Category Archives: Water Quality and Habitat in Virginia’s Southern Rivers

Items related to aquatic life and conditions in Virginia’s “southern rivers”: Big Sandy, Chowan, Clinch/Holston/Powell, New, and Roanoke.

Clean Water Act Jurisdiction and the “Waters of the United States” is Focus of “Clean Water Rule” Announced May 27, 2015, by U.S. EPA and Army Corps of Engineers, and Proposed for Repeal by Trump Administration in June 2017

Originally posted April 2014 following release of proposed rule in March 2014.

Updated and reposted 6/30/17 following announcement on June 27, 2017, by Trump Administration to repeal and replace the rule.

For an audio take on the Clean Water Rule, have a listen to Virginia Water Radio Episode 269 (6-8-15), available at http://www.virginiawaterradio.org/2015/06/episode-269-6-8-15-what-are-waters-of.html.

This post summarizes developments regarding the “Clean Water Rule” published by the Obama Administration in May 2015, including subsequent litigation and the proposal announced in June 2017 by the Trump Administration to repeal and replace the rule.

Overview of Legal Developments

On May 27, 2015, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a final “Clean Water Rule,” by which the agencies seek to clarify what water bodies are considered “waters of the United States” and therefore fall under the jurisdiction of the federal Clean Water Act (CWA).  The proposed rule had been published in the Federal Register on April 21, 2014 (link here).   The agencies received over one million comments on the proposed rule.

The May 27 final rule went through a 60-day public-comment period following its publication in the Federal Register, and it went into effect on August 28, 2015. On that day, however, the U.S. District Court for the District of North Dakota (Southeastern Division) stayed the regulation, pending the outcome of a lawsuit by challenging the regulation that was filed on June 29, 2015, by the states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, and Wyoming, along with the New Mexico Environment Department and the New Mexico State Engineer.  Then, on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit (located in Cincinnati, Ohio; Web site: http://www.ca6.uscourts.gov/internet/default.html) extended the stay nationwide, as part of a lawsuit against the regulation filed by 18 other states: Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin.  The Appeals Court majority wrote that they granted the stay because the petitioners (those filing lawsuit) had “demonstrated a substantial possibility of success on their claims.”  The petitioners claim that the new regulation’s distance limitations applied to tributary waters are at odds with the U.S. Supreme Court’s 2006 Rapanos decision, and that the Corps of Engineers and U.S. EPA did not include those distance limitations in its proposed rule, so that the public was not given an adequate opportunity to comment on that aspect of the regulation prior to publication of the final rule in May 2015.  The Circuit Court majority also found that “the sheer breadth of the ripple effects caused by the [new regulation’s] definitional changes” called for maintaining the status quo while litigation runs its course.

Altogether, as of October 2015 nine cases filed against the Clean Water Rule were pending in seven federal districts.

In January 2017, the U.S. Supreme Court agreed to hear the case of National Association of Manufacturers v. Department of Defense.  This case doesn’t involve the merits of the Clean Water Rule but rather questions the proper federal court venue for challenging the rule.

On June 27, 2017, the Trump Administration announced a proposed repeal of the rule, with a potential revised rule to follow at a future date.  The proposal, which will have a 30-day public comment period following its publication in the Federal Register, would reinstate the jurisdictional rule in place in 1986 and a guidance issued in 2008, following the Supreme Court’s Rapanos decision (see below).

Overview of the Content of the Rule

The approximately 300-page rule follows U.S. Supreme Court decisions in 2001 (in Solid Waste Agency of Northern Cook County [Illinois] v. United States Army Corps of Engineers et al.; click here for PDF of decision) that eliminated migratory-bird use as a sufficient stand-alone factor for isolated waters to fall under CWA jurisdiction; and in 2006 (Rapanos v. U.S. and Carabell v. U.S.; click here for PDF of decision), in which the High Court issued three different interpretations of how to determine CWA jurisdiction.  The March 2014 proposed rule (p. 2) had stated that those decisions “resulted in the agencies evaluating the jurisdiction of waters on a case-specific basis are more frequently than is best for clear and efficient implementation of the CWA.”

The main goal of the CWA, first passed in 1972, is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” It established programs to regulate discharge of pollutants, filling of wetlands, oil spills, and other activities.  The Act states that it applies to “navigable waters,” defined as “waters of the United States, including the territorial seas”; Section 404 of the Act includes wetlands in the waters where dredging and filling activities are to be regulated.  In 1986, the Army Corps of Engineers and the U.S. EPA published regulations that applied the Act to several kinds of waters that may affect traditional navigable waters, including tributaries and adjacent wetlands, and that concept has been upheld by the U.S. Supreme Court.  But many questions and legal challenges have been raised over implementation of that 1986 definition, and the U.S. Supreme Court rulings in 2001 and 2006 generated even more questions and inconsistency of implementation.

Here are some major elements of the rule, from the Executive Summary, pp. 7-27, of the document as published online on May 27, 2015, at http://www2.epa.gov/sites/production/files/2015-06/documents/preamble_rule_web_version.pdf.

The rule identifies categories of jurisdictional waters, grouped within “waters that are jurisdictional in all instances, waters that are excluded from jurisdiction, and a narrow category of waters subject to case-specific analysis to determine whether they are jurisdictional.” [p. 16, “Major Rule Provisions]

Jurisdictional waters in all instances (“jurisdictional by rule”)
1. Traditional navigable waters
2. Interstate waters
3. Territorial seas
4. Impoundments of jurisdictional waters
5. Tributaries
6. Adjacent waters.
The rule defines “tributaries” and “adjacent waters” [see pp. 18-19], categories which have been subject of much debate and litigation in the past.  The rule identifies certain waters that are excluded from the definition of “tributaries,” including ditches or gullies that flow only after precipitation and “ephemeral features that do not have a bed and banks and ordinary high water mark” [pp. 19-20].  The rule defines “adjacent waters” “based on their hydrological and ecological connections to, and interactions with,” traditional navigable waters [p. 20]. The rule aims to establish a “bright line” for where waters cease to be “adjacent,” although states may still include such waters in state protections.

Case-specific jurisdictional waters (subject to a specific analysis to determine if a “specific nexus” to a by-rule jurisdictional water exists):
7. Five specific categories of waters in specific regions (prairie potholes, pocosins, California vernal pools, Carolina and Delmarva bays, and Texas coastal prairie wetlands) [p. 22];
8. Waters within the 100-year floodplain of a traditional navigable water, interstate water, or territorial sea; c) waters within 4000 feet of the high-tide line or the ordinary high-water mark of a traditional navigable water, interstate water, seas, impoundments, or covered tributary [p. 23].

Identified exclusions [pp. 24-25; “existing” means the exclusion was already in existing regulations; “new” means the exclusion has been added in the new Clean Water Rule as “by rule” exclusions]
1. Prior-converted cropland (existing);
2. Waste-treatment systems (existing);
3. Waters and features previously identified as generally exempt, such as certain ditches not in or draining wetlands, and ditches with ephemeral flow that are not a relocated tributary, excavated in a tributary, or drain wetlands (new); 4. Groundwater (new);
5. Erosional features (new);
6. Waters that the agencies state  they did not intend to cover but which public comments about the proposed rule said might end up being included unless explicitly identified, including stormwater-control features (specifically constructed for stormwater conveyance), cooling ponds created in dry land [p. 25].

The rule notes that states and tribes may establish protections for waters not covered by the CWA, such as groundwater and certain wetlands [p. 26]. “Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their waters.”

SOURCES FOR THIS POST AND FOR MORE INFORMATION

News Items (listed in chronological order, with most recent listed first)

Trump admin moves to repeal WOTUS, E&E News PM, 6/27/17.  (E&E News PM is a product of E&E Publishing, http://www.eenews.net/; a subscription is required for online access to E&E products; trial subscriptions may be available.)

Supreme Court to hear case concerning Obama water rule, The Hill, 1/13/17.  [“The Supreme Court agreed Friday [1/13/17] to hear a case over a specific issue arising from President Obama’s Clean Water Rule — the fight over the proper federal court venue for challenging the rule.  The case, National Association of Manufacturers v. Department of Defense, does not concern the merits of the 2015 regulation, under which the Environmental Protection Agency (EPA) and Army Corps of Engineers asserted jurisdiction over small waterways like ponds and streams. It is also known as the Waters of the United States rule.  The dispute may soon become moot, since President-elect Donald Trump, who takes office in a week, has pledged to repeal the regulation at issue.”]

Wetland Studies and Solutions, Inc. (Gainesville, Va.), Waters of the U.S.: Back to Basics (for now), Field Notes, 10/14/15.

Greenwire, Panel rules against consolidating challenges to WOTUS, 10/13/15. (Greenwire is a product of E&E Publishing, http://www.eenews.net/; a subscription is required for online access to E&E products; trial subscriptions may be available.)

Jonathan Adler, Sixth Circuit puts controversial ‘waters of the United States’ (WOTUS) rule on hold, Washington Post, 10/9/15.

Greenwire, Appeals court halts WOTUS rule nationwide, 10/9/15.

Jonathan Adler, North Dakota district court blocks controversial ‘Waters of the United States’ rule (UPDATED), Washington Post, 8/28/15.

Richmond Times-Dispatch, Water rule’s impact on Virginia may be minimal, 8/28/15

Capital Press [Salem, Ore.], Army Corps memos disparage EPA over WOTUS, 8/3/15.

Greenwire, Obama admin OK’d controversial rule over experts’ objections, 7/27/15.

Greenwire, Industry, enviros alike wary of WOTUS’s mining provisions, 6/2/15.

Wetland Studies and Solutions (Gainesville, Va.,) “EPA & COE Redefine Which Wetlands and Streams are Federally Regulated,” Field Notes, 6/2/15.

PBS NewsHour, “Why farmers are concerned about EPA’s new rules on protected water,” 5/29/15, 7 min./4 sec. video, online at http://www.pbs.org/newshour/bb/farmers-concerned-epas-new-rules-protected-water/.

New York Times, Obama Announces New Rule Limiting Water Pollution, 5/27/15.

U.S. EPA, Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy, News Release, 5/27/15.  (Direct link no longer functoinal as of 6/30/17.)

U.S. EPA, EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal, News Release, 3/25/14.  (Direct link no longer functional as of 6/30/17.)

Agency Web Sites
U.S. EPA, “Clean Water Rule” Web site, https://www.epa.gov/wotus-rule.
U.S. EPA, “Summary of the Clean Water Act,” online at http://www2.epa.gov/laws-regulations/summary-clean-water-act.

Other Sources
Zygmunt J. B. Platter et al., Environmental Law and Policy: Nature, Law, and Society, 2nd ed., West Publishing Co., St. Paul, Minn., 1998.

Wills cartoon Rapanos

Cartoon by George Wills of Blacksburg, Va. (https://www.etsy.com/people/BlacksburgArt), that accompanied an article in the January 2007 issue of Virginia Water Central Newsletter (the newsletter of the Virginia Water Resources Research Center) on the 2006 Rapanos decision by the U.S. Supreme Court.  Virginia Water Central Newsletter is available online at http://www.vwrrc.vt.edu/water-central-news/.

On Virginia Water Radio for 6-26-17: Exploring the Staunton River

Virginia Water Radio’s episode for the week of June 26, 2017, is “A River Trip from Roanoke to Staunton.”  The 4 min./2 sec. episode, available online at http://www.virginiawaterradio.org/2017/06/episode-374-6-26-17-river-trip-from.html, focuses on southern Virginia’s Staunton River, a section of the Roanoke River.  The episode features an excerpt of “Exploring the Rivers,” by Timothy Seaman of Williamsburg (http://timothyseaman.com/en/).

10 Staunton River at Altavista River Park ONE Jun15 2017

Staunton River at river park in Altavista, Va. (Campbell County), June 15, 2017.

Virginia Water Radio’s is a weekly broadcast/podcast produced by the Virginia Water Resources Research Center.  The home page is http://www.virginiawaterradio.org.  Have a listen or two!

Virginia Clean Water Revolving Loan Fund – Applications for Fiscal Year 2018 Due by July 14, 2017

July 14, 2017, is the deadline to apply to the Virginia Department of Environmental Quality (DEQ) for financial assistance in Fiscal Year 2018 through the Virginia Clean Water Revolving Loan Fund (VCWRLF).  The DEQ’s Web site for the FY 2018 program is online at http://www.deq.virginia.gov/Programs/Water/CleanWaterFinancingAssistance/FY2017AnnualSolicitation.aspx.

Here is an excerpt from that Web site:

“VCWRLF applications are being solicited for projects that involve improvements to publicly-owned wastewater collection and treatment facilities, installation of publicly-owned stormwater best management practices, projects for the remediation of contaminated brownfield properties and land conservation projects.  Eligible Brownfield loan recipients are units of local government, public service authorities, partnerships or corporations, and eligible land conservation recipients are state and local governments, public service authorities, and registered nonprofit organizations.

“Special consideration may be give to projects that meet the Green Project Reserve guidelines (online as a PDF at http://www.deq.virginia.gov/Portals/0/DEQ/Water/ConstructionAssistanceProgram/Green_Project_Reserve_Info.pdf?ver=2014-03-07-182359-110).

“Finally, we are also accepting applications for Living Shoreline projects.  Local governments (which are the only eligible applicants for this program) can either apply for financial assistance in order to directly establish living shorelines themselves or establish a local government funding program for individual citizens to establish living shorelines on their properties to protect or improve water quality.  We anticipate that the [State Water Control Board] should have over $100 million in funds available for distribution during FY 2018.  Should demand for good water quality or public health related projects exceed availability, these funds may be leveraged in the municipal bond market to increase the amount of assistance available.”

The DEQ expects to present a proposed funding list to the Virginia State Water Control Board in September or October 2017.

Application details are available online at the Web site listed above.  For more information, contact Walter Gills, Va. DEQ, P.O. Box 1105, Richmond, VA 23218; phone: (804) 698-4133; e-mail: walter.gills@deq.virginia.gov.

New River PCBs are Subject of Total Maximum Daily Load (TMDL) Study in 2016-17; Draft TMDL Ready for Public Comment in May 2017; Final Public Meeting on TMDL Study Held May 10, 2017

This post updates previous posts from April 2016 and April 2017.

PCBs (polychlorinated biphenyls) in the New River in southwestern Virginia are the subject of a Total Maximum Daily Load (TMDL) process that began in early April 2016.

The draft TMDL study for New River PCBs became available in May 2017; a link to the report is available at this DEQ Web site: http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/PCBTMDLs/NewRiverTMDLPCB.aspxPublic comment on the draft will be accepted through June 9, 2017.

On May 10, 2017, the draft TMDL study was presented in a public meeting in Radford.  Information on the May 10 meeting is available at this Virginia Regulatory Town Hall link (link last checked May 11, 2017).  A Virginia Water Resources Research Center recording from the May 10 meeting is available at this link.  The recording (47 min./37 sec.) was intended to capture only the prepared remarks by Mark Richards, the DEQ staff person presenting the draft TMDL report at that meeting.  The posted audio deletes audience voices asking questions during the presentation and, for the most part, Mr. Richards’ responses to those questions.  Some of all of the visuals that were discussed during the May 10 presentation are available in the draft TMDL study (link noted above).

About 145 miles of the New, from Interstate 77 to the West Virginia line (along with several tributaries), have been under a Virginia Department of Health (VDH) fish-consumption advisory since 2004 (since 2001 for about 75 miles), when PCBs were found in fish-tissue samples.  An April 5, 2016, public meeting was held in Radford by the Virginia Department of Environmental Quality (DEQ) and Virginia Tech’s Department of Biological Systems Engineering (BSE) to describe the known history of PCB contamination in the river and the TMDL study that aims to identify the current sources and loads of PCBs in the New.  Following a public comment period through May 3, 2016, the BSE Department and a DEQ technical advisory committee developed the New River PCB study that was released in draft form in May 2017.

The federal Clean Water Act requires that a TMDL study be done whenever the level of a pollutant in a water body regularly exceeds a state water-quality standard and, consequently, the water body is identified as “impaired.”  A TMDL study identifies sources of an impairment, allocates the contribution of each source to the overall impairment, and identifies reductions needed for the water body to fall within water-quality standards for the particular contaminant.  In Virginia, state law also requires development of TMDL implementation plan following the TMDL study.

According to the DEQ (“New River Watershed Study,” April 2016, available online at http://www.deq.virginia.gov/Portals/0/DEQ/Water/TMDL/PCB/NRPCBfactsheet.pdf), PCBs “are chemicals that were used in electrical transformers and other equipment until the late 1970s and can remain in the environment for decades. … Sources of PCBs include, but are not limited to, point-source dischargers including municipal stormwater discharges, stormwater runoff from areas of known contamination, atmospheric deposition, and existing contamination in river sediments.”

DEQ information about the New River PCB TMDL is available online at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/PCBTMDLs/NewRiverTMDLPCB.aspx.

Other Sources:
Research could aid fight against PCBs in New River, Roanoke Times, 4/5/16.

Long hunt for source of PCBs in New River is to end this year
, Roanoke Times, 3/27/16.

Virginia Department of Environmental Quality, “Resources for PCB TMDLs,” online at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/PCBTMDLs.aspx.

Virginia Department of Health, “Fish Consumption Advisories/New River Basin,” online at http://www.vdh.virginia.gov/environmental-epidemiology/public-health-toxicology/fish-consumption-advisories/; and “Frequently Asked Questions about Polychlorinated Biphenyls (PCBs),” online (as PDF) at http://www.vdh.virginia.gov/environmental-epidemiology/fact-sheets-for-public-health/frequently-asked-questions-about-polychlorinated-biphenyls-pcbs/.

New River Rt 611 Wilderness Road Pulaski County Jun30 2013 USED Grouper 4-12-16

Virginia Water Quality Improvement Fund Stabilization is Focus of Stakeholder Advisory Group Convening May 17, 2017

May 17, 2017, is the date of the first meeting of the Virginia Soil and Water Conservation Board’s Water Quality Improvement Fund Stabilization Stakeholder Advisory Group.  The meeting will start at 9:30 a.m., at the State Capitol, Senate Room 3, 1000 Bank Street in Richmond.

The Virginia Regulatory Town Hall notice for this meeting is online at http://townhall.virginia.gov/L/ViewMeeting.cfm?MeetingID=25973.  According to that notice, “Item 364 of the [Virginia General Assembly’s] 2017 Appropriations Act requires the Department of Conservation and Recreation [DCR] to establish a stakeholder group to make recommendations on [the following]: (i) increasing the portion of any deposit to the WQIF reserve; (ii) limiting the portion of WQIF reserve that may be utilized; (iii) evaluating combined revenues available from the WQIF and the Natural Resources Commitment Fund in a given fiscal year; (iv) distributing funds to be deposited across a biennial period; and (v) considering the impacts on the staffing and technical assistance needs of the Soil and Water Conservation Districts.”

Virginia Code information on the Water Quality Improvement Act (which created the WQIF) is available online at http://law.lis.virginia.gov/vacode/title10.1/chapter21.1/, and information on the Natural Resources Commitment Fund is online at http://law.lis.virginia.gov/vacode/title10.1/chapter21.1/section10.1-2128.1/.

For more information about the advisory group, contact Christine Watlington, DCR Senior Policy and Planning Analyst, 600 East Main Street, 24th Floor, Richmond, 23219; phone (804)786-3319; e-mail: christine.watlington@dcr.virginia.gov.

 

National Water Quality Interactive Map Tool Released by USGS in April 2017

On April 4, 2017, the U.S. Geological Survey (USGS) announced the release of a new interactive mapper tool to show data from 40 years of water-quality monitoring, including from the National Water Quality Assessment program (NAWQA).  The mapper is available online at https://nawqatrends.wim.usgs.gov/swtrends/.

According to the mapper’s Web site, the tool shows stream trends in water chemistry and aquatic ecology (fish, invertebrates, and algae) for four time periods: 1972-2012, 1982-2012, 1992-2012, and 2002-2012.

Following is an excerpt from the USGS news release on the tool: “For the first time, monitoring data collected by the USGS and 73 other organizations at almost 1,400 sites have been combined to provide a nationwide look at changes in the quality of our rivers and streams between the 1972 passage of the Clean Water Act and 2012. …The interactive map can be used to see whether 51 water-quality constituents, like nutrients and pesticides, and 38 aquatic-life metrics, like the types and numbers of fish, macroinvertebrates, and algae, have increased, decreased, or remained the same at nearly 1,400 sites between 1972 and 2012.  …The map summarizes the first phase of the study—in which the USGS identifies streams that have been monitored consistently for long periods and reports the trends in those streams.  In the second phase, to take place over the next several years, the USGS will assess whether and where billions in investments in pollution control have been effective, identify major causes of trends in U.S. stream quality, provide details on which chemicals are increasing or decreasing, and highlight whether any drinking water sources or aquatic ecosystems are at increased risk.”

Source: First-of-its-kind Interactive Map Brings Together 40 Years of Water-Quality Data, U.S. Geological Survey News Release, 4/4/17.

New River Symposium held May 16, 2017, at Radford University’s Selu Conservancy

The 2017 edition of the New River Symposium took place on May 16 at Radford University’s Selu Conservancy, near Radford, Va.  The  biennial symposium is organized by Friends of the New River, the New River Conservancy, and the Radford University Environmental Center.  According to the organizers, the symposium aims to bring together the river’s diverse constituents and provide a forum for partnership, research, and policy development regarding the river’s ecological and cultural values.

For more information, visit http://newriverconservancy.org/events/symposium.php; or contact Rick Roth at rroth@radford.edu; Rick Van Noy at rvannoy@radford.edu; or George Santucci at george@newriverconservancy.org.

For a news account of the 2015 symposium, see River lovers gather for discussion at Radford conference, Roanoke Times, 5/20/15.

New River along Eggleston putin road Aug13 2016 ONE USED Grouper 4-3-17

New River near Eggleston, Va. (Giles County), August 13, 2016.