Supreme Court Hears Sackett Case

We’ll probably have more on this later today or tomorrow, but for those interested in how it went at the Supreme Court today, our friends at Center for Justice have posted the transcript of the oral argument. (Spoiler Alert: the EPA seemed to have a pretty tough day.)

Regardless of the outcome of the case, and regardless of how you feel about wetlands enforcement, the EPA, or anything else — the nation’s highest court is an awesome and impressive thing.  We’re extremely honored to take part.

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BREAKING NEWS: Supreme Court Accepts Conservation Brief in Sackett Case

This morning, the U.S. Supreme Court agreed to allow filing of an amicus brief in the Sackett v. EPA case which will be argued at the Court on Monday morning. (The Supreme Court’s order (pdf) is here.)  The brief is being filed on behalf of NRDC, the Waterkeeper Alliance, Idaho Conservation League, Idaho Rivers United, Lake Pend Oreille Waterkeeper, and Kootenai Environmental Alliance.

 

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What We’re Reading – Sackett Wetland Case Preview Edition

The Supreme Court wetland case involving a Priest Lake lot will be heard by the Court on Monday morning, and the legal and environmental pundits have been previewing the case. The Court has yet to rule on whether a brief by conservation groups will be filed, but a ruling could come as early as tomorrow. In the mean time, here are some of the more impressive previews:

The authoritative and well-respected SCOTUS blog has its preview by legal reporter Lyle Dennison here.

For the Center for Progressive Reform, law professor Nina Mendelson describes why the case is important to environmental enforcement and suggests reforms to avoid problems in the future.

Huffington Post, Washington Post and the LA Times covered the issue recently.

Our friends (and hopefully co-friends-of-the-court) at Idaho Conservation League took note with this post.

UPDATED 1/7:  NRDC has a superb post here.

 

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Sacketts Oppose Conservation Groups’ Supreme Court Brief

On Monday, the U.S. Supreme Court will hear oral arguments in the case of Priest Lake residents Mike and Chantell Sackett.  We’ve written about this complicated wetlands case before. The Sacketts are suing the EPA over a wetland determination on their property, and that a compliance order issued by EPA in the case should be immediately reviewable in a Court.

In support of the Sacketts’s position, some 13 parties filed “friend of the court” briefs to expand on the Sackett’s arguments, including heavyweights like the Farm Bureau, U.S. Chamber of Commerce, the National Association of Manufacturers, the National Association of Home Builders and General Electric.  However, when KEA joined with NRDC, Waterkeeper Alliance, and several other Idaho conservation groups to file a similar brief in support of the EPA, the Sacketts filed a rare objection. The Supreme Court will likely decide whether or not to allow our brief in the next several days.

At issue is the fact that the scenario the Sacketts outline for the Court does not entirely comport to what actually happened. Documents obtained by environmental groups – including a timeline written by Chantell Sackett herself – paint an entirely different picture.

The Sacketts, who argue to the Court that they were blindsided by an EPA Compliance Order regarding the existence of wetlands on their property, fail to acknowledge to the Court that the EPA and their own consultant told them about the wetlands months earlier. (Much later, the Sacketts evidently hired another consultant more to their liking.) The Sacketts who argue about the heavy hand of the EPA fail to acknowledge to the Court that they had ample opportunity to work with EPA to resolve the issues for almost six months prior to receiving the compliance order and for months afterward. The Sacketts who claim that the wetlands permitting process and risk of fines would be financially devastating and would therefore violate their due process rights, fail to mention that an “after the fact” permit would have been very easy and inexpensive to obtain and was offered by the Corps of Engineers as an option.

The Sacketts do not dispute any of these facts. They do, however, in their opposition to our filing, try to explain them away and diminish their significance to the narrow procedural case before the Court.

Indeed, the Supreme Court may decide that the issue of whether the Sacketts’ story holds up or not is the Supreme Court’s problem, and is rather the Sackett’s problem for a later date. The theoretical issues identified by the Supreme Court in granting their review remain the same. The problem, we believe, is that the Supreme Court doesn’t decide theoretical issues, they decide actual cases. We simply believe they should have all the information in this actual case.  We’ll let you know if the Court lets us give our version of the story.

 

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The Misguided CDA Press on the Misunderstood Impacts of the Spokane River Cleanup

“Take all the acronyms, the scientific formulas, the political agendas at cross purposes and the bitter cross-state line disputes. Flush it all down the toilet.”

Or so the ever-helpful CDA Press editorialized this past Sunday.  The paper is evidently calling for some sort of misguided citizen uprising against yet-to-be-determined sewage rate increases caused by yet-to-be-permitted sewage treatment upgrades. Wildly missing the mark though, the CDA Press does the region no favors.

In fact, some 13 years into an impossibly complicated process, the polluted Spokane River and particularly he green-slimed and oxygen-starved Long Lake finally have a reasonable cleanup plan that requires significant pollution reductions to all the dischargers on the River, including Idaho’s. Despite the editorial’s unfounded and hyperbolic claims, Idaho municipalities discharging onto the River are already committed and are hard at work designing and testing improved sewage treatment technologies.

Indeed, the reality ignored by the CDA Press is that there is no circumstance under which any of the dischargers in the Spokane River will be avoiding additional levels of sewage treatment. These improvements to wastewater infrastructure are being implemented on both sides of the state line. The actual discharge limit that will be written into Idaho permits is still a hard-fought and complicated question, but there is universal agreement that whatever the limit is, it will be much much lower than it is now.

In fact, the Washington Department of Ecology has been open to innovative ways to accommodate polluters on both sides of the border. Enabling concepts like bubble permits, seasonal averaging, pollution and pollutant trading, and bioavailability adjustments, the regulators are bending over backwards for pollution dischargers.

Most significantly, the sewer rates aren’t set yet. In fact, the City of Coeur d’Alene has appointed an advisory committee to review how the sewer rates and necessary infrastructure investments will be phased and financed. Rates will certainly be going up, but how much and how fast are still very much open questions.

These investments are certainly not easy. And they are unquestionably going to be expensive. But it’s the right thing to do for our river if we are going to continue to use it to dispose of our sewage. The hyperbole and nonsense being spewed by the CDA Press is not helpful.

 

 

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BNSF Refueling Depot and Its Inevitable Failure

“Spitting in the face of the physical laws of the universe is a fool’s game. Mother Nature does not do bailouts, nor does she forgive stupidity.”

Jules Gindraux, a longtime aquifer advocate, had a wonderful letter to the Coeur d’Alene Press recently regarding the BNSF refueling depot. The BNSF facility goes before a Kootenai County hearing examiner this evening for renewal of their conditional permit for operations.

Jules points out the sad inevitability of the disaster waiting to happen as the BNSF facility refuels dozens of trains with thousands of gallons of fuel directly above the sole source of drinking water for more than a half million people. It is not really a matter of whether such a facility will fail, it is only a matter of when. As Jules puts it, “Every day that passes brings us closer to the ‘mean-time-to-failure.’” Of course, this facility has already failed once.

Unfortunately, BNSF has an approval from the county that should never have been given. Now, in an effort to make a bad situation less bad, and a potential disaster perhaps less catastrophic, the county has been trying to build into the permit renewal new aquifer protection conditions, spill prevention mechanisms and better accountability. However, BNSF, by running to the courthouse and filing a lawsuit, has been successful so far in limiting any significant impact to its operations or bottom line. For example, BNSF continues to refuse a condition on the facility that would require the facility to be shut down automatically in the case of a leak. Instead, BNSF says they will wait for Idaho DEQ or some other government agency to order them shut down.

Unfortunately, the threat is likely to be much worse than anyone may have ever imagined during the original approvals. An enormous amount of coal from the Powder River basin in Wyoming and Montana is being proposed for export to India and China via controversial port facilities in western Washington. All of that coal will travel by train through our region. This is likely to double rail traffic with exceedingly long and exceedingly heavy trains.

The probabilities for disaster, however remote on any given day, are doubling. And the odds are worsening with every rumbling train over the thin protective liners that separate the aquifer from BNSF’s supply of diesel fuel.

As Jules explains colorfully:

When the disaster occurs, we will hear the universal excuse: We Never Saw It Coming. A subsequent investigation will show that Mistakes Were Made. But of course the guilty parties will not be held accountable. The universal mea culpa will state It’s a Wakeup Call, and as that phrase dies on the wind, our politicians and the money powers will return to kissing Aaron’s Golden Calf on the arse.

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Kootenai County and BNSF Adjust Conditions for Refueling Operations

BNSF and Kootenai County appear to have resolved differences over conditions of operation at the poorly located railroad refueling station over the Rathdrum Prairie Aquifer near Hauser. Recall that BNSF objected to tougher new conditions the County proposed last year, and ran immediately to the courthouse. Now, scheduled for a hearing before a hearing examiner September 1st, are a new set of conditions that BNSF appears to have agreed to.

Some changes in the new conditions were minor. For example, the County had originally asked that BNSF finance a position at DEQ for aquifer protection for as long as the facility is in operation. Now, under the revised conditions, BNSF would continue to provide funding for a DEQ staff position for a period of 10 years, but after 10 years, BNSF would continue funding at a level of $100,000 per year as long as the facility is in operation.

The main change between what was proposed last year and what will go to the hearing examiner this year appears to govern what happens when something goes horribly wrong. Originally the County had insisted that if a potential petroleum leak had penetrated two of the three layers of containment protection, the facility would need to cease operations immediately, and they could not resume until they were cleared to operate by DEQ.

Now, however, the proposed condition is much more lenient. The new proposed condition states that, for any release outside all of the containment areas:

the initial response to any release of petroleum products shall include immediate action to prevent further release of petroleum outside the containment areas, which may include ceasing operations at the facility in whole or in part, if so directed by DEQ … until the release has been stopped, at which point operations may be resumed.

In other words, BNSF does not stop operating until the leak has passed through all the layers of protection. Indeed, it still doesn’t stop operating until an agency shuts them down. And BNSF starts right back up once the leak is stopped, regardless of any cleanup that might be necessary.

Basically, we’re deeply concerned that this condition is far too loose to be fully preventative. We’ve only got one sole-source drinking water supply. We need to be much more protective than these new operating conditions would allow for this facility.

 

 

 

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Intern Attends IdaH2O Program Through Budget-Threatened U of I Extension

Intern Kayla  Baker reports on the excellent IdaH2O Master Water Steward program she attended last month. Programs like these (including forestry and master gardening) at the University of Idaho Extension could be threatened in the Kootenai County budget process.

The IdaH2O Master Water Steward Program, offered by the University of Idaho Extension, is only a year old but shows promise in educating North Idaho citizens about water quality monitoring. From my experience with the program, I believe that it is an excellent opportunity to immerse oneself in the health of our local water systems. In just a day, citizen volunteers learn how to assess streams and lakes on a number of bases: habitat (riparian and canopy cover, streambed substrate, human use, etc.), physical (water transparency, stream width and depth, stream velocity, etc.), chemical (water pH levels, dissolved oxygen levels, amount of nutrients such as nitrate and phosphorous), and biological (survey of present invertebrates).

The program’s lecture portion is to the point and is enlightening. I feel the most important thing one will learn from this seminar is how human use of water can impair water quality; for example, the overuse of fertilizers containing phosphorous or nitrate can lead to a lack of oxygen in the water, which is dangerous for the aquatic ecosystem as a whole. Following the lecture period, volunteers are given a hands-on experience to apply themselves in a local stream. This is important for program goers, as they are given the optional task of carrying out annual water monitoring on a stream of their choice, and are given all the tools required to carry out the monitoring. The IdaH2O program hopes that the data collected by their certified water stewards will someday help agencies institute standards for water quality in the area.

I was very fortunate to take part in the program due to my internship at the Kootenai Environmental Alliance. After taking a course in Environmental Science at North Idaho College, I find the IdaH2O program to be a great supplement in a hands-on and more personal way. Personally, my favorite aspect of the course was biological assessment, as I hope to become a wildlife biologist in the future. It is important to me to see that our water systems have an appropriate amount of biodiversity in order to keep a healthy balance of life, and it is essential that close attention is paid to organisms that serve as indicators of environmental health.

With what I have gained from this program, I hope to make a change as a student. I am currently forming a student environmental group at North Idaho College, and I am planning to start a water monitoring site and include student members in assessment. This will hopefully culminate in a campus-based campaign to raise awareness of how to keep our watershed healthy.

I am glad to have the opportunity to take this class, and I hope that many citizens will take a little time to discover how truly important water is, and hopefully to discover our true duty as stewards to our community and our planet.

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Congress’s Dirty Water Act

We meant to get back to our brief mention of potential Congressional action to destroy the Clean Water Act. The cynically named “Clean Water Cooperative Federalism Act,” HB 2018, turns the long-standing successful structure of the Clean Water Act on its head, stripping EPA oversight over water quality programs in the states.

The Clean Water Act has been a prime example of “cooperative federalism” common to environmental (and other federal) laws. Generally, the federal enabling legislation sets a basic structure and sets minimum standards and allows states do the implementation. NRDC explains it in this way:

The federal Clean Water Act provides a safety net for waterways across the country, where states must implement minimum provisions to protect water quality.  States can always do more if they so choose, but the law recognizes that Americans deserve a minimum standard of protection no matter where they live, and the Clean Water Act is designed to prevent a “race to the bottom” in places where the benefits of clean water may be ignored for short term economic or political gain.  

Now, Congress is preparing to eliminate the safety net. The opening statement of EPA’s “Technical Assessment H.R. 2018” says it bluntly:  “The bill would overturn almost 40 years of federal legislation by preventing EPA from protecting public health and water quality.”  Furthermore, EPA’s assessment of HB 2018 says:

• “The bill would prevent EPA from providing its views on whether a proposed project that pollutes or even destroys lakes, streams, or wetlands would violate Clean Water Act standards.”
• “The bill would remove EPA’s existing state coordination role and eliminate the careful Federal/State balance established in the current Clean Water Act.”
• “The bill would prevent EPA from protecting communities from unacceptable adverse impacts to their water supplies and the environment caused by Federal permits.”
• “The bill would substantively eliminate the opportunity for EPA, the federal government’s expert on water quality, to comment on Federal permits impacting water quality and public health.

Ironically, Idaho is one of very few states that have not claimed control of Clean Water Act permitting, so some of the provisions would not “benefit” Idaho’s fiercely anti-federal attitudes.

Much of this congressional activity is rooted in the new politics in the U.S. House of Representatives, and simmering controversies over cleaning up the Chesapeake Bay and lakes in Florida, and over EPA’s skepticism over mountaintop removal coal mining in West Virginia. Notwithstanding the specific regional concerns, it seems that forces in Congress seem bent on destroying the whole Clean Water Act for the whole of the country.  By all accounts, this is the most serious attack on clean water in a long long time.

We’ve posted one link to take action via our local Waterkeepers. Here’s another one to take action via NRDC. Representatives — even the ones in Idaho — should hear from constituents who think that our water quality protections should be improved – not sacrificed on behalf of polluting industries in the service of some phony “federalism.”

UPDATE 7/12: The White House today issued a very rare veto threat on HB 2018. (A pdf) We hope it works.

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Conservationists Critical of Draft Rathdrum Prairie Aquifer Management Plan

Led by Kootenai Environmental Alliance, regional conservation groups filed comments June 10th with the Idaho Water Resources Board on the draft Comprehensive Aquifer Management Plan for our local Rathdrum Prairie Aquifer.   According to the comments, the plan is “not specific enough, not enforceable enough, and doesn’t go far enough to properly protect the aquifer resources.” The comments expressed concern that the plan would prove to be insufficient to protect the aquifer over the plan’s long-term planning horizon.  KEA was joined by Spokane Riverkeeper, Lake Pend Oreille Waterkeeper and the Lands Council in comments to the Water Board.

The Rathdrum Prairie Aquifer is the sole source of drinking water to more than a half-million people in the corridor from Coeur d’Alene to Spokane.  A unique and valuable resource, it is a plentiful water supply but it is not infinite. Pressures on the resource are already being felt as cool clean water from the aquifer returns to the Spokane River in ever-decreasing amounts.

The draft CAMP, under development for a year by an advisory committee appointed by the Water Board, has express goals to:  (1) Provide reliable sources of water, projecting 50 years in to the future, (2) Develop strategies to avoid conflicts over water resources, (3) Prioritize future state investments in water, and (4) Bridge the gaps between future water needs and supply.  The conservation community’s comments agreed with the goals, but were critical of the CAMP’s lack of specifics in meeting these goals.

The comments (available here) criticized the draft CAMP’s lack of specific measures for water conservation, lack of specific language limiting water exports from the aquifer to other basins, and lack of specific language about water quality protections of our sole-source aquifer.

In addition, the comments were sharply critical of the CAMP’s blithe acceptance of “artificial recharge” as a potential solution to demand pressures on the aquifer. A proposal to recharge the aquifer with Lake Pend Oreille water using a $90 million pipeline and injection scheme has already been floated.  The conservationists commented:

Artificial recharge projects should not be a substitute for proper aquifer management, development regulations, and water conservation programs and requirements. Again, we believe, at the very least, the CAMP should be specific about circumstances, triggers, standards, legalities, and limitations for such projects. The CAMP should make it clear that major artificial recharge projects should be a last resort, and should be considered only as a temporary, emergency, short-term solution after all other efforts have failed.

The CAMP advisory group meets in Coeur d’Alene this week to review and consider comments.

 

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