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What’up WOTUS?

September 25, 2014

The nation’s rivers, lakes and other waters are generally cleaner today than they were forty years ago thanks to the Clean Water Act (1972).  The Clean Water Act (CWA), after all, was designed to fix problems identified in the 1950s and 1960s like sewage treatment, point-source pollution discharges and a legacy of burning rivers.  Because of the CWA, many – but not all – “waters of the United States” (a.k.a. WOTUS) are more swimmable, fishable and drinkable.

Why is everyone talking about WOTUS?  Right now the U.S. Environmental Protection Agency (EPA) is working on a rule making to clarify the definition of “waters of the U.S.”

Under existing regulations, the CWA protects “navigable waters,” which the CWA defines as “the waters of the United States, including the territorial seas.”  However, the CWA does not clearly define “waters of the U.S.”  This means the CWA has given federal agencies latitude to interpret what “waters of the U.S.” means.  As one might imagine, this has led to confusion regarding what water bodies are and are not protected under the CWA.  The level of confusion has also been compounded by two Supreme Court rulings in 2001 and 2006 that questioned the regulatory scope of the CWA.  The Supreme Court created uncertainty about the jurisdiction of “other waters” that do not fall under the category of waters susceptible to interstate commerce, interstate waters, the territorial seas, tributaries or adjacent waters.

Given the uncertainty about the regulatory scope of the CWA, Congress and the Supreme Court urged EPA to clarify regulations on the definition of “waters of the U.S.”  In response, the EPA and the U.S. Army Corps of Engineers (Corps) proposed a two-page rule on March 25, 2014 to clarify protection under the CWA for streams and wetlands across the U.S. The proposed rule will apply to all CWA programs – for example, the National Pollutant Discharge Elimination System (NPDES) and Section 404 discharge of dredge and/or fill permitting –  and reflects the Supreme Court’s more narrow reading of CWA jurisdiction.

What the Proposed Rule Will Do: Primarily, the proposed rule will reduce confusion surrounding protection under the CWA by establishing two simple categories: (1) for waters that are “waters of the United States” and (2) for waters that are not “waters of the U.S.” Waters that are deemed “waters of the U.S.” are subject to multiple regulatory requirements under the CWA, like meeting specific water quality standards, requiring discharge limitations, meeting permit requirements, and are subject to enforcement action. Waters that are not “waters of the U.S.” are not subject to those regulatory requirements under the CWA. By reducing confusion regarding CWA protection, the proposed rule will save time and money that would otherwise be necessary to determine if a water body is protected.

Additionally, the proposed rule clarifies that most seasonal and rain dependent streams are protected as well as wetlands near streams and rivers. Moreover, federal clarification of what is and is not covered under the CWA will help states protect their waters, especially those states that have legal limitations on the ability to protect waters that are not currently covered by the CWA.  Georgia does not have legal limitations on the ability to protect non-CWA waters. When the rule is finalized, it will provide more benefits than costs to the public. According to EPA’s social cost and benefit analysis, the benefits are approximately twice as much as the costs.

No Changes for Agriculture: All existing exemptions and exclusions for agricultural activities will be preserved under the proposed rule.  Moreover, EPA and the Corps coordinated with the U.S. Department of Agriculture to develop an interpretive rule, effective immediately, which ensures that 56 conservation practices that protect or improve water quality are exempt from Section 404 dredge and/or fill permitting requirements under the CWA.  Agricultural practices that qualify for this exemption include habitat restoration and establishment of riparian forest buffers.

What the proposed rule will not do:  Although the proposed rule indicates the specific water bodies that will be protected under the CWA, the proposed rule does not protect any new types of waters that have not been historically covered under the CWA.  Specifically, the proposed rule does not regulate groundwater nor does it expand the regulation of ditches.  Thus, if a water body has not been previously covered under the CWA, that water body will not be covered under the CWA based on this proposed rule.  Moreover, the proposed rule will not remove any exemption currently in the statute or regulations.

Why is the proposed rule beneficial for Georgia?  The lack of clarity under current regulations has made it difficult to provide protection for water bodies throughout the country and in Georgia.  According to EPA (see 15:03 mark), the lack of clarity hindered enforcement efforts in Lake Blackshear’s tributaries to protect water quality standards for recreation. Specifically, unhealthy levels of viruses and bacteria were found in the lake downstream of multiple concentrated animal feeding operations (CAFOs).  In 2008, EPA determined two diary operations were violating the terms of their National Pollutant Discharge Elimination System (NPDES) permits, and issued enforcement orders and levied fines.  Despite putting human health at risk, the CAFOs could not be held fully accountable because it was too complex to prove that the tributaries were protected under the CWA.  The proposed rule defines tributary by establishing characteristics a water must have in order to be considered a tributary.  By providing greater clarity for what is considered a tributary under the CWA, the proposed rule will make it easier to determine if an entity that discharges pollutants into tributaries that feed into a water body in Georgia is responsible for polluting “waters of the U.S.”

No Link Between WOTUS and Georgia’s stream buffers: Recent concerns have been raised over whether the proposed rule will expand stream buffer requirements for waters in Georgia.  These buffers are a creature of state law, not the federal Clean Water Act.  The stream buffer requirements set forth in the Georgia Erosion & Sedimentation Control Act (E&S Act) apply specifically to “state waters,” not to “waters of the U.S.”  The E&S Act requires a 25-foot buffer for all state waters.  State waters are defined by the E&S Act as “any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells, and all other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the state which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation.”  Hence, the proposed rule will not affect Georgia’s application of stream buffer requirements to “state waters.”

Furthermore, EPA has clarified that “waters of the U.S.” and “state waters” are separately defined.  Because federal waters and state waters are separately defined, the proposed rule will not affect state water laws.  The proposed rule preserves this federal-state partnership that was established under the CWA and, thus, will not affect state water laws.

For more information on mis-information spread by opponents to EPA’s proposal rule for WOTUS, visit: River Network’s blog; EPA’s “Ditch The Myth” portal; and this NRDC blog post and “tweet report card.”

The deadline for submitting public comments is October 20, 2014.

For more information on the proposed rule, see EPA’s webinars presented on April 7, 2014 and July 16, 2014.

-Chris Manganiello

Three Rounds Down: GWSP Roundup

August 29, 2014

On August 26, 2014, the Georgia Environmental Finance Authority announced another round of awards from the Governor’s Water Supply Program (GWSP): $26 million in low-interest loans for three expensive reservoirs including at least one that self-identified as ‘un-needed.’  While the GWSP continues to shovel hundreds of millions of dollars into reservoir projects, the state minimizes direct investment in the most cost effective and timely solution: water conservation and efficiency.  With all the money heaped on reservoirs, there is also another modest option on the table worth more study that the Governor’s office has avoided – raising Lake Lanier’s level by two-feet.

The GWSP: In January 2011, Governor Nathan Deal issued an executive order tasking the Georgia Environmental Finance Authority (GEFA) with the responsibility to develop the Governor’s Water Supply Program (GWSP).  The GWSP was launched in November 2011 with the intention to disburse $300 million over four years in the form of low interest loans and state direct investment (SDI) for water supply projects to provide “an adequate supply of clean and affordable water” to communities in need of water security. [PDF page 1]  GEFA was to administer the loans, and the Department of Community Affairs (DCA) was to budget for the SDI.  In 2011 and 2012, and in consultation with Georgia State Financing and Investment Commission (GSFIC), all the parties agreed that SDI had to result in state ownership of a physical “definable asset with an appropriate fair market value and useful life,” [25] like land, a well, a water tower, or other real property.  To date, the GWSP has committed over $250 million in loans and SDI to various projects.

Given the history and evolution of the GWSP detailed below, there is good reason to consider state investment in a long-talked about study to evaluate the prospect of raising Lake Lanier by two feet to add more than 25 billion gallons of supply to an existing reservoir.  Combined with investment in aggressive water efficiency and conservation, it’s possible a deeper Lake Lanier could provide metro Atlanta with a significant layer of water security and meet other downstream needs.

Round I Update: In 2012, Round I of the GWSP simultaneously awarded $99,550,000 in loans and SDI.  One awardee included an aquifer storage and recovery (ASR) project with a lot of baggage.  Despite scoring a “zero” for need, GEFA invested $5 million in an ASR well located on the El Model Wildlife Management Area (in Baker County and Flint River basin).  Now, GEFA and consultant CH2M Hill will begin drilling monitoring wells in order to extract core samples and assess geological and hydrological conditions in the Claiborne and Clayton aquifers.  The core sampling analysis and results should be available in spring 2015.

Round II Update: In 2013, GEFA re-wrote the scoring criteria for Round II of the GWSP.  Applicants no longer had to identify a “need;” they only had to indicate “the need is significant.”  With that criteria in hand, GEFA awarded four loans totaling $38,800,000 on August 27, 2013 as a part of the Round II cycle.  For the second part of the Round II cycle, GEFA decided to rewrite the scoring criteria again but only for SDI applications.  Now, state direct investment awards do not have to result in state ownership of a physical asset – they can meet a vaguely defined “need of state significance.”  The state now believes it can take ownership of water in the form of augmented flow or a “water supply yield” from a reservoir.

On November 6, 2013, GEFA announced an intention to award up to $40 million in SDI for three water supply reservoir projects (Carroll County/Indian Creek, Paulding County/Richland Creek and Hall County/Glades), and $5 million for a coastal water supply well and desalination demonstration project on Tybee Island.  In order to determine how to disburse the $40 million for reservoirs, GEFA hired a consultant – the global firm Arcadis – to provide “overall reservoir project support consulting, validation of existing data for the projects, analyses of watershed level data associated with the projects, entitlement share support, and project cost analyses.”  In other words, Arcadis will tell GEFA what type of asset the state would acquire with SDI in the Indian Creek, Richland Creek and Glades reservoirs.

Round III: In April 2014, four communities submitted applications seeking a combined $78,700,000 million from Round III of the GWSP to build new or expand old reservoirs.  The GWSP Round III final awards were announced at the GEFA board meeting on August 26: $26 million will go to the three following projects.

Expansion and Stream Flow Augmentation: The Etowah Water and Sewer Authority (EWSA) was awarded a $10M GWSP loan.  Beginning in 2008, EWSA started the process to obtain a U.S. Army Corps of Engineers Clean Water Act Section 404 permit for the Russell Creek Reservoir expansion project (Click here to read more about the 404 permit process and for a map including seven proposed reservoirs in Georgia).  The EWSA initially asked for a $25,500,000 loan from the GWSP to expand a seventy-plus year-old Soil Conservation Service (now known as the Natural Resources and Conservation Service) reservoir originally built for flood control purposes.  As described in the GWSP application, the existing eleven acre reservoir – located in the upper reaches of the Alabama-Coosa-Tallapoosa River Basin – would be expanded into a 137-acre pump-storage reservoir with an 11.5 MGD yield and the ability to “augment flow” downstream:

“The confluence of Russell Creek with the Etowah River is approximately 1.7-miles upstream of the Authority’s Hightower Water Treatment Facility [Etowah River intake].  The Russell Creek Reservoir will be used to augment flows in the Etowah River at times of low flow in the river to allow for increased withdrawal while maintain [sic] required minimum in-stream flows.” [14]

Unneeded Reservoir: The Carroll County Water Authority (CCWA) received a $10 million GSWP loan after returning to the trough for a third time to build a more than $110 million reservoir that even they admit is not needed.  According to the applicant: “The unmet water demand for Carroll County will not be fully realized for several years.” [25] Regardless of the admitted lack of need, Carroll County initially asked for an $18,240,000 loan for the 640-acre pump-storage project.  The Indian Creek Reservoir project will dramatically expand an old SCS/NRCS flood control reservoir.

GEFA awarded a GWSP Round II loan of $9 million to buy 1,300 acres and plan for expansion of the Indian Creek Reservoir (Little Tallapoosa/Alabama-Coosa-Tallapoosa River Basin).  The applicant is also a finalist for an undetermined portion of $40 million earmarked for SDI in Round II.  CCWA’s portion remains undetermined until GEFA’s consultant, Arcadis, ‘fact checks’ the project applicants’ claims, 404 permits applications and other materials to determine what the state would obtain in return for SDI.  Perhaps the CCWA’s claim that the reservoir will augment flows at the state line during drought for the benefit of “interstate relations” is offered as a justification for SDI? [27]

A parting note of clarification for Indian Creek.  While the applicant’s cover letter implied that all downstream Alabama stakeholders approve of the Indian Creek reservoir proposal [21], the cover letter apparently neglected to note that Alabama’s state Office of Water Resources identified significant objections, questions and issues with Carroll County’s Section 404 permit application during the public comment process in March 2010.

Serial Applicant: Paulding County asked for a $25 million loan; they got $6 million.  As of 2014, the total projected cost – for the 305 acre pump-storage reservoir with an anticipated 35 MGD yield plus the 48-inch four-mile long raw water pipeline from Etowah River intake (located 8 miles downstream from Lake Allatoona) – hovers at $100 million.  The county does not have any permits to build this reservoir.  To date, Paulding County has received $60 million in GWSP monies, plus the Richland Creek Reservoir (Alabama-Coosa-Tallapoosa River Basin) is also a finalist for an undetermined portion of $40 million of Round II SDI monies.

Like every other proposed reservoir in Georgia that is in the Section 404 permit process, the Corps has asked Paulding County to revisit their population projections and reassess water need.  Presumably in light of this re-evaluation, Paulding County’s identified water supply shortfall by 2050 has dropped by thirty-seven percent.  In 2013 the county declared the 2050 shortfall would be 45 MGD, but only one year later the anticipated water supply shortfall is 28 MGD.  With fewer people expected to move into the area plus an across the board per-capita reduction in water demand, the projected shortfall will continue to fall while the project’s rising costs are passed on to a limited pool of existing rate payers.

Reinvention Equals Delay: The lack of a true purpose and need for some of these proposed reservoirs is one of the dominating story lines in the GWSP’s narrative.  For example, Indian Creek has been proposed as a tri-state water war mitigation tool.  It’s also pitched as un-needed locally, and thus available as a larger regional supply until it is needed locally.  However, selling itself now as a regional water provider with future plans to throttle back to local customers sounds like a recipe for sour intrastate relations.  Indian Creek is beginning to look like another Glades: a project that continually reinvents itself.

Hall County’s current 404 Permit application for the proposed Glades Reservoir is at least the fifth version of the project proposed to state and federal agencies since 2007.  During the summer of 2014, Hall County hit a speed bump when the Corps announced a delay in the release of a draft Environmental Impact Statement.  One of the reasons: despite seven years and millions of dollars paid to consultants, Hall County has been unable to supply the Corps with the data necessary to complete the draft EIS process.

The Bigger Lesson: Continued state investment in projects with incomplete section 404 permit applications, or projects that cannot clearly identify critical details and provide data is a waste of taxpayer money.  Furthermore, continued investment in money pits puts existing ratepayers and taxpayers on the hook for boondoggle projects.

What else might the state do with GWSP monies?  During the 2011 General Assembly session (in March), the state legislature supported a budget line-item to study expansion of water supplies including the feasibility of raising Lake Lanier’s level by two feet.  The study could answer the crucial question of what the cost-benefit analysis of gaining over 25 billion gallons of water storage might be.  The anticipated cost of the study: a paltry $2,000,000.  At the same time, the Governor’s Water Supply Program was begin designed as directed by the Governor’s January 2011 executive order.  Opponents of the study – including the Governor’s office and Joe Tanner, who is a consultant for many counties proposing new reservoirs like Glades – argued that there was no state money for such a study and state money couldn’t be used to study a Corps managed project.  After the session ended and less than eight months later, the Governor’s Water Supply Program was formally unveiled in November 2011.

Given GEFA’s ownership of multiple GWSP projects, the shifting definitions of what constitutes an asset, and the amount of money spent to date on non-existent reservoirs, it’s not inconceivable that the state could invest in a study of Lake Lanier’s capacity to meet the GWSP’s intention to provide “an adequate supply of clean and affordable water.”  Furthermore, the Governor previously asserted that Georgia would begin dredging the Savannah Harbor with or without the U.S. Army Corps of Engineers’ help.  Based on this line of thinking – and now that a state funding stream exists specifically for reservoir planning and expansion – the state should work with the Corps to initiate a Lake Lanier study to evaluate the risks and benefits of adding an additional 25 billion gallons to meet the needs of downstream communities, of lake users, and for municipal water supply.  It’s certainly worth the investment to study how that particular water supply solution could benefit Georgia and its neighbors.

-Chris Manganiello

Save Georgia’s Salt Marsh

May 28, 2014
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Georgia’s regulators and the Governor’s office eliminated a key provision that protected the state’s world renowned “Marshes of Glynn.”  They announced the policy rollback during a meeting in Savannah only miles from the salt marsh that so inspired poet Sidney Lanier.  And the meeting took place on April 22 – also known as Earth Day.

What did the Environmental Protection Division (EPD) and the Governor’s office do?  They changed the way the state will define and delineate the buffers that are responsible for protecting state waters.

Fresh water and saltwater buffers act like filters between land disturbing activity and the surface water we need to drink, fish and wildlife need to live, or boats need to float.  In general, the wider and less undisturbed the buffer is, the better the buffer is for nature protection, pollution control and wildlife conservation in fresh water and saltwater environments.

According to Georgia’s Erosion and Sedimentation Act (1975), all streams, creeks and rivers are protected by an undisturbed twenty-five foot riparian buffer of land stretching outward from each side of the waterway.  Furthermore, all trout streams have fifty foot buffers.  And per the terms of the Georgia Planning Act (1989), a one-hundred-fifty foot impervious surface setback is required on each side of a stream seven miles upstream from a drinking water supply reservoir.  Undisturbed buffers help make clean water.

How does the state measure riparian buffers and setbacks?  From the top of the bank.  Anybody who has driven to the boat ramp or walked a creek knows what the banks look like.  Streams, creeks and rivers have easily defined banks where moving water has undercut the adjacent land or has “wrested vegetation,” that is, the moving water has created conditions where most vegetation cannot grow on a bank.

What about the coastal marsh – how do you delineate a buffer in places where there is no wrested vegetation?

The jurisdictional line is defined in another key piece of Georgia’s environmental legacy: the Coastal Marshlands Protection Act (1970).  This line delineates where the marshlands end and the uplands begin.  Since 1993, EPD’s policy has stated that where there is no wrested vegetation in Georgia’s saltwater marsh, the state would measure a twenty-five foot buffer on the upland side (landward) of the “jurisdictional line.”  A former CRD director offers this simple explanation about how the coastal buffer policy previously worked in the Savannah Morning News.

The Coastal Marshlands Protection Act surfaced in the wake of a disturbing 1968 proposal by the Kerr-McGee Corporation to strip mine Georgia’s salt marsh and extract phosphate to process into fertilizer.  According to author Charles Seabrook’s book Salt Marsh, the Oklahoma-based company proposed to dig down through seventy to one-hundred-twenty feet of marsh to reach the mineral booty, and to use the overburden and dredged leftovers to fill whatever marsh remained to create ‘dry’ land for development. (Think about what south Florida’s coastal landscape looks like around Miami.)

After the plan was announced, Georgia’s Governor Lester Maddox was compelled to assemble a panel to evaluate the mining proposal.  In a golden age of medicine and technology when scientists’ research was well respected and they had influential seats at the policy making table, the final report concluded that mining would be detrimental to coastal and ocean environments.  They also recommended a state agency regulate the coast and marsh; today the Coastal Resources Division (CRD is a Department of Natural Resources’ unit) provides the recommended management as well as overseeing and permitting activities that take place atop sandbars, on the beach and in the dunes according to mandates of the Shore Protection Act (1992).

While Kerr-McGee’s 1968 proposal was shot down, other threats emerged in tandem: a pulp/paper company floated the idea of draining the marsh for a pine tree plantation and a chemical company proposed to dump contaminated soil in the marsh.

All of these dangerous coastal proposals motivated one legislator to act.  In 1968, Representative Reid W. Harris (Brunswick) – with crucial assistance from Savannah attorney Ogden Doremus, a.k.a “Mr. Environment” – introduced the Coastal Marshlands Protection Act.  The bill moved out of committee but serious opposition forced the bill to wait until 1970 before it cleared the Senate.  Gov. Maddox – backed by industrial and economic interests – threatened to veto the measure.  But he ultimately signed the bill into law – on the last possible day to do so on March 27, 1970 – in response to the mountains of letters urging him to save the marshes of Glynn and coastal Georgia.

Today, the Marshlands Protection Act governs and permits activities that take place in the salt marsh and tidal wetlands.  Since the 1990s, EPD measured the marsh buffer from the jurisdictional line as determined by CRD.  And this brings us back the EPD’s Earth Day 2014 digression.

On April 22, EPD Director Jud Turner issued a memo announcing “buffers along salt marsh boundaries will be measured from the point of wrested vegetation” where it exists, but “where evidence of wrested vegetation is not present” – as is the primary case for all of Georgia’s salt marsh from Glynn County to Wassaw Sound – there will be no protective buffer at all.

The decision to no longer require a twenty-five foot buffer between saltwater marsh and upland development is in violation of the Erosion and Sedimentation Act which requires all state waters to be protected by buffers.

The decision is a direct threat to Georgia’s half-a-million acres of fresh water and saltwater marshland.  Georgia’s marshes range from four to eight miles wide and extend the full length o four one hundred mile coastline.  Georgia’s coastline – which is unlike most Atlantic coastal regions – has the second largest amount of salt marsh in the country.  This fact means Georgia’s coast makes up an estimated one-third of all the salt marshes on the East Coast.

The Coastal Advisory Panel – an appointed body of thirty local government, NGO and academic representatives who specifically advise DNR and CRD on coastal issues – formally rejected EPD’s Earth Day decision.

Some coastal local governments have decided to “do EPD’s job,” and to pass ordinances instituting their own buffer protections for the coastal marsh.

Want to help Save Our Salt Marsh?

Attend the Sustainable Atlanta Roundtable’s “Coastal peril in Georgia” event on June 6 at Southface to hear from environmental professionals.

Please visit 100 Miles for more information on how to contact elected representatives, the Governor’s office and the EPD Director.  Ask them to save the marsh and reverse this terrible new policy.

More reading on the issue here:

-Steve Caley, “Earth Day ‘present’ from Nathan Deal’s administration threatens to destroy state’s fragile coastal marshes,” in the Saporta Report

-Dave Kyler, “More Crimes and Misdemeanors,” in Connect Savannah

-Dave Kyler, “Stunning reversal threatens Georgia’s marshes,” in SavannahNow

 

-Chris Manganiello

 

 

 

SB 213’s Passage

March 18, 2014

SB 213 – which revised the Flint River Drought Protection Act (2000) and now awaits the Governor’s signature – will now provide exactly what the bill’s sponsors and the Environmental Protection Division have said they have desired for almost two years: the ability to protect augmented flows in order to protect vulnerable aquatic life in specific areas of the Flint River basin.  And, as the AJC noted, the bill is a “far cry” from what was originally introduced.  What the sponsors – and even Georgia’s Governor – have said for months and what was written in the bill were two different things.

This incongruence – between the spoken and written word – is why SB 213 slogged its way through the legislative process.  Why else would a bill be recommitted to committee in the final minutes on Day 40 of the 2013 General Assembly’s session?  And in 2014, why would the bill get sent back for committee tinkering three more times in five weeks before getting amended again on the House floor on Day 37?  A vast majority of House members realized the legislation was overly broad and enabled the state to own water – changing water law and diminishing property rights.  But the real reason for the slog: SB 213 did not have the votes to pass the House until it was fixed.

When SB 213 was introduced in 2013, the bill was broad in scope and scale.  The bill’s stated intent – in spoken and written word – was to revise a broken piece of legislation that included a non-functional voluntary auction.  The bill included other good intentions such as targets for agricultural irrigation efficiency.  And there was much talk – but little in the bill – about protecting farmers from “EPA” lawsuits over endangered species.  Finally, the bill’s geographic limitation was defined as a generalized “Flint River basin.”  Perhaps more important, “augmentation” was not initially defined at all in the bill.

What none of the SB 213’s cheerleaders wanted to admit publically for almost two years, was SB 213’s connection to a “water exchange.”  In 2012, the Governor’s Water Supply Program funneled $4.6M to a proposed aquifer storage and recovery (ASR) project in the Flint River basin.  That scheme, originally projected to cost Metro rate-payers $1.2 BILLION to build and $100 million a year to operate, is now moving forward as a $5M “Pilot Project.”  The original plan was to provide 250 million gallons from the Flint River basin per day to Florida that would otherwise have had to come from Lake Lanier, while drying the Chattahoochee south of Atlanta.  Until March 12, 2014, SB 213 would have provided statutory protection for this expensive scheme while changing Georgia water law.  SB 213 could have been the massive ASR project’s legislative side-car, making it a tool in Georgia’s tri-state water war tool box.

On the same day the Governor endorsed SB 213 as one solution for the tri-state water war at the Georgia Water Summit, a bi-partisan coalition introduced an alternative bill (HB 1085) with 37 co-sponsors that protected Georgia farmers from Endangered Species Act law suits.  HB 1085 died in a hearing-only (non-voting) committee meeting the following day.  SB 213 opponents again offered another amendment that linked augmentation specifically to Endangered Species Act protections, but the bill’s sponsors rejected the provision.  In this course of events, SB 213’s proponents signaled they were more interested in sending large volumes of water to benefit Florida’s oysters, which are not endangered, than protecting Georgia’s threatened and endangered wildlife, farmers and property owners.

But in the final push on Day 37 (2014) – a formidable coalition of House members successfully narrowed the bill.  SB 213 still allows the EPD director to prohibit certain permittees from withdrawing water downstream of an augmentation project, however we now have a definition of what an augmentation project is for. Furthermore, augmentation projects are limited to a specific area in the lower Flint River basin for the sole purpose of maintaining minimum stream flows sufficient to protect habitat critical for vulnerable aquatic life.  These types of projects will not produce the massive quantities of water originally protected by SB 213.  As defined, augmentation will benefit vulnerable aquatic wildlife in Georgia, as is already happening in Spring Creek.

SB 213 now reads as it was sold.  And for that, all Georgians should be thankful.

-Chris Manganiello

 

 

Clean Water Is Not a Luxury

March 4, 2014

On November 26, 2013, Altamaha Riverkeeper (ARK) filed a notice of intent to sue Rayonier Performance Fibers for violating the federal Clean Water Act (CWA).  More specifically, ARK – represented by Green Law, Stack & Associates and Southern Environmental Law Center – asserts that discharges from Rayonier’s Jesup mill into the river exceed the company’s National Pollutant Discharge Elimination System (NPDES) permit limits for color and odor.

This notice of intent to file a CWA suit would be at least the second in Georgia in as many years involving an illegal discharge and NPDES permit.  The other notable action involved King America Finishing’s (KAF) illegal discharge into the Ogeechee River.  KAF eventually settled out-of-court with dozens of individual property owners (for undisclosed terms) and Ogeechee Riverkeeper.  The company agreed to spend more than $6 million to clean-up the river after operating an illegal discharge for at least five years.

What’s wrong with the Altamaha?  You can see the color from the air.  I have written about the Altamaha and Rayonier’s history previously – start here first, then read the Georgia Water Coalition’s 2013 Dirty Dozen Report, and finally read about the origins of the CWA.

Why do permits matter?  NPDES permits are required of all point-source discharges into waters of the United States, and must be renewed every five years.  While the federal Environmental Protection Agency (EPA) is primarily responsible for implementing the CWA, EPA delegates regulatory authority (i.e. permitting, enforcement, etc.) to Georgia’s Environmental Protection Division (EPD).  Rayonier’s NPDES permit expired in 2006 and has been administratively extended.  Rayonier submitted an application for a new permit to EPD in 2012.

A Forest for the Trees: Rayonier does not just turn trees into fiber; they also own, lease or manage more than 2.7 million acres of land under the trees in the U.S. and New Zealand (including about 700,000 acres in Georgia).  The company is also selling Georgia coastal property, and converting old timberland into residential, commercial and industrial properties.  On January 27, 2014 – about two months after ARK announced the intention to file suit – Rayonier officially split into two corporate identities: Rayonier, Inc. will be a timber and real estate entity; and a performance fiber entity.  ARK’s notice of intent was “not even a factor” in Rayonier’s corporate division, according to an executive quoted in the AJC.

Triple Threat: Given the toxic chemical spill in West Virginia, the toxic coal ash pond collapse in North Carolina and illegal toxic discharges in Georgia, the time has come excise undue corporate influence from the regulatory ecosystem.  Many of these cases have demonstrated that industry cannot be solely depended upon to self-report critical information after spills (Freedom Industries’ executives “did not skim far enough into” a critical internal email), manage their own disaster sites (Duke Energy initially denied a second leak), or disclose new or changed discharges (for five years).

These un-natural disasters – two of which continue to unfold – are not natural by any stretch of the imagination: each example demonstrates why regulation and robust oversight of private industry is necessary to protect clean water.  (To make matters worse, South Carolina legislators are attempting to change a state law and limit citizens’ ability to sue polluters.) The alternative – a regulatory system that serves “customers” as opposed to the public – is clearly not working.

For more information on ARK’s permit challenge, follow Do Better Rayonier.

-Chris Manganiello

Can a Coal Ash Spill Happen in Georgia?

February 17, 2014

Not unlike the answer to my last post regarding January’s economically disruptive Elk River chemical spill in Charleston, WVa., toxic coal ash has spilled in Georgia as it recently did into the Dan River in North Carolina and Virginia.  More troubling than Georgia’s past coal ash spill is the reality that another toxic spill could easily happen in Georgia’s future.  Unless we decide we don’t want that to happen.

What is coal ash?  Put simply, coal ash is a by-product of burning coal to boil water to generate steam to produce electricity.  Coal ash is highly toxic and contains arsenic, mercury, cadmium, chromium, lead, selenium and zinc.  Coal ash can be stored in a dry and a wet manner.  However, coal ash sites – particularly wet coal ash ponds – are unlined.  Unlined ponds can and do leak (14 of Duke Energy’s North Carolina ponds are leaking) meaning that coal ash sites have and will continue to contaminate ground and surface water unless they are better managed and regulated.

Furthermore, the ‘dams’ and earthen berms surrounding artificial coal ash ponds have Environmental Protection Agency (EPA) “hazard” ratings.  This means we know that many toxic coal ash pounds are at risk of failing and collapsing if they were not properly constructed or maintained.  Visit the Southeast Coal Ash Waste website to identify if a coal ash site is near you.

Consciousness Raising: In December 2008, the nation’s largest coal ash disaster occurred when the Tennessee Valley Authority’s pond in Kingston failed.  More than 1,000,000,000 (billion) gallons of liquid coal ash spilled into the Emory River.  The river bed filled with coal ash, snuffing out aquatic wildlife and swallowing up homes.  With this dramatic wake-up call, national attention has focused on reforming the national toxic coal ash regulatory framework.

The Dan: On the afternoon of February 2, 2014, a security guard patrolling Duke Energy’s retired Dan River Steam Station in Eden, N.C. noticed a drop in the coal ash pond’s level.  Upon further inspection, staff discovered a storm water pipe running under the pond and directly to the river had collapsed.  The public would have to wait more than 24-hours before learning that tons of coal ash had been discharged into the Dan River.  Estimates of the discharge now range from 30,000 to 82,000 tons of ash, and up to 27 million gallons of water flowed into the river over a ten days.  Yet another discharge was discovered on February 13.  The Dan River coal ash spill is considered the third largest in the nation, according to EPA.

This coal-fired steam plant – retired in 2012 – is six miles upstream from Danville, Va.’s municipal drinking water intake.  Danville Utilities’ authorities have asserted that regardless of the contaminates in the water column that may be entering the water treatment plant – which potentially included arsenic levels four times the state’s human health standards – the treated water delivered to its 43,000 customers is safe and clean.

On February 12, 2014, the N.C. Department of Health issued an advisory declaring that individuals should avoid contact with the Dan River and that the river’s fish and mussels are not fit for human consumption.  But anglers had already expressed skepticism about eating the fish after the spill, and others simply think Duke, N.C. agencies and EPA are “hiding things” and information about the full extent of the spill.  The news one day later – that a federal grand jury has opened an “official criminal investigation of a suspected felony” and issued subpoenas to Duke Energy and the N.C. Department of Environment and Natural Resources – suggests somebody else thinks something is indeed ‘hiding.’

Taking Coal Ash to Court: Suits levied in South Carolina against South Carolina Electric & Gas and Santee Cooper Power over coal ash management at the Waccamaw and Wateree stations resulted in agreements to remove coal ash from unlined ponds on the rivers’ banks and into lined facilities located away from the rivers.

Then in 2013, a coalition of environmental groups announced their intent to launch multiple Clean Water Act citizen suits against Duke Energy for illegal discharges from the Asheville Steam Station’s, the Riverbend Steam Station’s and the L.V. Sutton Plant’s coal ash ponds.  The state of North Carolina intervened in these cases to shield Duke from full-blown CWA suits and has proposed settlements.  The state’s proposed settlement and consent decree was already contested by the public before the Dan River breach and remain in a holding pattern.

In October 2013, Duke Energy – the nation’s largest energy utility – agreed in related suits and settlements to pay $1,800,000 to connect Flemington, N.C. to a local water utility because the community’s ground water wells had been contaminated by the Sutton Plant’s coal ash pond.  Duke also agreed to provide water to a homeowner living adjacent to the Asheville Power Station and coal ash pond.

Georgia Coal Ash: There are forty-one active and inactive coal ash impoundments – including twenty-nine coals ash ponds – in Georgia.  Two of the ponds have a “high hazard” rating and ten are considered “significant hazards.”  And at least one of these sites has already failed.  On July 28, 2002, Plant Bowen’s (Georgia Power) coal ash pond failed and discharged more than 2,000,000 pounds (218 tons) of toxin-laden coal ash into the Euharlee Creek (an Etowah River tributary), upstream of Rome’s municipal drinking water intake.

And another site – Plant Scherer (Georgia Power) in Juliette and upstream of Macon – has become a target of 123 Monroe County current and former property owners who claim toxic coal ash is responsible for off-site groundwater contamination.  Scherer – one of the nation’s largest emitters of carbon dioxide – is home to an unlined pond containing at least 5,000,000,000 (billion) gallons of toxic coal ash.

What can be done?  Federal regulators, Georgia’s coal ash site operators, and state regulators and legislators can make choices to secure toxic coal ash sites now.

First, EPA must issue long promised coal ash rules to establish federal minimum standards for coal ash management.

Second, Georgia’s legislators and regulators must develop a robust regulatory process requiring groundwater monitoring and reporting for active and inactive sites; transfer of coal ash from unlined to lined sites; liners for new ash storage facilities; emergency action plans; and inundation maps should a pond fail.

Furthermore, HB 136 (sponsored by Representative Mary Margaret Oliver) would add a definition of “coal combustion waste” and require a permit for coal ash storage in lined ponds.  However, the bill has been denied the hearing that it deserves, leaving Georgia’s rivers and communities like Juliette exposed to the toxic coal ash threats.

The consequences of the chemical spill in the Elk River and the coal ash spill into the Dan River demonstrate that cries to de-regulate industry to promote business is a losing proposition.  When a chemical spill can wreck a city’s water treatment and distribution system, and coal ash spills threaten to do the same, we should interpret regulation not as a burden but as an imperative for healthy communities and economies.

-Chris Manganiello

 

Can WVa’s Water Crisis Happen in Ga.?

January 28, 2014

If you asked folks from Charleston, West Virginia what the price of clean water is, they’d probably say priceless.  More than 300,000 customers of the publically-traded West Virginia American Water Co. (NYSE: AWK) were told on January 9, 2014 the only thing they could do with the water piped to their homes, restaurants, businesses and hotels was to flush it.  No drinking; no bathing children; no clothes washing; no hand washing after using the bathroom.  For six to ten days depending on where a customer lived.

The Governor declared a state of emergency.  The water crisis also delayed the opening day of the state’s legislative assembly, which according to this excellent New York Times story has worked hard over the years to deregulate the state’s natural resource agencies to benefit the coal industry.

Can West Virginia’s water crisis happen in Georgia?  While Georgians might think it can’t, unfortunately, it already has on at more than one occasion.

Georgia state legislators have choices right now to avoid future clean water crises.  The first would be to step away from SB 299 – a bill that would roll back safe drinking water protections.  SB 299 will negatively affect any surface water steam that provides public drinking water supplies.

And the second choice would benefit from a little history to elicit support for HB 549. This bill will require Georgia’s Environmental Protection Division (EPD) to maintain a robust emergency response program, require appropriate and timely responses to emergencies that threaten the state’s waters, and require proper public notification and coordination between the state and local communities to protect the health of our families during emergencies.

Why couldn’t West Virginian’s drink, bathe or cook with the water in their homes and businesses?  At least 7,500 gallons of two chemicals used by the coal-industry escaped from Freedom Industries’ tank farm and property, sullying the Elk River only 1.5 miles upstream from American Water’s drinking water treatment plant intake.  According to some customers, the water coming from taps smelled like licorice and was colored.  According to the Charleston Gazette, American Water is already facing lawsuits and Freedom Industry has filed for bankruptcy.  And as one columnist asked: “Why wasn’t there a plan” to respond to a spill emergency?

In a story that should sound familiar to some Georgians, West Virginia’s emergency response was bungled.  The Water Company and the chemical company had never coordinated how they might respond to an emergency.  And the Material Data Safety Sheet – an industry standard information source – provided insufficient information.  For example, nobody – not even the Environmental Protection Agency or the Centers for Disease Control – could say with certainty what level of chemical exposure an individual could safely withstand.  Hundreds of people sought medical treatment.  It took almost six hours before the order not to drink or touch tap water was issued.

A number of recent spills and threats to clean water in Georgia demonstrate the need for robust laws, regulation and emergency response.

In July 2010, the J & J Chemical warehouse went up in flames.  According to this story, the company may not have been in compliance with Department of Homeland Security.  Perhaps if the fire crew had been fully aware of what was contained within the structure, they would not have poured 700,000 gallons of water on the fire, flushing blue dye, formaldehyde and para-dichlorobenzene into Trail Creek, where all aquatic wildlife was killed, and then into the Oconee River.  Because local and state officials could not coordinate fast enough, citizens took the lead and posted signs to warn their neighbors about the spill.

And no state or industrial officials contacted the City of Waynesboro after an October 2011 spill in the heart of kaolin country threatened the municipality’s drinking water intake.

Even more recently in late 2013, the City of Thomaston shut their water intakes down days after a citizen informed the mayor of a spill and fish kill in a Potato Creek tributary.  Georgia EPD has now linked the spill-kill to Jordan Forest Products, LLC and levied a $10,000 fine on January 8, 2014.

And there is the infamous Ogeechee story: King America Finishing (KAF) maintained an unpermitted discharge into the river for five years, which was a violation of the Clean Water Act.  Drought and low flows of May 2011 (and again in 2012) caught up to the company when more than 38,000 fish died just before Memorial Day weekend.  EPD spent seventeen hours trying to contact the company and local public health officials ‘closed’ the river because they could not get information.

After three years of litigation and EPD’s mis-steps, one chapter comes to a close.  In November 2013, EPD issued KAF’s new National Pollutant Discharge Elimination Permit (NPDES) to cover all discharge lines and finalized a consent order requiring KAF to spend $1.3M on additional restoration projects.  In mid-January 2014, KAF and the Ogeechee Riverkeeper (ORK) finalized a settlement to benefit the river.  KAF will pay ORK $2.5M to fund river protection, and KAF will begin publically posting its monitoring data.  The settlement and NPDES permit are unprecedented in Georgia, according to EPD.

The history of the Ogeechee, Trail Creek, Potato Creek and Briar Creek – and of course West Virginia’s Elk River situation – should remind everybody why clean water and protecting it matters.  If we cannot protect the clean water we need to drink or bathe, our communities cannot thrive and our economies are threatened.

Georgia’s law makers and regulators should support HB 549 so what happened in West Virginia does not happen here (again).

-Chris Manganiello

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