Federal Water Tap, December 5: Army Corps Denies Dakota Access Pipeline Easement

The Rundown

In a partial win for protesters, the Army Corps will reassess the route of the Dakota Access pipeline. It was a busy week for the EPA: the agency released a new drinking water strategy. An EPA regional office, meanwhile, rates an Army Corps review of a proposed Columbia River coal terminal as “inadequate.” The EPA also lists the first 10 chemicals it will assess under a revised toxics rule. The president’s science advisers recommend technological approaches to clean drinking water. The trial between Florida and Georgia over a shared river basin ends with a plea for a settlement. Regulators propose new financial rules to prevent hardrock mines from becoming Superfund sites. A Canada-U.S. commission recommends ways to keep a common flame retardant out of the Great Lakes. And lastly, the U.S. trade deficit for fruits and vegetables is growing.

“The Army’s announcement underscores that tribal rights reserved in treaties and federal law, as well as nation-to-nation consultation with tribal leaders, are essential components of the analysis to be undertaken in the environmental impact statement going forward.” — Interior Sec. Sally Jewell on the Army Corps’ decision to deny an easement for the Dakota Access pipeline to drill beneath Lake Oahe.

“We are deeply appreciative that the Obama administration took the time and effort to genuinely consider the broad spectrum of tribal concerns. In a system that has continuously been stacked against us from every angle, it took tremendous courage to take a new approach to our nation-to-nation relationship, and we will be forever grateful.” — Dave Archambault II, Standing Rock Sioux chairman, on the Army Corps’ rejection of the Dakota Access easement.

By the Numbers

10: Number of chemicals that will be evaluated in the initial round of assessments under a revised federal law for toxic substances. Most of the chemicals on the list — 1,4-Dioxane, trichloroethylene, and methylene chloride, for instance — contaminate groundwater, especially near industrial sites where they were used or manufactured. If any of the chemicals pose an “unreasonable risk” to human health or ecosystems, then the EPA can take a number of actions, including warning labels on products, worker protections, limitations on manufacturing, processing and use, or banning the chemical. (U.S. Environmental Protection Agency)

44 million tons: Annual export capacity of proposed Columbia River coal terminal. The EPA rated the Army Corp’s environmental review as “inadequate.” (EPA)

News Briefs

Dakota Access Update
The Army Corps denied an easement for the Dakota Access pipeline to cross beneath Lake Oahe, a federal reservoir on the Missouri River. The announcement, however, is not an outright rejection of the pipeline. The corps instead will do an environmental impact statement (EIS) to assess alternate routes. This summer the corps concluded that an EIS was not necessary and did an environmental assessment, a less rigorous process. The public outcry the last several months changed the agency’s course.

The EIS will, at minimum, address three areas, according to a four-page memo from Jo-Ellen Darcy, assistant secretary of the Army for civil works. It will evaluate alternate locations for the pipeline to cross the Missouri River, analyze the risk of an oil spill on the tribe’s drinking water and fishing rights, and explore the tribe’s treaty rights to Lake Oahe.

“My decision acknowledges and addresses that a more robust analysis of alternatives can be done and should be done, under these circumstances, before an easement is granted for the Dakota Access pipeline to cross the Missouri River on corps land,” Darcy wrote in the memo.

Drinking Water Plan
After an epic screw-up in Flint, the EPA is rededicating itself to clean drinking water. The agency’s new drinking water strategy, under development since April, emphasizes six priorities:

  • Assist poor, rural, and minority communities
  • Use data and periodic evaluations to improve state and local oversight
  • Prevent pollution of rivers, lakes, and aquifers
  • Address unregulated contaminants
  • Be better communicators of drinking water safety
  • Reduce the risk of lead poisoning by completing lead and copper rule revision

More coverage of the strategy to come this week from Circle of Blue.

Water Resources Development Act Update
The House and Senate made strides on a compromise bill, but a deal is being held up by a provision to use only American-produced steel and iron in federally funded drinking water projects. Senate leaders, mostly Democrats, want to reinsert the Buy America clause that their House colleagues dropped.

Florida v. Georgia Water Trial Ends
The five-week trial between southern neighbors over water use in a shared river basin concluded on December 1. The U.S. Supreme Court-appointed expert overseeing the case urged the states to settle, according to the Atlanta Journal-Constitution.

“Finally, please settle this blasted thing,” Ralph Lancaster, a lawyer, said. “I can guarantee at least one of you will be unhappy with my recommendation and, perhaps, both of you. You can’t both be winners. But you can both be losers.”

Lancaster indicated that he would issue a ruling quickly, possibly before Christmas. The Supreme Court would then rule in 2017 on the special master’s recommendations.

Gold King Lawsuit
The U.S. Supreme Court asked the Obama administration to submit a brief on a lawsuit over the Gold King mine spill, the Associated Press reports. New Mexico sued Colorado for the August 2015 release of heavy metals into the Animas River that was triggered by an EPA crew.

Studies and Reports

Drinking Water Technology Report
The president’s science advisers released a report on science and technology approaches to drinking water safety. The report makes near-term and long-term recommendations. In the near term agencies should increase monitoring of contaminants in poor and rural areas, collect and share more data, and train water system operators.

In the long term, the federal government should invest in research and development that lower costs and opens new insights: sensors, purification processes, leak detection systems, and more. The government should also fund demonstration projects, the report argues.

On December 12, the council will hold a public conference call in which it will discuss the findings.

Hardrock Mining Cleanup
As an incentive to be environmentally responsible and to reduce the number of future Superfund sites, the EPA proposes new financial rules for hardrock mining companies. Companies have two options: use bonds, insurance, or another financial instrument to set aside money for cleanup or certify that they have enough money on their balance sheets to be able to cover pollution and restoration costs. This is called “self insurance.”

The proposal applies to 221 large facilities nationwide that are currently operating – primarily mines, but also smelters, mineral processors, and brine extraction operations. The EPA excluded nearly 80,000 coal mines and smaller mines from regulation and 4,500 abandoned mines. The rule would largely affect gold, copper, and iron ore mines.

“It will definitely increase costs [for hardrock mining companies],” Russell Randle, an environmental lawyer at Squire Patton Boggs, told Circle of Blue. Randle said that passing a self-insurance test will be more difficult than in the past because the recent fall in commodity prices has hurt the industry’s financial health.

Similar rules for the chemical manufacturing, petroleum, and electric power sectors will be forthcoming.

Keeping a Flame Retardant out of the Great Lakes
To cleanse the lakes, a commission that oversees waters shared by Canada and the United States recommends regulations on the production and use of a common flame retardant.

Both governments have declared PBDE a “chemical of mutual concern,” a designation that requires a unified strategy to decrease its presence in the environment. The International Joint Commission offered 10 recommendations for addressing the problem.

House Science Committee Pushes Falsehood
On December 1, the House Science Committee tweeted a Breitbart News post that makes false statements about global temperatures and greenhouse gases.

Food Imports
The United States has flipped from a net exporter of fruits and vegetables in the 1970s to a net importer, according to a Congressional Research Service report. The fruit and vegetable trade deficit in 2015 was $US 11.4 billion. Why? Increased demand for winter produce, low or no tariffs on imports, lower production costs abroad or government subsidy, and trade barriers for exporting.

One specialty crop sector, however, is doing well. That sector, as any Californian could tell you, is tree nuts. Walnuts, almonds, hazelnuts, and others show a growing trade surplus.

On the Radar

EPA Gives Coal Export Terminal Review an “Inadequate” Rating
The EPA has a number of objections to the Army Corps’ draft environmental review of a Columbia River coal export terminal.

First, the review is skewed. It assesses broad benefits and narrow costs. It assumes a wide range of economic gains — new jobs in the local and state economy for instance. But the environmental costs are restricted to the half-mile plot on which the terminal would be built. There is no mention of air, noise, and traffic issues within the county and state as a whole.

Second, the analysis does not consider the climate change consequences of the facility. The review looks at carbon emissions from the terminal but not from the 44 million tons of coal per year that would move through it or from mining and delivering the coal. Carbon emissions are a “very significant environmental impact of the project” and should be considered, according to the EPA regional administrator.

Demonstrators at Columbia Basin Dams Meeting
Chants of “Free the Snake!” were followed with cries of “Rise, Cascadia, Rise!” outside an Army Corps meeting in Seattle on December 1. The meeting’s intent was to gather public input on an environmental review of 14 federal dams in the Columbia River Basin.

One of the options that will be considered in the review is the removal of four dams on the lower Snake River, a Columbia tributary, in order to revive salmon runs. Any recommendation to remove the dams will be controversial given their importance to grain growers in the interior Pacific Northwest. The dams allow barges to navigate the river as far inland as Lewiston, Idaho.

The demonstrators, numbering more than 100, brought accessories: an 18-foot-long inflatable orca, drummers, and dozens of windsock salmon, glimmering green and pink. For a picture, see here.

Dead Zone Meeting
On December 6, a federal task force for addressing the low-oxygen “dead zone” in the Gulf of Mexico will hold a public meeting in New Orleans. The event will be webcast but registration is required.

Federal Water Tap is a weekly digest spotting trends in U.S. government water policy. To get more water news, follow Circle of Blue on Twitter and sign up for our newsletter.