Archive for the ‘Stormwater’ Category

Chief Justice Roberts to EPA: “Why’d You Have to Go and Make Things So Complicated?”

Photo by Richard Webb. Some rights reserved.

Photo by Richard Webb. Some rights reserved.

Last Friday afternoon, the EPA issued a new final rule which clarifies that a National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater runoff on logging roads. This rule revises a previous EPA rule on Phase I stormwater discharge regulations, and states that the EPA will not be regulating stormwater discharges. Reasoning for the change of position is as follows:

“Discharges from forest roads can seriously degrade forest streams and rivers, but these discharges can be successfully controlled through [best management practices], such as grading and seeding road surfaces and designing road drainage structures to discharge runoff in small quantities to off-road areas that are not hydrologically connected to surface waters.”

This final rule has been eminent for some time, as the related notice of proposed rulemaking was published in the Federal Register on September 4. However, its issuance on Friday held some ramifications for a Supreme Court argument being argued the following Monday. The case in question is Doug Decker v. Northwest Environmental Defense Center, an argument against logging companies and Oregon forestry officials by an environmental group claiming that the defendants are required to obtain permits for stormwater runoff on the logging roads they manage. The newly revised EPA regulations stating that a permit is not required perplexed Chief Justice Roberts, who reportedly turned to a government lawyer and asked, regarding the existence of new rules, “were you as surprised as we were?”

Despite the fact that the government did recommend last May that the court not pursue the case right away, as they anticipated new rules from the EPA on the subject, the chief justice was understandably irritated by the EPA’s covert movements, stating “if we knew that the final rule was imminent, we could have rescheduled the case for April.”

More from the EPA on the stormwater regulations: Fact Sheet | FAQs

Sandy and Climate Science

Hurricane Irene. Photo by NASA Goddard Space Flight Center, some rights reserved.

Looking back on Hurricane Sandy, everyone wants to use it as evidence for their own conclusion. With the devastation in New York, one thing is clear in retrospect – it should not be a huge surprise. Studies from, to name a few, the Goddard Institute for Space Studies at NASA, the U.S. Army Corps of Engineers, and the State of New York, predicted that some form of “worst case” or hundred-year storm could in fact flood New York’s financial district, flood 3000 miles of roads in Brooklyn and Queens, and inundate the subway system. In short, this describes what happened this week.

As we would expect with most scientific or policy papers, most people probably wouldn’t have been able to tell you about these predictions two weeks ago, something that has left climate advocates scientists befuddled. The responses cited in yesterday’s Green Mien post are among the more measured comments I have read regarding the relationship between Sandy and global warming, and you should read them for an informed commentary on the strength of this relationship. But climate scientists and the journalists covering them are prone to the kind of moralizing ‘I told you so’ judgments that keep their ideas off the center stage of popular press. Sandy, they think, should change this, and propel their issue to prominence.

And they have a point. The national political dialogue has steered clear of climate change, its absence from the presidential debates confirming its place as a “boutique issue.” Sandy should make clear that addressing long-term risks, including, yes, those presented by climate change and associated weather events, absolutely have a place in policy debate. ‘Global warming’ might struggle to become a buzzword in Washington because of its association with the fear mongering to which climate science sometimes resorts. But risk management is certainly an acceptable way to absorb the issue into an existing framework for action.

Mother Jones’s Chris Mooney claims “science phobia” is responsible for the failure of climate scientists’ agenda to seriously affect national political discourse. To the contrary, I think environmental advocates struggle not with an unreceptive public but with framing their issue as our issue – and Sandy presents an opportunity to do so.

A Sliver of an Exemption Left in Silviculture Rule

Photo by ッ Zach Hoeken ッ. Some rights reserved.

40 CFR 122.27 (the EPA’s “silviculture rule”) exempts from NPDES permitting all discharges from silvicultural (forestry) activities such as thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance resulting from natural runoff.

But recent opinions from the U.S. Court of Appeals for the Ninth Circuit have restricted the interpretation of this exemption.

In Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176,  the Northwest Environmental Defense Center brought suit against Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies for their failure to obtain permits for discharges from systems of ditches, culverts, and channels that receive stormwater runoff from two logging roads in the Tillamook State Forest. The Defendants argued that these discharges are “point source” discharges under the Clean Water Act (CWA) and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).

The Ninth Circuit agreed, filing their original opinion in the case on August 17, 2010. According to Perkins Coie’s Update on the case, the silviculture rule’s exemption for natural runoff “ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into the waters of the United States.”

On October 5, 2010, the defendants filed petitions (here and here) for rehearing and rehearing en banc, but just two weeks ago, the Ninth Circuit issued an order and opinion denying the petitions, and environmentalists everywhere rejoiced.

Hurrah!

Clearing Up Oregon’s Definition of Turbidity

Marten Law published an article earlier this week describing the challenges facing Oregon’s Department of Environmental Quality (DEQ) as they revise their 30-year-old definition of “turbidity.”

Photo by John Kratz. Some rights reserved.

What is turbidity? Turbidity is a measure of water clarity or cloudiness, caused by material that is suspended in the water. The material can range from soil particles from eroding watersheds to decaying plant matter to industrial waste discharges. High turbidity can be evidence of pathogens in drinking water, can increase water temperatures, impair photosynthesis, clog fish gills and otherwise harm aquatic life.

While increases in turbidity can often be attributed to human activities such as logging, agricultural practices, or construction, there is also substantial natural variability in a given water body’s turbidity from season to season (as big rains wash excessive sediment into the water) or in mountainous areas (where erosion and glacial flow can cause large changes in turbidity).

Turbidity, as a measure of water quality, is covered by the Clean Water Act (CWA). Under Section 303(c) of CWA, the EPA mandates individual states to develop water quality standards. While the EPA produces publications such as Quality Criteria for Water from time to time, these documents are not regulations in and of themselves, but rather offer data and guidance on which states can develop their own standards.

These standards are used in the evaluation of NPDES permits under CWA Section 402 and dredge and fill permits under CWA Section 404, in determining whether a body of water should be listed as “impaired” under CWA Section 303(d), and also in determining pollutant loading allocations under TMDL programs.

Ideally, states can come up with cold, hard numerical standards – limiting turbidity to a certain number and size of Nephelometric Turbidity Units (NTUs). Of course, actually determining useful absolute standards is much easier said than done. In addition to the inherent variability in a given water body, one must also establish a baseline “background” turbidity for each body of water, as well as grapple with the limitations of differences in instruments and techniques for gathering turbidity data.

Many states, like Oregon, apply a more “relative” approach for turbidity standards. Their current rule (OAR 340-041-0036) states that “No more than a ten percent cumulative increase in natural stream turbidities may be allowed, as measured relative to a control point immediately upstream of the turbidity causing activity.” According to Marten Law, DEQ hasn’t changed the water quality standard in more than 30 years! DEQ’s draft issue paper on the proposed revisions explains that the purpose of the review is to “incorporate best available science regarding the effects of increased turbidity levels.” For a clear explanation of the anticipated changes, don’t forget to check out the Marten Law article.

Icky Sickly Water Woes

Two recent news stories showcase the often uninvited residents of our nation’s water resources.

Photo by freeaussiestock.com. Some rights reserved.

Waterways through and surrounding the city of Boston have been receiving unwelcome and illegal dumps of raw sewage and other pollutants, according to a citizen lawsuit filed by the Conservation Law Foundation (CLF) in February of 2010. CLF alleges that defendant Boston Water and Sewer Commission’s (BWSC) “significant water-quality problems and programmatic deficiencies” are in violation of the Clean Water Act.

Then, yesterday, the EPA announced that the United States would be joining CLF’s case on the EPA’s behalf, seeking injunctive relief “in the form of significantly increased resources for BWSC to identify and expeditiously remove all illicit connections, implement stormwater Best Management Practices to mitigate concentrations of pollutants to the maximum extent practicable, establish programs necessary to meet permit conditions, and take actions necessary to mitigate and prevent [Sanitary Sewer Overflows].”

Since it’s winter, one shouldn’t need much more discouragement from taking a dip in the Charles, but just in case you want to know what you’re missing – the term “fecal” appears eight times in the complaint.

A few states down the coast, EPA administrator Lisa Jackson met with ten U.S. senators to discuss a recent report from the Environment Working Group that found chromium-6 (the “carcinogenic ‘Erin Brockovich chemical’”) in the drinking water of 31 out of 35 U.S. cities tested.

While the report claims that, despite its toxicity, the EPA “has not set a legal limit for chromium-6 in tap water,” the EPA was quick to disagree. A defensive statement released on Wednesday argues that the EPA “absolutely has a drinking water standard for total chromium, which includes chromium-6 (also known as Hexavalent Chromium), and we require water systems to test for it.”

Jackson’s slightly less defensive remarks on the senators’ meeting suggest that the EPA is moving quickly in response to the report. Though she maintains that “all public water facilities are in compliance with the existing total chromium standards,” she also laid out a series of steps “that the EPA will take over the coming days to address chromium-6 in our drinking water.”

Though most of the hubbub was centered around D.C., the highest levels of chromium-6 detected were actually in Norman, OK, Honolulu, HI, and Riverside, CA. You can track the status of the EPA’s chromium-6 risk assessment here.

You can review the status of BWSC’s stormwater permits and management reports here.

Snow, Salt, and Sand

Here in Seattle, we’re bundling up our extremities, blasting our heaters, and preparing for the treacherous and snail-paced commutes that come hand-in-hand with the first snowstorm of the year.

Photo by Peter Whitcomb. Some rights reserved.

A predicted 1.5 inches might not sound like much to the snow-savvy, but here in the Northwest, we’re ill-equipped to clear our roads in a hurry. In 2008’s “snowpocalypse” deicing nightmare, favoring sand over salt left us with icy, icy streets and a debate that has yet to be settled.

Salt, according to the EPA, “contributes to the corrosion of vehicles and infrastructure and can damage water bodies, ground water, and roadside vegetation.” Sand, however, when overused, “often ends up in the environment, either as dust particles that contribute to air pollution or in runoff to streams and rivers.”

Local news site PubliCola reports that Seattle’s Mayor McGinn has a new snow response plan – and it calls for both salt and sand. Before you voice your opinion loudly in front of those you aim to impress, best gather all the facts from the following EPA guidance:

Managing Highway Deicing to Prevent Contamination of Drinking Water

Road Salt Application and Storage

What You Should Know About Safe Winter Roads and the Environment

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