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Posts Tagged ‘water quality’

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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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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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 PostWashington 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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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 NRDCWaterkeeper 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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“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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“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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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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