPA. The EPA, however, has stated that the rule merely clarifies existing rules and will not have an effect on what it considers “normal”farming practices.

Since the passage of the new bill in the Senate, other farming organizations have expressed their support of a repeal attempt. According to Hoosier Ag Today, these groups include the Indiana Farm Bureau, the National Corn Growers Association and the National Cattlemen’s Beef Association.

“America’s cattlemen and women are drowning in federal regulation that adds burdens, costs and uncertainty to our businesses,” said Phillip Ellis, president of the National Cattlemen’s Beef Association. “The WOTUS regulation is the greatest overreach yet. If allowed to take effect, it would give EPA jurisdiction over millions of acres of state and private property.”

According to the Wall Street Journal, the rule would put about 3% more waterways under federal jurisdiction. The EPA claims that the rule is necessary to clarify which waters are under federal rule. The EPA also said that farmers would not need a permit due to an existing exemption.

The water rule was supposed to go into effect earlier this year, according to the Wall Street Journal. However, a U.S. appeals court blocked the implementation of the rule in October. Several states have been preparing legal challenges to that decision in the interim.

GE Gets OK from EPA to Shut Down Cleanup Plant on the Hudson River

The Swamp Stomp

Volume 15, Issue 46

The EPA on November 12 approved the shut down of a General Electric Co. PCB cleanup plant that has been treating polluted sediment dredged from the Hudson River for 6 years, according to WAMC Northeast Public Radio.

The shut down of the plant is the one of the final steps before the EPA can declare GE’s dredging of the Hudson is completed, according to the Wall Street Journal. The plant was used to treat sediment that had been polluted with polychlorinated biphenyls (PCBs) that GE had dumped into the river for more than 40 years.

The EPA stated that PCBs were banned in 1979, and that they “have been demonstrated to cause cancer, as well as a variety of other adverse health effects on the immune system, reproductive system, nervous system and endocrine system.” They were widely used in manufacturing from 1929 until the ban.

According to WAMC, the dredging project took place over a 40-mile section of the Hudson River, north of Albany. The plant itself covered 110 acres.

WAMC stated that backfilling the dredged areas had already been completed. All dredged material is expected to be taken off site by the end of the year.

Critics of the EPA’s approval voiced concerns about future dredging prospects, according to the Wall Street Journal. They said that the plant could be used to treat sediment from other dredging operations along the Hudson. However, the EPA stated that “no such opportunity is imminent.”

Some of these critics were the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration, the Wall Street Journal reported. Both organizations were against the plant shutting down because they believed more dredging was needed to meet the EPA’s goals for decontaminating the river.

WAMC reported that some of the infrastructure from the plant may remain in place. It is expected that some buildings, asphalt and concrete roads and surfaces, the wharf and the rail yard will remain. What will be left will depend on discussions between GE, the EPA and the surrounding property owners and municipalities. Soil sampling and the ability to decontaminate these structures will also play a large part in what stays.

The EPA said that it will be decades until PCB levels in the Hudson will be low enough for humans to eat fish from the river. Although the project is far from over, both GE and the EPA have called the dredging project a success. GE still has to conduct a $20 million study on how to restore 6,000 acres of land on the banks of the Hudson that were also contaminated by their PCBs.

Study Finds EPA Responsible for Toxic Wastewater Spill in Colorado

The Swamp Stomp

Volume 15, Issue 45

A report by the Interior Department found that the EPA lacked the expertise to carry out a project that resulted in the spilling of 3 million gallons of wastewater into the Colorado River. The report, released on October 22, found that the EPA was aware of the dangers of carrying out the project for more than a year before the spill happened, CNN reported.

On August 5, workers attempting to drain and contain toxic water seeping from an abandoned mine in the Colorado Rockies caused a blowout that polluted the Colorado River and nearby waterways with lead, arsenic, cadmium, beryllium and mercury. CNN reported that the spill “temporarily turned the Animas River a shade of yellow-orange”.  Although the EPA officials said levels of these metals have gone back to normal, some experts claim the heavy metals have simply sunk to the bottom of the rivers.

The report outlined several failures by the EPA at the site in addition to the actual spill. These included a lack of analysis on downstream consequences if there was a failure, failure to analyze the geologic and hydrologic conditions of the general area and a lack of understanding that water behind a blocked mine opening can create hydraulic forces similar to those found behind a dam.

The report stated that the EPA has guidelines for how to conduct environmental sampling, waste characterization and water treatment in abandoned mines.  However, the report also stated that these guidelines have “little appreciation for the engineering complexity of some abandoned mine projects that often require, but do not receive, a significant level of expertise.”

According to the New York Times, the accident happened when the EPA, with the Department of Natural Resources, pushed a pipe horizontally through the top of a plug holding back the toxic water. The Interior Department’s report said the better alternative would have been to drill a hole from the top first. This would have allowed the EPA to see whether or not pressure needed to be relieved on the plug before placing the pipe. The EPA countered that drilling would have been to costly and slow in its own review in August.

In June 2014, the contractor working on the project, Environmental Restoration, warned the EPA that working on the mine might lead to a blowout of wastewater containing toxic metals, CNN reported. New documents show that Environmental Restoration warned the EPA again in May 2015.

This report may not be the end of the EPA’s woes, however. According to CNN, attorneys general in New Mexico, Utah and Colorado have suggested they may sue the EPA, either individually, or as a group.

Sources:

http://www.cnn.com/2015/08/22/us/animas-river-colorado-epa-mine-spill/

http://www.washingtonexaminer.com/federal-investigation-blames-epa-for-toxic-spill/article/2574710?custom_click=rss

Petition to EPA Could Force Wisconsin to Take Action on Clean Water Act

The Swamp Stomp

Volume 15, Issue 44

Sixteen Wisconsin residents filed a petition on October 20th that could strip away the state’s authority over its waters, according to the Lacrosse Tribune. The 87-page petition accused the Wisconsin Department of Natural Resources of not following the federal standards set out in the Clean Water Act.

The main force behind the petition was Midwest Environmental Advocates, based out of Madison, Wisconsin, according to the Lacrosse Tribune. Midwest Environmental Advocates is a nonprofit environmental law center that specializes in Clean Water Act enforcement, according to their website. They have represented several groups with environmental interests in the past few years, including a group that fought against Richland Center Renewable Energy to reduce pollution into waterways around the lower Wisconsin River.

“Our petition for corrective action is important and justified because it has been over four years now and in many instances and much longer that both the DNR and the EPA have known that Wisconsin does not issue water pollution permits that are fully compliant with the Clean Water Act,” Tressie Kamp, staff attorney for MEA, said.

The petition against the Wisconsin DNR goes back to a letter from 2011 to the DNR that listed 75 omissions and deviations from federal requirements, according to the Lacrosse Tribune. An EPA spokesman said that 40 of those errors have been resolved.

“Is the state being held accountable or not?” MEA director Kimberlee Wright said. “Without effective government, we are compounding what our children and grandchildren will face in a world increasingly short of drinking water.”

Former DNR secretary George Meyer, who looked over the petition, was surprised by the scope of the allegations against the Wisconsin DNR, according to the Lacrosse Tribune.

“When it’s all put together like this, it’s hard to fathom how this could happen,” he said.

However, Adrian Stocks,  the DNR section chief for wastewater permitting, explained how the charges may not be as serious as they seem at first.

“Many of these end up being cases where we are rectifying our language to match federal language. A lot of them aren’t real substantial changes,” he said.

The petition itself refers to a much deeper problem, though. It claims that the governor of Wisconsin and the state legislature have limited the DNR’s ability to the point where they can no longer make informed decisions on water pollution issues.

If the petition does catch the attention of the EPA, it may take some time before we see any of the effects, however. Stocks said that changing a rule takes a minimum of 27 months if  “everything falls into the right place,” according to the Lacrosse Tribune. The alternate route would be an emergency rule-making process that was previously implemented for making changes to air pollution laws in Wisconsin. Stocks said that no emergency measures have been taken on water pollution yet.

Wright said, “[The petitioners are] asking the DNR to do a better job issuing their water pollution permits. If that can’t happen and if that can’t happen quickly, petitioners are asking EPA to start the process of taking back DNR’s authority to issue permits.”

Sources:

http://www.wkow.com/story/30310980/2015/10/20/petition-filed-with-epa-seeks-cleaner-water-in-wisconsin

http://midwestadvocates.org/news-events/news/petition-to-epa-wisconsins-fails-to-comply-with-clean-water-act/

http://lacrossetribune.com/news/state-and-regional/petition-urges-epa-to-force-wisconsin-to-obey-water-law/article_80578cd2-99e3-52e3-9020-3b2e0010d187.html

 

 

 

 

 

 

Federal Court Rules Against Fracking Regulations

The Swamp Stomp

Volume 15, Issue 43

A federal court in Wyoming ruled that the Bureau of Land Management does not have the authority to regulate hydraulic fracturing on September 30, according to E&E Publishing.

The BLM had plans to set stricter rules on disposing wastewater this summer, according to the Wall Street Journal. The new rules also would have required disclosing what chemicals are used in fracking. However, U.S. District Judge Scott Skavdahl shut these plans down by his ruling.

The main concern that he addressed was that Congress had never given the BLM authority to regulate fracking, according to the Wall Street Journal.

“Congress has not authorized or delegated to the BLM authority to regulate hydraulic fracturing and, under our constitutional structure, it is only through congressional action that the BLM can acquire this authority,” Skavdahl wrote.

Skavdahl said the Safe Drinking Water Act had given the EPA exclusive control over fracking regulations, according to E&E Publishing. However, the Energy Policy Act took away the EPA’s control over fracking in 2005, leaving regulations up to states and tribes to decide.

Skavdahl also felt that the BLM had not substantiated enough evidence to determine that fracking causes harm, according to E&E publishing. Skavdahl also said the BLM had not shown how the new rules they proposed would address the problems they said fracking caused.

“The Fracking Rule seems a remedy in search of harm,” Skavdahl said.

Critics of the ruling argue that the BLM has authority over oil and gas production on federal land, which includes fracking, according to E&E Publishing.

“BLM has well-established authority to regulate hydraulic fracturing and other downhole aspects of drilling on federal lands,” Earthjustice attorney Michael Freeman said.

A spokeswoman for the Interior Department said the BLM will follow the court’s ruling while they consult the Justice Department. They could appeal ruling if they wanted, according to the Wall Street Journal.

 

Sources:

http://www.eenews.net/stories/1060025657

http://www.wsj.com/articles/federal-court-blocks-obama-administration-hydraulic-fracturing-rule-1443641565

 

Waters of the State

The Swamp Stomp

Volume 15, Issue 42

On Friday, October 9, 2015 the United States Court of Appeals for the Sixth Circuit issued a stay of the US Environmental Protection Agency’s (EPA) and the US Army Corps of Engineers’ (Corps) new rule defining the scope of federal jurisdiction under the Clean Water Act (The Clean Water Rule). Until we hear otherwise, the Clean Water Rule is no longer in effect across the entire nation. The nationwide stay may be short-lived, and is contingent upon how the Sixth Circuit answers the key question regarding its own jurisdiction. There is a briefing on the jurisdictional issue is scheduled for completion on November 4, and the court indicated that its decision could be issued “in a matter of weeks.”

There are two sets of state lawsuits that have arisen as a result of the August, 28, 2015 Clean Water Rule. The first was alliance of 18 states (Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin) that filed motions with the Court seeking (1) a stay of the rule during the pendency of the court’s proceedings and (2) a ruling from the Sixth Circuit that it lacked jurisdiction to hear their appeals (enabling pursuit of their cases before the district courts). On July 28, 2015, the U.S. Judicial Panel on Multidistrict Litigation consolidated all Court of Appeals cases in the Sixth Circuit.

On August 27, 2015, the U.S. District Court for North Dakota granted such a motion filed by a second set of 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, North Dakota, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico). This was one day before the new Clean Water rules was set to go into effect. On September 4, 2015, the court clarified that the rule was enjoined only in the 13 plaintiff states, not nationwide. The EPA and the Corps promptly informed the public that enforcement of the new rule in all but the aforementioned 13 states would commence effective August 28, 2015. Enforcement would also pertain the 18 states in the other case.

The Sixth Circuit Court in a 2-1 decision issued a stay of the new Clean Water Rule on October 9, 2015. Two judges in the majority found that the petitioners had demonstrated a “substantial possibility of success on the merits of their claims,” specifically mentioning that it was “far from clear” that the new rule’s distance limitations were harmonious with the Supreme Court’s 2006 decision in Rapanos. The court also indicated that the process by which the distance limitations were adopted was “facially suspect” because the proposed rule did not include distance limitations, calling into question whether the final rule was a logical outgrowth of the proposal (as required under the Administrative Procedure Act). Finally, the court found that the government had not “persuasively rebutted” the petitioners’ argument that the rule’s bright-line distance limitations were devoid of specific scientific support.

In an interesting twist, the lone dissenting judge did not reach the merits of the petitioners’ motion, believing it was “not prudent for [the] court to act before it determines that it has subject-matter jurisdiction.” The majority of 2 countered that it had “no doubt” of the court’s authority to make orders preserving the status quo pending consideration of the outstanding jurisdictional question.

2015WoUSbooks

At the heart of this matter is the concept of states’ rights. The issue is that under the Clean Water Act the state makes the water quality decisions in regards to impacts to both waters of the US and waters that the state has legislated as jurisdictional by the state. As a not so minor point of fact, the Clean Water Rule has nothing to do with improving water quality. It simply designates what is and what is not regulated by the federal government. There is not one syllable in the rule that discusses how the implementation and enforcement of the rule will benefit water quality. We the regulated public are left to assume that if the federal government regulates the waterbody, it will by default become cleaner. It does not take much research to document that this is rarely the case. The recent disaster in Colorado comes to mind.

It is for this reason that under section 401 of the Clean Water Act the states are responsible for water quality decisions. The authors of the original Act recognized this for simple reason that water quality is best managed on a local level. It is simply not possible for a federal entity to have the sensitively to the local needs. This is underscored by another aspect of the Clean Water Act’s goal of transferring jurisdictional determination and permitting roles to the state. This is laid out in detail under section 404(g). It was never the intention of the Act’s authors for the federal government to perpetually run the Clean Water Act programs. Rather it was their intent to transfer this role to the states.

The EPA and Corps are on Constitutional shaky ground. At issue is the role of the federal government. In every wetland related Supreme Court case the Court has ruled based upon the Commerce Clause of the Constitution. The federal government can only regulate waters of the US in so far as the impacts to them effect interstate or foreign commerce. Unfortunately, the concept of significant nexus as defined by Justice Kennedy in the Rapanos case has been widely misinterpreted. A significant nexus to downstream waters has to effect interstate or foreign commerce in order to make a water body federally jurisdictional. Making the clean water “dirty” is not the same thing. The Commerce Clause must be satisfied to enable federal jurisdiction.

The states are not limited by the Commerce Clause. If the voting public in a state decides to pass legislation though their state representatives to protect a certain water body type, they are empowered to do this. However, this must take the form of legislation and not rule making. When the Supreme Court ruled in the SWANCC case that isolated wetlands (not commerce connected) are not federally jurisdictional, many state environmental departments tried to enforce rules to protect these types of wetlands. If there was not enabling state legislation, these rules fell apart.

The bottom line is the question as to whether the federal government can mandate regulation over land that would otherwise be regulated by the state without satisfying the Commerce Clause. There is also the small matter of the Administrative Procedures Act (APA) question as to the manner in which the rules have been vetted thought the public review process. It was sort of a bait and switch operation. However, this may delay the implementation of the Clean Water Rules but it most likely will not derail it. That matter is left to the state cases.