When it premiered in January 2009 at the Sundance Film Festival, Joe Berlinger’s documentary CRUDE opened many filmgoers’ eyes to the plight of 30,000 people from five indigenous tribes in Ecuador. These residents of what had been a beautiful, biodiverse rain forest were suffering the effects of what has become known as the “Amazon Chernobyl,” in which, they and others contend, 18 billion gallons of toxic oil waste had been dumped in their rivers and on their land. The water they drank, bathed and played in had been poisoned, and their children, siblings and parents were sick and dying in alarming numbers.

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Water nourishes every aspect of life on Earth. Most Americans take access to water for granted. The grim reality is that fresh water is getting harder to find.

When communities cannot get clean water, people are often forced to choose between dying of thirst or drinking disease-ridden polluted water. This heartbreaking situation is playing itself out right now all over the world. As water rights involve complex moral, international and legal issues, we sought out answers from an expert in the field of water rights.

Maude Barlow

Sundance Channel had the honor of interviewing Maude Barlow, who is the Senior Advisor on Water to the President of the UN General Assembly. Maude Barlow also chairs the boards of the Council of Canadians and Food and Water Watch.

The interview with Maude Barlow dealt with many environmental issues, but in part one, we will be focusing on her extensive knowledge of water rights.

Question 1: Fresh water has become a dangerously expensive commodity in some third world countries. How would you improve access to clean water?

Maude Barlow: Fresh water is indeed expensive or non-existent in many poor countries. Water should be declared a public trust, in other words, a public service that must be delivered on a not-for-profit basis to all people. If a government is too poor to deliver clean water, the World Bank must put its aid into ensuring the safe delivery of clean water and not into big for-profit private water companies as it is now doing.

Question 2: Does the U.N. do any work regarding international water rights, and if so, would you explain one of the projects related to water rights?

Maude Barlow: The United Nations is seriously considering the human right to water. The UN Human Rights Council has appointed an “Independent Expert” to study and advise it on next steps and many countries of the UN General Assembly are keen to move ahead with a resolution affirming the right to water.

Question 3: Are there any organizations that work on environmental issues, or water rights, that you could recommend to people interested in helping the cause?

Maude Barlow: There are many organizations and networks working on the environmental and human issues around water. They include the African Water Network; the Australian Water Network; the European Water Network; RED Vida (Latin America); Food and Water Watch (U.S.); and the Blue Planet Project (Canada).

Question 4: Has anything significant happened in the clean water access movement in recent months?

Maude Barlow: In recent months, the global water justice movement has continued to grow and thrive. Activists challenged the leaders at the 5th World Water Forum in Istanbul last month (March 2009) for their close ties to the water industry and worked with 25 countries who put forward a counter-declaration to the official summit declaration as the latter had refused to declare water to be a human right.

If you are interested in finding out more about water issues, and want to see a movie that might move you to tears, make sure to watch F.L.O.W (FOR LOVE OF WATER), which premieres April 21 at 10PM on Sundance Channel.

Check back for part two of the Maude Barlow interview and find out what she would do if she had $1 billion.

LOS ANGELES, California, March 19, 2009 (ENS) – In observance of World Water Day on March 22, hundreds of students from Los Angeles schools will join activists and concerned residents for a community March for Water to increase public awareness of the water crisis in California and around the world.

The march begins at LA State Historic Park on Baker Street in Los Angeles and ends three miles later at Rio de Los Angeles State Park on San Fernando Road.

A coalition of community-based organizations and environmental justice groups organized the march, including Urban Semillas, Anahuak Youth Sports Association, Green LA Coalition, Food and Water Watch, Southern California Watershed Alliance, Environmental Justice Coalition for Water, the Sierra Club and Heal the Bay.

A woman carries two water jugs on her head in the village of Maholi, Madhya Pradesh, India. (Photo by dct-pix)

Organizers say the march is three miles long, because that is the average distance that millions of people worldwide walk every day to fetch water and carry it back home. In an act of symbolic solidarity, many marchers will carry water jugs on their heads.

Students from two area high schools, two community colleges and five elementary schools will carry banners representing their schools and expressing their feelings about water.

World Water Day is an international day of observance and action to draw attention to the plight of the more than one billion people worldwide who lack access to clean, safe drinking water. World Water Day was designated in 1992 by a resolution of the United Nations General Assembly.

The United Nations estimates that if current trends continue, within 15 years, half of the world’s population is likely to face water shortages. Even relatively prosperous California is facing a crisis of water sustainability.

In Los Angeles, coalition organizers are trying to raise public awareness of the tough realities of a world where water is scarce. The average person in the developing world uses 2.64 gallons of water a day, they point out, while the average person in the United States uses between 100 and 175 gallons every day at home.

An estimated 25 percent of people from cities in developing countries purchase their water from vendors at a significantly higher price than piped water. In some cases, at the cost of more than a quarter of their household incomes.

Marchers will draw attention to water’s importance for the planet and the local environment, and urge Los Angeles residents to take action to stop the waste, abuse and mismanagement of water resources.

“It’s inspiring to see so many wanting to take action and willing to learn more about our current water crisis.” said Miguel Luna, one of the March Coalition members. “With our water future in such uncertainty, it is uplifting to see the youth ensuring participation on the issues of water, land management and ecological rehabilitation.”

The march culminates in a water fair, with live music, food and information about ways to take action.

The event is endorsed by the Office of the Mayor Antonio Villaraigosa, City Councilmember Ed Reyes, Assemblymember Kevin De Leon and State Senator Alex Padilla.

Land once underwater is exposed as Lake Shasta in northern California dries up. November 11, 2008. (Photo by Andi Hazelwood)

“California is in the midst of a crisis that threatens to cripple our economy and quality of life,” said Lester Snow, director of the California Department of Water Resources. “In this third dry year, Californians must step up water conservation efforts, and we must utilize water transfers to alleviate impacts. Yet another dry year also points to the need for long term investment in our state’s water management infrastructure.”

Late winter storms increased snowpack to near 90 percent of normal, but Snow says water storage in the state’s major reservoirs and runoff projections remain well below average.

On February 27, Governor Arnold Schwarzenegger proclaimed a state of emergency and ordered a range of actions to manage the drought crisis. The Governor urged Californians to prepare for worsening drought and requested that all urban users reduce their water use by 20 percent.

On Sunday, activities across the country and around the world will focus on supplying clean, easily accessible water to those in need.

In San Diego, the Thirsty for Change Benefit Jam Presented by UNICEF’s Tap Project and mywaterfuture.com is happening at The Belly Up, featuring Timmy Curran, Alex Woodard, and Astra Kelly. Show time 4 pm. Located in Solana Beach, The Belly Up was voted San Diego’s Best Live Music Venue.

In Seattle, a World Water Day Walk will take place on Alki Beach from 10 am to raise awareness about world water issues.

In New York City, UNICEF will host the NYC Tap Project Water Walk on March 22, a one-mile walk for young people and their families, schools and communities to help raise awareness and support for children worldwide who suffer from a lack of clean water. Participants will carry up to one gallon of water in a gesture of solidarity with those who must collect and carry water daily.

Global events include a Team Blue 6K Walk for Water Day sponsored by the Blue Planet Run Foundation. The foundation funds water projects such as rainwater harvesting, bore holes and hand pumps through its Peer Water Exchange.

For a complete worldwide list of World Water Day events with contact details, click here.

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WASHINGTON, DC, March 19, 2009) – A bill that will help bridge the multi-billion dollar annual gap between wastewater infrastructure needs and available funding is working its way through Congress.

The Water Quality Investment Act of 2009 (H.R. 1262), approved Friday by the House, renews the federal government’s commitment to clean water by authorizing $19.8 billion over the next five years for wastewater infrastructure and other efforts to improve water quality.

The centerpiece of this legislation is the authorization of $13.8 billion over five years for the Clean Water State Revolving Funds, the principal source of federal funding for meeting the nation’s wastewater infrastructure needs.

States would use such grants along with their own funds to make low-interest loans to communities and grants to Indian tribes to construct wastewater treatment facilities and related projects.

“Despite the obvious need for clean, potable water, federal funding for Clean Water SRFs has been dramatically cut in recent years, but that is about to change,” said Congressman James Oberstar of Minnesota, chairman of the House Committee on Transportation and Infrastructure.

“Investing in our wastewater infrastructure is a critical priority, both for Congress and the Obama administration, that will have a significant beneficial impact on the quality of the nation’s waters and environment, as well as the protection of public health,” he said.

Near Rochester, New York, in a Great Lakes Area of Concern, the Maplewood Combined Sewage Overflow outfall is seen at left, and Eastman Kodak King’s Landing Wastewater Treatment Plant at right. (Photo by C. Knauf courtesy Monroe County Department of Health)

“This legislation needs to be enacted quickly not only to address the nation’s staggering water infrastructure needs, but also to provide economic relief to thousands of unemployed or underemployed workers, said Oberstar. “H.R. 1262 calls for the use of products and materials that have been manufactured in America, and it could create and sustain 680,000 jobs over the next five years.”

“This bill will help make it safer to swim in our nation’s lakes, streams and rivers,” said Nancy Stoner, co-director of the Water Program at the nonprofit Natural Resources Defense Council.

“Congress has taken a step to protect public health and improve quality of life, and, if properly funded, this bill could create hundreds of thousands of jobs that can’t be shipped overseas,” Stoner said. “By including green infrastructure solutions in the bill, the House is making it clear that we can no longer afford to waste water – our most precious resource – or threaten our communities and waterways with polluted stormwater.”

“Over the past several decades, we have made significant progress in the improving the quality of our water. Unfortunately, much of this progress is now at risk,” said Eddie Bernice Johnson, a Texas Democrat who chairs the Subcommittee on Water Resources and Environment.

“Today, approximately 40 percent of rivers, lakes, and coastal waters do not meet state water quality standards, and the problem is getting worse. Based on Environmental Protection Agency estimates, without significant additional investment in our nation’s system of wastewater infrastructure, discharges into U.S. waters could reach levels not seen since 1968 – four years before the enactment of the 1972 Clean Water Act.”

“Without significant investment now,” said Johnson, “this could have dire consequences for human health, aquatic ecosystems, and our overall quality of life.”

The legislation provides $2.5 billion over five years for grants to address combined sewer overflows and sanitary sewer overflows; provides $250 million for alternative water source projects; and provides $750 million over five years for remediation of contaminated sediments in the Great Lakes areas of concern.

The measure encourages green infrastructure or low-impact development approaches to wastewater treatment to take advantage of less expensive and more efficient natural processes.

Finally, the bill ensures that there is a preference for American steel, iron, and manufactured goods in the construction and repair of wastewater treatment systems with a “Buy America” provision.

The Senate is expected to begin consideration of its version of the bill in the next few weeks.

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MONTPELIER, Vermont, February 23, 2009 (ENS) – For the second time in seven months, the Vermont Agency of Natural Resources has been handed a court order to implement stormwater regulations that will protect water quality in five Chittenden County brooks.

Environmental Court Judge Thomas Durkin last week reaffirmed his August 2008 order to the state agency to require commercial and residential property owners to obtain stormwater discharge permits for Bartlett, Centennial, Englesby, Morehouse and Potash brooks – all in urban areas.

The agency had appealed the judge’s earlier ruling in the case brought by the Conservation Law Foundation.

In his most recent ruling, Judge Durkin repeated that the federal Clean Water Act does not allow the state agency discretion to decide not to regulate properties that contribute pollution to an impaired stream.

“Whatever discretion ANR might have in this matter, it does not include the ability to decide to do nothing under the CWA,” Judge Durkin wrote.

The agency had argued in court that its stormwater cleanup strategy is a better approach than regulating polluters one by one in these watersheds.

Stormwater outfall for Bartlett Brook near the City of South Burlington, Vermont (Photo courtesy South Burlington)

The Conservation Law Foundation says stormwater pollution is acute in Vermont where the state has identified at least 17 watersheds, many of which feed into Lake Champlain, as being plagued by stormwater.

Stormwater runoff from developed areas contains many pollutants, such as sediment, phosphorus, pesticides, bacteria, metals, and hydrocarbons. Pollutants accumulate on impervious surfaces such as pavement and rooftops and are washed off during rain events and during snow melt.

Paved surfaces and piped drainage systems transport these pollutants from the watersheds to lakes, streams and rivers. Some of these pollutants directly affect aquatic life while others degrade the quality of the habitat.

Increased stormwater runoff from developed areas results in longer periods of higher in-stream flow rates which may destabilize stream channels and erode stream banks, releasing sediment.

In January, the ANR’s Department of Environmental Conservation, which is responsible for stormwater control, produced a draft report [www.anr.state.vt.us] on its progress in developing EPA-approved Total Maximum Daily Loads for Vermont’s 12 urban stormwater-impaired watersheds and in preparing water quality remediation plans for five mountain stormwater impaired watersheds.

The department is statutorily required to issue permits to implement these TMDLs and plans by January 2010, but the report says state government needs three more years to develop a plan to restore the polluted urban streams.

“It is crucial to recognize that there are no national models of TMDL implementation plans of the scale, nature and cost being demanded of the agency,” the report states.

To date, the department has estimated that it will cost over $65 million to remediate the five urban watersheds – Potash, Centennial, Englesby, Morehouse, and Bartlett Brooks – which, adjusted for the rate of inflation, could be as much as $75 million by the year 2013.

In order to have any chance at successful implementation of the TMDLs, the report states, a federal funding program is critical.

“Currently, there is no federal program with sufficient resources to fund implementation of these TMDLs,” according to the department’s report. “Neither the state nor local communities can absorb the costs of such a program.”

Warren Coleman, general counsel with the ANR, said the agency might appeal the ruling to the Vermont Supreme Court or ask the court for more time to implement the requirements of the Clean Water Act.

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RICHMOND, Virginia, February 17, 2009 (ENS) – A federal appeals court Friday reversed a lower court ruling that limited the controversial coal mining practice called mountaintop removal.

In mountaintop removal coal operations, the peaks of mountains are blasted away with explosives to expose coal seams and the waste materials are dumped into streams, causing what the plaintiff environmental groups claim is irreversible ecological damage.

In a victory for the coal industry, a panel of the U.S. Fourth Circuit Court of Appeals ruled 2-1 that U.S. District Judge Robert Chambers erred in his March 2007 decision that required full consideration of the environmental effects of mountaintop removal and slowed the issuing of new permits.

Judge Chambers had ruled that the U.S. Army Corps of Engineers violated the Clean Water Act in issuing permits for four mountaintop removal coal operations.

The appeals court concluded that Judge Chambers did not properly defer to the Corps’ interpretation of its own rules when granting Clean Water Act, CWA, permits for the coal mines.

“In matters involving complex predictions based on special expertise, a reviewing court must generally be at its most deferential,” wrote Judge Roget Gregory on behalf of himself and Judge Dennis Shedd.

Judge M. Blane Michael dissented from parts of the decision that found the Corps had rightly concluded the mining operations in question would cause no significant environmental degradation.

“Rather than basing its decision on the (binding) language of the regulations,” Judge Michael wrote, “the majority focuses instead on the Corps’ compliance with an internal guidance document that is at odds with the regulations’ clear requirements. The effect is to completely undermine the goal of mitigation: replacement of what is being lost.”

“Because the Corps has offered no basis on which to conclude that the environmental impacts of the valley fill projects as mitigated will be insignificant,” Judge Michael wrote, “this court should reject the mitigation as inadequate under the CWA and NEPA [the National Environmental Policy Act].”

Catenary Coal Company’s mountaintop removal operation on Kayford Mountain, West Virginia. January 2006. (Photo by Vivian Stockman courtesy Ohio Valley Environmental Coalition; flyover courtesy SouthWings)

The case was originally filed by Ohio Valley Environmental Coalition, Coal River Mountain Watch and the West Virginia Highlands Conservancy against Aracoma Coal Company, a subsidiary of Massey Energy, and four others, and the U.S. Army Corps of Engineers. A clutch of mining companies filed briefs in support of the defendants.

Environmental groups say the appeals court decision will allow up to 90 more mountain peaks to be removed by coal mining operations.

They argue that this form of mining poisons drinking water, lays waste to wildlife habitat, increases the risk of flooding and wipes out entire communities.

“Today the coal industry – aided by the Bush administration – is allowing our water to be poisoned,” said Judy Bonds of Coal River Mountain Watch. “Tomorrow it will be the East Coast’s water supply as the mining discharges will reach downstream water sources.”

“Aside from the people, the mountains and streams of West Virginia are two of our greatest assets that should be protected fervently for the benefit of future generations,” said Janet Keating, executive director of the Ohio Valley Environmental Coalition.

“We believe the decision is wrong on the law and the science,” said Steve Roady, Earthjustice attorney who represented the environmental groups. “This fight is not over until mountaintop removal mining is over. We will continue to litigate and in addition, the new administration must take immediate steps to curb the terrible practice of mountaintop removal mining and undo the mistakes of the past.”

In December 2008 the Bush administration repealed a rule requiring buffer zones around streams where wastes from mountaintop removal could not be dumped.

With repeal of the rule, coal companies are now able to dump tons of mining waste into streams without violating the Clean Water Act.

“Either Congress or the Obama administration need to reinstate the Stream Buffer Zone rule and to pass the Clean Water Protection Act,” said Tierra Curry, conservation biologist with the Center for Biological Diversity. “But better yet, mountaintop removal should be prohibited and the burning of coal immediately phased out to save the planet from dangerous climate change.”

Since mountaintop removal coal mining began in 1970, an estimated 1.5 million acres of hardwood forest have been lost, over 470 mountaintops have been blasted, and 1,200 miles of Appalachian streams have been buried.

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WASHINGTON, DC, January 21, 2009 (ENS) – In one of the final acts of the Bush administration, the U.S. Environmental Protection Agency has announced that it will set “water quality standards for nutrients” for all Florida surface waters. The standards will apply to concentrations of the agricultural nutrients nitrogen and phosphorus in state waters.

The EPA has issued a formal determination under the Clean Water Act that “numeric” nutrient water quality criteria are necessary in Florida.

“We are taking the significant step today of requiring numeric nutrient standards for water quality,” said Benjamin Grumbles, EPA’s assistant administrator for water, making the announcement on Friday. “We look forward to working closely with the state to develop improved standards that will accelerate the protection and restoration of Florida’s waters.”

Grumbles said numeric nutrient criteria will improve Florida’s ability to address nutrient pollution in a timely and effective manner.

Excess nitrogen and phosphorus levels, known as nutrient pollution, in waterbodies can cause harm to aquatic ecosystems and threaten public health.

Nutrient pollution can lead to water quality problems such as harmful algal blooms, low-oxygen dead zones in water bodies such as the Gulf of Mexico and declines in wildlife and wildlife habitat.

Florida’s 2008 Integrated Water Quality Assessment shows that 1,000 miles of rivers and streams, 350,000 acres of lakes, and 900 square miles of estuaries are impaired by nutrients. The actual numbers are likely higher, as many waters that have yet to be assessed may also be impaired.

Black algae bloom and sewage in Florida’s St. Lucie River, April 2008 (Photo by William Djubin)

While recognizing that local governments in Florida have improved wastewater treatment and stormwater management and some growers have implemented best management practices for nutrient control, the EPA’s January 14, 2009 determination letter states that poor water quality in Florida is “likely to worsen” without federal action.

In the determination letter, the EPA notes that the Florida Department of Environment Protection has spent “over $20 million in collecting and analyzing data” but has yet to develop numeric standards.

The EPA letter states that it “expects to propose numeric nutrient criteria for lakes and flowing waters within 12 months, and for estuaries and coastal waters, within 24 months.” This timeline hands these tasks on to the incoming Obama administration.

Since 1998, the EPA has been encouraging states to adopt their own numeric and narrative water quality criteria for nutrients, which EPA would then either approve or send back for revision.

“EPA recognizes Florida as a national leader in managing nutrient pollution but more needs to be done,” said Grumbles.

Mike Sole, secretary of the Florida Department of Environment Protection said he accepts that Florida has not adequately controlled the runoff of nitrogen and phosphorus into state waters.

“The State of Florida recognizes that more needs to be done to address nutrient pollution in our rivers, streams, lakes and estuaries, and these actions will help our state and all of our stakeholders prevent and better manage sources of nitrogen and phosphorus from entering our waters,” said Sole.

EPA published recommended nutrient criteria for most streams and lakes across the country in 2001. A combined strategy of EPA, state, territorial, and tribal partnership supported by technical assistance was intended to jumpstart progress on what the EPA calls “a difficult and challenging problem.”

Some states and territories have established numeric standards for priority waterbodies. Others are in the process of collecting data and preparing to develop them. Still others are in the earlier stages of planning and deciding which standards development approach will work best for them

In 1998, only 13 states had any numeric standards at all, either for selected, high priority waterbodies or for entire waterbody types.

As of December 2008, 25 states have developed some numeric standards, but the other 25 states still have no numeric standards at all for nutrient pollution.

Grumbles said the EPA explects Florida to accelerate its efforts to adopt numeric nutrient criteria into state regulations.

The EPA itself is under court order to improve the state nutrient pollution program.

The federal agency has been subject to a series of adverse court decisions ruling that it has been derelict in protecting Florida’s water quality, particularly as it affects the Everglades.

The most recent court decision takes EPA to task for violating the same Clean Water Act that it is supposed to administer.

On July 29, 2008, Miami U.S. District Judge Alan Gold found that the federal agency had shirked its duty to enforce basic water quality standards and, in so doing, “violated its fundamental commitment and promise to protect the Everglades” and “acted arbitrarily and capriciously.”

In July 2008, five environmental groups filed a lawsuit to compel the EPA and the state of Florida to set numeric limits on the excess nutrients.

“Unfortunately, it is common knowledge in South Florida that EPA regional managers will do everything possible to accommodate the state and the only way to get them to enforce the Clean Water Act is to sue them, which is a very sad commentary,” said Ann Hauck of the Council of Civic Associations, based in Lee County, Florida.

“The bottom line is that the Everglades continues to deteriorate,” said Hauck immediately following Judge Gold’s ruling. “According to EPA Region 4’s own recently released Everglades Assessment Report, the area of the Everglades negatively impacted by discharges from the Everglades Agricultural Area has increased under the current Region 4 management.”

Click here [www.ens-newswire.com] to see previous ENS coverage of this issue.

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SAN JUAN, Puerto Rico, January 15, 2009 (ENS) – For discharging pollutants into a creek that flows to the Caribbean Sea, a Shell petrochemical company in Puerto Rico has agreed to pay a $1,025,000 penalty and spend at least $273,800 enhancing its pollution controls and monitoring to remedy the Clean Water Act violations.

The agreement between the federal government and Shell Chemical Yabucoa, Inc. of Puerto Rico is set forth in a proposed consent decree filed Monday by the U.S. Department of Justice in the Federal District Court for the District of Puerto Rico, together with a complaint detailing Shell’s recent violations.

“This agreement marks a solution to a longstanding series of serious violations,” said U.S. EPA Regional Administrator Alan Steinberg from his office in New York. “Not only is Shell paying for these violations with its checkbook, it is taking steps to avoid future problems.”

Shell’s facility, which the company purchased from Puerto Rico Sun Oil, LLC in 2001, has a permit from the EPA to discharge treated stormwater, process wastewater and sanitary wastewater under the National Pollutant Discharge Elimination System.

The facility was not in compliance with its pollution discharge permit when Shell purchased it.

EPA and Shell agreed on steps the company had to take to bring the facility into compliance after the purchase was made.

But the federal agency said in its complaint that Shell failed to fulfill the agreement. Instead, the company violated the Clean Water Act by discharging pollutants in excess of permit limits, discharging pollutants into Santiago Creek and the Caribbean Sea at unpermitted locations, failing to report discharge data, and lacking adequate operation and maintenance of a discharge pipe into the Caribbean Sea.

Shell shut down petrochemical operations at the facility in July 2008, but continues to use its loading and unloading docks and tank farm.

In addition to paying the million dollar penalty, under the consent decree, Shell now must sample contaminated stormwater that is discharged into a flood control pond at the facility.

The company must install and operate a new rain gauge, which will provide data to operate a water treatment unit during wet weather.

Shell must also dredge a flood control pond to maximize its storage capacity and inspect a pipeline that had ruptured every six months to ensure no new ruptures have occurred.

The company must develop a drainage map of the area around the facility, conduct a hydrology study of the stormwater collection systems and the flood control pond and also conduct an engineering study to bring the facility’s stormwater discharges into compliance.

Finally, while the petrochemical operations are shuttered, Shell must implement best management practices for the facility’s stormwater collection systems and amend the facility’s stormwater pollution prevention plan and submit the plan to EPA and the Puerto Rico Environmental Quality Board.

And, if Shell restarts petrochemical activities at the facility, the company has agreed to install a 1.34 million gallon storage facility for contaminated stormwater.

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DALLAS, Texas, January 9, 2009 (ENS) – An Oklahoma pipeline company will pay the federal government $3.3 million for spilling a large amount of jet fuel into a Texas creek in 2007.

The Explorer Pipeline Company of Tulsa has agreed to pay the civil penalty to resolve an alleged violation of the Clean Water Act stemming from a July 2007 spill of over 275,000 gallons of jet fuel from its interstate pipeline at a location near Huntsville, Texas.

The government complaint, which was filed on October 2, 2008 in District Court for the Southern District of Texas, alleges that Explorer discharged oil into navigable waters of the United States in violation of the Clean Water Act, the Justice Department and U.S. Environmental Protection Agency announced today.

Explorer owns and operates a 1,400 mile pipeline system that transports gasoline, diesel fuel and jet fuel from the Gulf Coast across the Midwest to Chicago, serving 70 population centers in 16 states.

On July 14, 2007, Explorer’s 28-inch interstate refined petroleum products pipeline ruptured near Huntsville about 70 miles north of Houston and jet fuel spilled onto the surrounding area and into nearby Turkey Creek.

Turkey Creek flows to the Trinity River at the upper reaches of Lake Livingston.

Explorer Pipeline CEO Tim Felt said at the time that the leak occurred in a horse pasture. “Some product went into the creek bed, but response teams on site successfully blocked the product from going further downstream,” he said.

In responding to the spill, Explorer replaced the section of pipe that ruptured, completed cleanup of the impacted waters and adjoining shorelines, is cooperating in a joint federal and state natural resource damage assessment, the two federal agencies said.

A section of the Explorer pipeline, not the section where the 2007 leak occurred (Photo courtesy Explorer Pipeline Corp.)

The company has also begun additional assessment and followup work under a Corrective Action Order issued by the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration.

“Oil spills into our nation’s waters endanger public health and the environment and warrant concerted enforcement efforts,” said Ronald Tenpas, assistant attorney general for the Justice Department’s Environment and Natural Resources Division. “Today’s settlement achieves an appropriate result and furthers our enforcement mission.”

“This settlement is the result of coordination and cooperation between a number of federal and state entities. EPA is committed to working with its state and federal partners to ensure a strong water protection program,” said Richard Greene, EPA Regional Administrator.

The $3.3 million penalty paid for this spill will be deposited in the federal Oil Spill Liability Trust Fund managed by the National Pollution Fund Center.

The Oil Spill Liability Trust Fund is used to pay for federal response activities and to compensate for damages when there is a discharge or substantial threat of discharge of oil or hazardous substances to waters of the United States or adjoining shorelines.

The proposed consent decree, lodged in the Southern District of Texas, is subject to a 30-day public comment period and court review and approval. View a copy of the consent decree at: www.usdoj.gov.

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CINCINNATI, Ohio, January 7, 2009 (ENS) – Environmental groups today celebrated their victory as an appeals court vacated a U.S. Environmental Protection Agency rule that has allowed pesticides to be applied to U.S. waters without a Clean Water Act permit.

On November 27, 2007, the EPA issued the final rule, which states that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, are exempt from the Clean Water Act’s permitting requirements.

The Clean Water Act regulates the discharge of pollutants into the nation’s waters by, among other things, requiring entities that emit pollutants to obtain a National Pollutant Discharge Elimination System, NPDES, permit.

For nearly 30 years before adoption of the rule, pesticide labels issued under the FIFRA were required to contain a notice stating that the pesticide could not be “discharged into lakes, streams, ponds, or public waters unless in accordance with an NPDES permit.”

Two different groups of petitioners, one representing environmental interest groups and the other representing industry interest groups, for different reasons opposed the rule as exceeding the EPA’s interpretive authority.

The EPA defends the rule by arguing that the terms of the Clean Water Act are ambiguous and that the rule is a reasonable construction of the Clean Water Act.

In their decision, a three-judge panel of the 6th Circuit Court of Appeals wrote, “We cannot agree. The Clean Water Act is not ambiguous. Therefore, we hold that the EPA’s Final Rule is not a reasonable interpretation of the Act and vacate the Final Rule.”

This farmer sprays his vegetables with pesticide from a boat. (Photo by the Guo Project)

“The decision today is a victory for clean water, and for fish and wildlife,” declared Charlie Tebbutt, Western Environmental Law Center attorney and lead counsel for the environmental organizations and organic farms that challenged the rule.

The organizations bringing the case include Baykeeper, National Center for Conservation Science and Policy, Oregon Wild, Saint John’s Organic Farm, Californians for Alternatives to Toxics, California Sportfishing Protection Alliance, Waterkeeper Alliance, Environment Maine, Toxics Action Center, Peconic Baykeeper and Soundkeeper.

“This decision is another in a long line of rebukes to the Bush administration policies that overstepped their statutory authority and to the chemical manufacturers who peddle their poisons without concern to the effect on human health and the environment,” said Tebbutt. “We look forward to working with the new EPA to protect the environment rather than the chemical industry.”

The industry petitioners were the Agribusiness Association of Iowa, BASF Corporation, Bayer CropScience, CropLife America, Delta Council, Eldon C. Stutsman, Inc., FMC Corporation, Illinois Fertilizer & Chemical Association, The National Cotton Council of America, Responsible Industry for a Sound Environment, Southern Crop Production Association, and Syngenta Crop Protection, Inc.

With the intention of broadening the EPA exemption, they argued that the EPA rule is “arbitrary and capricious” because it treats pesticides applied in violation of the FIFRA as pollutants, while it treats the very same pesticides used in compliance with the FIFRA as non-pollutants.

The court denied their claim and ruled that pesticide residues and biological pesticides constitute pollutants under federal law and therefore must be regulated under the Clean Water Act in order to minimize the impact to human health and the environment.

“This decision will help ensure, in communities across the country, that aquatic pests are addressed in ways that protect both water quality and the public health,” said Chuck Caldart of the National Environmental Law Center, one of the attorneys representing the plaintiffs.

“We’re thrilled by the court’s decision – particularly in providing clarity on the aerial applications of pesticides over navigable waters for mosquito control,” said Peconic Baykeeper Kevin McAllister. “Ensuring that the required discharge permits have been obtained provides for greater protection of our water resources.”

“Time and again during these past eight years EPA has walked into federal courts and tried to defend absolutely indefensible rules like the one vacated today,” said Waterkeeper Alliance Legal Director Scott Edwards. “And time and again they’ve been sent back to the drawing board to rewrite these unlawful rules. Hopefully, EPA’s days of pandering to industry and other polluters and wasting taxpayers dollars in illegal rulemaking are drawing to a welcome close.”

“This is a significant victory for our nation’s waters. More than eight million pounds of pesticides are applied each year in the Bay Area alone,” said Sejal Choksi, program director for San Francisco Baykeeper. “These toxic chemicals enter our creeks harming numerous species of fish, frog and other aquatic life and will now be regulated under the Clean Water Act.”

“Pesticides have been documented as the most pervasive group of toxic pollutants in our waterways. This decision is a significant step forward in protecting and restoring our seriously degraded fisheries,” said Bill Jennings, chairman and executive director of the California Sportfishing Protection Alliance.

Steve Pedery, Oregon Wild conservation director, said, “When it comes to toxic pesticides and their effects on our rivers and salmon, we need to be certain that good science is being used and those resources are protected. This ruling is a victory for clean water and fish, and a victory for Americans who care about healthy rivers and streams.”

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HONOLULU, Hawaii, January 6, 2009 (ENS) – The U.S. Environmental Protection Agency today issued final decisions to not renew the City and County of Honolulu’s variances exempting the Sand Island and Honouliuli Wastewater Treatment plants from full secondary treatment requirements.

The decision forces the city to upgrade both plants to bring them into compliance with federal laws. City officials have said these upgrades could cost more than $1.2 billion.

The federal agency has concluded that the discharges from the two plants do not meet the Clean Water Act’s conditions for renewed variances from requirements which apply to most of the nation’s municipal sewage treatment plants.

The discharges from the two plants do not meet all applicable water quality standards. Neither of the plants’ discharges protect recreational use or marine life in the vicinity of the ocean outfalls. As a result, the two plants do not qualify for renewed variances.

“This action will ensure that residents and visitors using Hawaii’s ocean waters are protected from inadequately treated sewage,” said Wayne Nastri, the EPA’s administrator for the Pacific Southwest region.

“We will work with the city on a realistic schedule to upgrade its two largest wastewater plants, taking into account the other priorities for improvements to Honolulu’s wastewater system,” Nastri said.

The city’s Sand Island plant, located in Honolulu, and the Honouliuli plant, located in Ewa, were both operating under variances from secondary treatment. With the final decision to not renew the variances, both plants will be required to upgrade to full secondary treatment.

Honolulu’s Sand Island wastewater treatment plant (Photo courtesy Parsons)

Work is already underway at both treatment plants to improve wastewater handling.

The Sand Island plant handles wastewater from the city of Honolulu and the resort area of Waikiki. The Honouliuli plant receives wastewater from the rest of the island of Oahu. The island’s total population now stands at more than 905,000 residents, and Oahu hosts more than 485,500 visitors a month, according to data compiled by the state of Hawaii.

Honolulu Mayor Mufi Hannemann and the City Council have been aware of the possibility that the EPA might not renew the permit variances since 2005 and have held several public meetings to address the upgrades that might be needed at the two plants.

Mayor Hannemann said in August 2007, “To upgrade these two plants to full secondary treatment, the city will need to expend an estimated $1.2 billion for construction at the facilities. This expense doesn’t include the increased cost to operate and maintain the expanded plants nor does it include the additional energy consumption and greenhouse gas emissions of secondary treatment.”

“Providing full secondary treatment at Sand Island and Honouliuli wastewater treatment plants will drive monthly residential sewer fees as high as $300 in less than 20 years,” he warned.

In reaching these final decisions, EPA considered nearly 600 comments received in writing and presented verbally at two public hearings.

Written responses to all comments received have been posted on EPA’s website. In response to these comments, EPA made modifications to tentative Decision Documents released in 2007, but these changes did not alter the overall conclusions that the two plants do not qualify for renewed variances.

Primary treatment generally involves screening out large floating objects, such as rags and sticks, removing grit, such as cinders, sand and small stones, and allowing wastewater to settle, followed by the removal of collected solids.

When secondary treatment is used, primary-treated wastewater flows into another facility where a large portion of the organic matter in the wastewater is removed by making use of the bacteria in the sewage. There are a variety of different biological treatment techniques that allow the bacteria to consume most of the waste’s organic matter.

The federal Clean Water Act generally requires municipal wastewater treatment plants to use both primary and secondary treatment. Amendments to the Act in 1977 allow for variances from secondary treatment for marine discharges, provided the plant meets water quality standards and other specific criteria as part of section 301(h) of the act.

Nastri said many coastal cities that once sought variances from secondary treatment, especially in areas where there is heavy recreational beach use, have chosen to upgrade their treatment plants to meet Clean Water Act requirements without variances.

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