“Waters of the United States” Comments by Michigan Tribal Interests

CORA, GTB, and Bay Mills comments on EPA’s proposal to change the definition of “Waters of the United States.”

Bay Mills-WOTUS Comments Regarding EPA-HQ-OW-2018-0149

CORA Comments WOTUS 2019

GTB 4-12-19 letter +map

Catherine O’Neill on Washington Dept. of Ecology’s Draft Water Quality Standards and the District Court’s Order Enjoining EPA to Act

Here.  Professor O’Neill provides a detailed and understandable summary of the many problems with Ecology’s draft standards and also explains EPA’s role and the District Court for the Western District of Washington’s recent decision.

The District Court’s decision in Puget Soundkeeper Alliance v. EPA is here: Puget Soundkeeper v EPA Order on Summary Judgment 8-3-16.

EPA publishes Revised Interpretation of Clean Water Act TAS Provision

On May 16, the EPA published a final revised interpretation of the Clean Water Act’s TAS provision in the Clean Water Act, concluding that the Treatment as State provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to section 518(e)’s eligibility requirements.  This revised interpretation eases the burden for tribes applying for TAS status under the Act, removing the hurdle of having to demonstrate inherent regulatory authority under the Montana test in order to apply for TAS status.  The revised interpretation is likely to reduce the time and resources required to obtain EPA approval of TAS applications, particularly for tribes with lands owned by non-Indians within their reservation boundaries.

The Final Interpretive Rule published in the Federal Register is here.

The EPA’s Response to Public Comments on the Revised Interpretation here.

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Law Professor Comments Submitted on EPA Proposed Rule

Law Professor Comments regarding the Environmental Protection Agency’s (EPA) proposed Revision of Certain Water Quality Criteria Applicable to the State of Washington, Docket ID No. EPA-HQ-OW-2015-0174, published at 80 Fed. Reg. 55063 (Sept. 14, 2015):

Water quality standards (WQS) for Washington2 impact the rights, resources, and health and well-being of numerous tribes in the region. In fact, when the waters that support fish are allowed to be contaminated, tribes’ interests are profoundly affected and tribal people disproportionately among the most exposed. This context is significant, because it constrains rulemaking in important ways. Among other things, the adequacy of WQS for Washington must be considered in view of legal protections for tribes’ fishing rights, including treaties and other instruments.

All Things Considered Story on Waste Water Streams at Wind River

Here, via ILTF/@indianland

The responses to NPR’s two Freedom of Information Act requests include emails between staffers, correspondence with the companies, results of water-quality tests, the permits, and documents justifying each permit. Most of this information had not been public before.

The documents show hints of mutiny inside the EPA. Some EPA staffers clearly are appalled by the wastewater releases.

One wrote in an email to colleagues: “Can we get together and discuss a strategic approach for sending our message of concern? I have attached pictures of this ridiculousness.”

Another staffer warns that the chemicals in the water could have “irrevocable human health and environmental impacts.”

The documents also show recent detective work that some EPA staffers did to try to figure out what chemicals companies are putting in the water. Their research reveals that some of the waste streams sometimes include chemicals from hydraulic fracturing, an engineering technique designed to increase the flow of wells. They also include chemicals whose warning labels clearly state “toxic to aquatic organisms,” “prevent material from entering sewers or waterways,” and warnings about cancer and birth defects at low levels.

The documents suggest that at least some people inside the EPA are advocating for stricter rules. But much of this debate has been kept secret. The EPA refused to give NPR 757 documents about the loophole, claiming they can be kept secret because they are between the EPA and its attorneys or among EPA staffers.

 

Water Contamination and Fracking in Wyoming

Tonight’s CBS Evening News included a story on fracking in Pavillion, Wyoming that can be found here.

The NPR story on the subject can be found here. An excerpt:

People in Pavillion, located on the Wind River Indian Reservation, contacted the EPA three years ago, complaining that their water smelled and tasted bad.

The agency started sampling drinking water wells in 2009 and found low levels of methane and other hydrocarbons in most of those wells. Although the levels did not exceed drinking water standards in most cases, the agency recommended that people get other sources of water for drinking and cooking, Encana, the company which drilled the wells, started providing water. The company says it provides drinking water to 21 households at a cost of about $1,500 per month.

The agency was concerned that higher concentrations of some of the chemicals might be lurking elsewhere in the aquifer.

So EPA researchers drilled two wells and found lots of chemicals, which could be tied to drilling. For example, they found levels of benzene, which is known to cause cancer and other health effects, far higher than safe drinking water standards. The presence of other chemicals — like synthetic glycols and alcohols — persuaded them that the contamination was likely coming from fracking.

Finally, a recent post about fracking can be found here.