Archive for the ‘clean water act’ Tag

Fracking Paranoia   2 comments

Hydraulic fracturing has been around for more than 60 years. Despite that length of time, fracking has received much negative attention due to misreporting and dramatic exaggerations. Much of the public’s concern over hydraulic fracturing has been over the possibility of contaminated drinking water, the chemicals used in fracking, the potential to create earthquakes, and waste-water management. Such concerns do not take into account the federal and state laws and regulations that address these very issues. So, let’s look at the myths and the facts.

Myth #1: Hydraulic fracturing threatens underground water sources and has led to the contamination of drinking water.

FACT: Hydraulic fracturing is subject to both federal and state regulations. There have been NO instances of fracking causing contamination of drinking water.

Groundwater aquifers sit thousands of feet above the level at which fracking takes place, and companies construct wells with steel-surface casings and cement barriers to prevent gas migration. Studies by the Environmental Protection Agency (EPA), the Groundwater Protection Council, and independent agencies have found no evidence of groundwater contamination. In May 2011, then-EPA Administrator Lisa Jackson stated before the U.S. House Oversight and Government Reform Committee that “I am not aware of any proven case where the fracking process itself affected water although there are investigations ongoing.” Three of those investigations are in Texas, Wyoming, and Pennsylvania, and thus far the EPA has found no evidence of contamination.

Although previous EPA analysis of hydraulic fracturing found the process to be safe, the EPA has announced plans to publish a full study that demonstrates a lack of safety. The non-profit technology research and development organization Battell analyzed the EPA’s “Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources” and highlighted concerns, including cherry-picked data, lack of peer review, poor quality control, and a lack of transparency.  Wow, I’m so surprised that the EPA is involved in this. Aren’t you?

Myth #2: The chemicals used in the fracking process are foreign chemicals that industry hides from the public.

FACT: Fracking fluid, which is primarily sand and water, uses a small percentage of chemicasl that have common household applications and are regulated by the states and federal government.

The fluid used in hydraulic fracturing is 99.5 percent water and sand. The 0.5 percent of additives (typically between three and 12 different chemicals) depends on the composition of the shale formation that varies by region and by well. The combination of additives function to dissolve minerals, prevent bacteria growth and pipe corrosion, minimize friction, and keep the fractures open or propped up. All chemicals used in the fracking process have common applications from swimming-pool cleaners and laundry detergents to cosmetics, and even ice cream (that one is polypropolene glycol which is also used as an anti-freeze agent in home heating distribution pipes). None of these chemicals is hidden from the public, and federal law stipulates that a company must provide detailed chemical information sheets (MSDS) to emergency personnel in case of an accident. While states that have hydraulic fracturing laws have their own stipulations for chemical disclosure, the U.S. Department of Energy, in collaboration with the Groundwater Protection Council and industry, created the website  The site provides a full list of chemicals used in the fracking process and companies voluntarily disclose the chemical makeup for specific wells across the country. FracFocus allows users to search wells by operator, state, and county.

Myth #3: Waste-water from hydraulic fracturing is dangerous and unregulated.

FACT: Companies mostly recycle the “waste” from hydraulic fracturing, but they also dispose of waste-water using many different methods, all of which are compliant with existing federal and state laws.

Companies typically use around 4 million gallons of water to fracture a well. That’s about what a golf course in Texas uses in a week. I’m not saying the Texas golf courses aren’t wasting water. It’s just a comparison, since millions of gallons is hard to envision. Fracking companies use water from lakes, rivers, or municipal supplies. Much of that water remains in the ground; about 15-20% of the water returns to the surface by flowing back through the well head. The flowback water contains the chemicals used in the fracking process and can also collect other naturally harmful substances in the ground. This water is never used for drinking and the disposal is subject to federal and state regulations. States have different regulations for disposal, and companies employ a variety of methods including temporary storage of waste-water in steel tanks or contained pits. More companies are recycling or reusing the flowback water because it makes both economic and environmental sense. Other disposal methods include storing waste-water underground in injection wells that states regulate individually, and the EPA regulates under the Safe Water Drinking Act. The demand for waste-water disposal and recycling is creating opportunities for new companies with emerging technologies to treat waste-water.

There have been concerns that treating waste-water at sewage treatment plants that discharge into rivers supplying drinking water would contaminate drinking water with radioactive material. Pennsylvania’s Department of Environmental Protection found levels of radioactivity well within federal and state standards. Norm Zellers, manager of the Sunbury Generation treatment facility in Synder County, Pennsylvania, emphasized that “[y]ou can have more radioactivity on a bunch of bananas in the store or on a granite countertop.” Waste-water management is another aspect of the fracking process that has been well regulated by existing federal and state laws, and the increased demand for waste-water treatment has driven the process to be cleaner and cheaper.

Myth #4: Fracking causes earthquakes.

FACT: The fracking process itself does not cause earthquakes. In rare instances, the use of underground injection wells has caused tremors. Induced seismic activity from underground energy activities is not a new phenomenon and has been closely monitored by the Department of Energy.

After a series of small earthquakes that range from 2.1 to 4.0 on the Richter scale in Ohio and Arkansas near oil and gas sites, many have raised concerns about future tremors resulting from hydraulic fracturing, but the fracking process itself did not cause these earthquakes. The use of injection wells, an efficient and cost-effective way to dispose of briny waste-water, produced the seismic activity. Instances of seismic activity are rare; out of 30,000 injection wells, there have only been eight events of induced seismic activity—none of which caused significant property damage or injury. Fairbanks Alaska experiences between 50-100 earthquakes a WEEK in that range. Most of us hardly notice a quake of less than Magnitude 4. Induced seismicity does not occur only from oil and gas extraction. A recent National Research Council study highlights the fact that geothermal activities (capturing and using heat stored in the earth’s core) have caused relatively small earthquakes (some felt, some not) at more frequent rates from far fewer projects. The study also warns that continuously injecting carbon dioxide at high pressures (carbon capture and sequestration from coal plants) could induce earthquakes of higher magnitudes.

Seismic activity as a result of underground activity is also not a new phenomenon. The U.S. Department of Energy has been observing and monitoring induced seismic activity from energy-related activities since the 1930s. While companies that induce seismic activity should be liable for any damage they cause, calls for bans of hydraulic fracturing or the use of underground injection wells are unfounded.

So, despite the paranoia in some sectors of the population concerning hydraulic fracturing, there is really no more risk associated with the process than there is with any other resource-extraction process.



Two Sides to Pebble   1 comment

If you post a balanced review of the Pebble Mine project, you are going to get some attention. The following is from some folks claiming to be Alaskans who oppose Pebble Mine. Pebble Mine is not without controversy and there are many Alaskans who oppose it — some of them quite irrationally.

“In poll after poll going back several years right up to the present, a majority of ALASKANS oppose this foreign-based Pebble Partnership and their proposed mine. Forget about all your boogeymen – the EPA, liberals, environmentalists, tree-huggers, anti-growth groups, etc. ALASKANS oppose this project, and we oppose it for a long list of reasons. Only someone who just plain doesn’t understand Alaska would compare our land mass with that of anything in the lower 48. A lot of this land is Native-owned, for starters. Also, the way our watersheds work – and the sheer acreage they cover and the anadromous fish runs they support, are not even remotely comparable to the water systems in the states referred to in the above article. You just plain can’t compare the situation up here with Texas.
Rather than post these pro-Pebble talking points, you might want to educate yourself as to why so many Alaskans oppose this mine. In many cases, we’re the very same Alaskans who are fine with Red Dog and other ventures. You might also want to study up on why the highest percentage of those opposed to Pebble is right in the very region this mine will be located. The lack of balance in your article is startling. We find it amazing that anyone is buying the Pebble talking points so thoroughly hook, line and sinker. An easy Google search will support the polling data we refer to.”

I was born here, raised here by parents who have been here a very long time, and my children plan to make their lives here as well. My folks came and stayed when services were few and far between, back when Anchorage was smaller than Fairbanks. Is that Alaskan enough for you?

Polls are all over the place with Pebble, but most show opposition by at least a bare majority. Of course, most of those polls have been conducted in Anchorage by media consultant Michael Dubke using a pool so small that the results are not trustworthy — seriously, one of the polls only spoke to 130 respondants. It was later revealed that Michael Dubke was far from neutral on the Pebble Project. In 2008, environemntal groups and some big-money highrollers who own private lodges on Lake Illiamna bankrolled an initiative on the August ballot. The Alaska Clean Water, Measure 4 received most of its funding from Bob Gillam, one of the wealthiest men in Alaska, who was strangely also invested in one of the Pebble Partnership’s subsidiaries. Of course, that makes me wonder. What possible reason could a very wealthy man like Mr. Gillam have for playing both ends against the middle? And can you really trust poll results from Michael Dubke, who was a funder of the initiative? Major funding in opposition to the initiative — which was clearly written to target Pebble, but would have affected mining throughout the state — was provided by NANA — a Native Corporation, which sort of makes you wonder about the claim that the Natives oppose Pebble. Actually, I don’t wonder because 10 of the 12 regional Native Corporations have filed protests against the EPA’s attempt to stall the exploration of the Pebble Prospect. Maybe only Natives who have been propagandized oppose Pebble. The initiative was defeated 57% to 43% in the largest August election turnout since Statehood. It will be back, though, I’m sure.

So, I re-read John Shively’s article to figure out what states the posters were speaking of as being significantly different from Alaska with its “anadromous streams (which just means that fish spawn in them). Maybe actually reading the post “Truth About Pebble” instead of just scanning it would help. The only time Shively mentions Texas or any other state is to give comparisons for visualizing acreage. Nowhere does he talk about mining in other states. He was strictly focused on correcting the widely held errors about Pebble and the science that has gone into the project so far.

The third article “Not Your Grandfather’s Mining Regulation” might also help factually challenged readers.

I first heard about the Pebble Prospect in the mid-to-late 1980s when I was working as a reporter. Given the crowd I ran with, I quickly became convinced that it was a bad idea. I had the impression that it was right on the shores of Lake Illiamna, the spawning grounds for Bristol Bay salmon. And that was the opinion I held for about 20 years.

Yes, 20 years! I had other things to do and there was no Internet back then, so unless a news story headed me in that direction — which it didn’t — I had no reason to do independent research. Like a lot of other people, I chose to believe the rhetoric rather than research the facts.

In the mid-2000s my daughter made friends with a girl down the street and I met the girl’s mother — who was a mining engineer for the Ft. Knox mine. I grew up playing in the tailings of the Fox dredge, so my opinion of mining wasn’t great. But Rebecca talked about rocks with passion, so I listened. She invited me to Ft. Knox for a tour and I got to see that this mine was not the Fox dredging at all. Our families visited Kennicott together — the men stayed in Chitina to fish for salmon while we ladies hiked the old copper mining town. Rebecca showed me the difference between that mine and Ft. Knox. Kennicott was built without a containment dam and there was no attempt at reclamation, while Ft. Knox was built with the best in modern technology.

And, then, Pebble came on my view screen again during the fight over the initiative. Of course, I asked someone I knew would  give me straight answers and Rebecca gave me quite an education. I learned that the Pebble deposit is — geographically speaking — not really near Lake Illiamna at all. It’s closest edge is 15 miles from the lake’s watershed, further than Ft. Knox is from some Interior rivers.

I also learned the most important part of this — Pebble was merely an idea in 2008. A few shovel loads of dirt had been analyzed. At that time no environmental studies had been done, no core drilling, no engineering. So, why, Rebecca asked, was the opposition so strong?

Since 2007, we’ve had the EPA announce without any corroboration that it thought Pebble was a danger to the environment. It then produced a report that was based on a study of opinion literature surveying the outcome of mining techniques from 50 years ago that are no longer applicable to the mining industry of Alaska or just about anywhere in the developed world. It has completely ignored the scientific date produced by the PLP.

PLP has yet to file a permit application with the State of Alaska, let alone the Army Corp of Engineers or the EPA, yet the EPA is seeking to prevent an application being filed. Why? As the third article in this series shows, Alaska has the most rigorous mining regulations in the 50 states and Pebble’s exploration has been monitored by those state regulators. Red Dog, Ft. Knox, and Pogo mines have been producing minerals for years without incident. The containment dam at Ft. Knox held up fine during the Denali Quake of 2002, which rattled Fairbanks at 7.9 magnitude. A thorough seismic analysis of the area around Lake Illiamna has yet to be done, but is required as part of the permitting process. No, that doesn’t mean that a meteor might not drop out of the sky and take out the containment dam at Pebble sometime in the future, but what are odds of that?

I’m not saying Pebble SHOULD be built. I’m saying Pebble should be studied and if PLP can show that it can be done safely, within a reasonable margin of risk, then the State of Alaska should decide to grant the permit. And the EPA — which has discredited itself on this issue by trying to impede the legal and lawful process — should step out because they’ve shown themselves highly biased and without regard to facts..

As for the Alaskans who don’t want Pebble — well, 57% of us seem not to want to stop Pebble’s preliminary studies.

Rather than buying the talking points of the Renewable Resources Coalition, how about taking a BALANCED approach and actually looking at the facts.

In fact, there are a number of independent science panels set to study the issue May 6-7 at University of Alaska Anchorage.

Since the readers who posted most likely live in Anchorage, it might be a worthwhile educational opportunity.

Pebble Mine – Part 1 of 3   Leave a comment

If you listen to the media, you would think Alaskans are the biggest danger to the environment since that meteor that landed off the Yucatan 65 million years ago. We’re always violating the Clean Water Act, the Clean Air Act and wanting to bomb the glaciers. Most recently, we’ve been in the news for wanting to destroy the Bristol Bay Fishery with this little mining project called Pebble.

Most of what I’m writing here comes from the attached article by a group started out opposed to Pebble Mine and has now changed its mind and is trying to sort through the rhetoric to get to the truth. There’s a lot of rhetoric.

The Pebble Mine Project, located in the Bristol Bay Watershed is a major point of ongoing controversy throughout Alaska, the United States and many other countries. Right now, it’s just an idea on paper and a few shovel-loads of dirt moved and examined. If developed, it would be the largest gold mine in the world. It is also the largest known undeveloped copper ore deposit in the world. It’s estimated to contain $300 BILLION in recoverable minerals. The location of the purposed Pebble Project could not be more disturbing to some of the people of Bristol Bay and to a number of residents in Alaska, but it is a major blood-pressure raiser for environmentalists.

Situated near Lake Illiamna on Alaska’s Katmai Peninsula, Pebble Mine would sit at the headwaters of Alaska’s largest salmon-rearing habitat. Alaska being the tectonically active zone that it is, environmentalists and fisherfolk in Bristol Bay fear that an earthquake might take out the containment dams on the tailings and pollute the watershed, irretrievably destroying the Bristol Bay fishery.

The mine would be located on lands owned by the State of Alaska, which is constitutionally required to operate mineral prospects for the benefit of everyone in the state, not just the residents of one area or one industry. There have been huge amounts of site-specific data collected on potential environmental and social effects of the Pebble development, but so far, it is just an idea.

The mine is expected to provide significant tax revenue to the State of Alaska. Approximate 2000 jobs will be created during construction and 1000 long-term jobs during the 30- to 60-year expected lifespan of the mine. Although mining has a less than stellar environmental history, improved technologies and regulations have largely eliminated that concern. The State of Alaska has an exacting environmental permitting process to assure that the Pebble Partnership protects the environment.

There have been several political attempts to block the development, but voters have soundly rejected all of them because they would not just affect Pebble, but all mining throughout the state.

Alaska has a long history of mining. Some of it has been done badly. I grew up playing in the tailings of the Goldstream and Chatanika dredges.

However, I also fish every summer for Copper River red salmon just miles away from the decommissioned Kennicott Copper Mine. Closed in the 1930s, it used no containment dams or other modern technologies. Yet the Copper River remains largely unpolluted and the salmon return year after year.  On the way to our cabin site, we drive past Fort Knox gold mine – a huge open pit mine that is similar to what is proposed at Pebble. It’s not pretty – but you can’t see it from the road and when they’re done mining, they will reclaim the land and in 30 years, we won’t be able to tell that a mine was ever there.

How do I know? I also live 90 miles away from Usibelli Coal Mine.

Usibelli is a strip mine and strip mining is ugly. Started in the 1940s by a man who didn’t really love the environment (Austin “Cap” Lathrop), the old Suntrana mine was pretty ugly when Emil Usibelli bought it the 1950s. He looked at the area where the coal had already been mined and told his workers to push the overburden back in place and plant trees. In the 1970s, the EPA and National Forest Service ordered his son to begin reclaiming the land. Joe Usibelli had to take them to court to show that he had already done what they wanted him to do, just without their edicts making him do it. He saw no reason to cut down a 20-year-old forest to plant the one they were requiring. I’ve toured that now 50-year-old forest and cannot discern a difference between it and the surrounding forests. It’s great moose-hunting habitat.

There are no guarantees in life and development of natural resources always entails risk. In November 2002, the Denali fault line traveled several feet, producing a 7.9 magnitude earthquake. It ranks as the only time in my adult life that I ever dove under a table when the ground started shaking. Like most Alaskans, earthquakes don’t impress me much. This one did! In some places, the TransAlaska Pipeline moved 15 feet. It shut itself down, but it did not leak. Engineers had planned for the potential of such an earthquake. The TAPS held up fine – the Richardson and Taylor Highways required major repair. So, there is no way I could say that there are no risks associated with mining in the Bristol Bay watershed.

I can say that mining in the Copper River watershed has posed no discernible harm to the salmon returns there (Copper River being the second-largest salmon spawning ground in Alaska). Of course, the Pebble Partnership should demonstrate their project is safe and able to withstand earthquakes of a magnitude likely to occur in the Lake Iliamna area. If they can do that to State of Alaska standards, environmental groups should stop complaining because people need jobs. We can’t all work for environmental harassment squads. Some of us have to drill for the oil and mine the minerals that support the lifestyle of environmental harassment squads.

Suggestions for Restoring Liberty   Leave a comment

So, how do we fix the broken environmental system we have in the US today? It won’t be easy, but it can be done.

First, we need to require legislative approval to enact major regulations at both the state and federal levels.  No regulation having an annual economic impact of $100 million or more on the American economy should take effect without congressional approval. Regulations from the Executive in Need of Scrutiny (REINS) Act, if passed, would require such approval. States should consider passing their own versions of the REINS Act to govern their regulatory activity, giving their legislatures an opportunity to deliberate prior to an up-down vote on regulations with large and potentially negative economic effects. This approach would shift political power away from unaccountable bureaucrats and back to lawmakers who are directly accountable to the American people.

Second, we should ensure that costs of environmental regulations do not outweigh benefits. Congress and the states (there are states like Alaska that exercise non–federally delegated regulatory authority) should clarify that no regulation may be issued without an administrative finding that the costs do not outweigh the benefits. Regulators must be directed not only to consider the intended benefit, but also to explain whether the regulation will destroy jobs, infringe on personal property rights, or vastly increase the costs of goods and services.

We should establish a mechanism to compensate landowners for regulatory takings. Congress should provide greater protections for property rights and other civil rights than even the Supreme Court claims Constitution requires. It is unfair for the government to take your property without paying for it. It’s also unconstitutional. Congress could establish a simple mechanism for compensation of regulatory takings that, among other things, would define the “trigger” mechanism that will determine whether a regulatory taking is compensable and require that regulatory agencies specifically define what they will and will not allow on regulated properties. The Clean Water Act and the Endangered Species Act in particular are two laws that would be obvious candidates for incorporation of such a provision.

Speaking of which, we need to clearly define federal jurisdiction under the Clean Water Act. Under the CWA, the Army Corps of Engineers and the Environmental Protection Agency assert jurisdiction over virtually all waters in the United States. As a result of its broad reach, as well as the severity of its penalties, the CWA presents an unparalleled risk to individual freedom and economic growth. A delineation of which waters are covered will remove regulatory uncertainty and reduce enforcement costs. For such reform to be successful, federal officials must acknowledge that there are limits to federal power and that relying on state and local governments to protect local waters (including wetlands) is not only sufficient, but legally required to protect America’s natural resources.

We need Congress to deny the EPA authority to regulate CO2 under the Clean Air Act. Regulation of CO2 imposes high costs on both the economy and the environment. Proposals to restrict CO2 emissions lead to higher energy costs and fewer jobs. The Clean Air Act, which was designed to limit toxic emissions, is unsuitable for CO2 regulation. CO2 is generated by living beings breathing. Obviously it is not a toxic substance. When applied to CO2, the extraordinarily broad scope of the CAA could place millions of additional businesses under costly and time-consuming EPA regulations—with little or no accompanying environmental benefit.

We need Congress to rescind the National Environmental Policy Act. NEPA’s intended goal of environmental stewardship is thwarted by the project delays and higher costs imposed by its regulatory regime, which leads to the politicization of science and the influence of special interests. Ultimately, NEPA should be rescinded. In the interim, Congress should mitigate the harm it causes by limiting NEPA reviews to major environmental issues that are not dealt with by any other regulatory or permitting process, mandating time limits, and limiting the alternatives studied to projects that involve multiple agencies.

Congress should shift responsibility for the protection of endangered species to the states. The Endangered Species Act, as currently implemented, is not working: Polar bears, for example, are listed as potentially endangered, but they’re so numerous they’re hunting people in Barrow, Alaska. Regulatory costs are immense and growing, and its record of saving endangered species is weak. Shifting species management to the states is the most preferable course of action. Where species migrate across state borders, any remaining federal endangered species program must be altered to fundamentally change agency behavior and program focus while ensuring protections for property owners.

Congress needs to open access to federal lands and natural resources for development. The federal government owns nearly one-third of the United States, and access to this public land is becoming more difficult because of a flawed system of restrictions, regulations, and litigation. Much of this land is not suitable for parks, wildlife refuges, and the like and is home to some of our nation’s richest natural resources. Congress should return responsibility for many of our federal lands to states and private owners. Such reform would give responsibility for managing the lands to those with the most knowledge of the land and the most to gain from its productivity. Short of devolution, the federal government should make some of its lands available for wise use and defend those who use it properly from special-interest groups that would bar such development. This would provide direct economic benefits to citizens and the government and result in better-managed assets.

Congress must preserve and defend the treaty process. Environmental advocates have long been frustrated by the inability of various international environmental agreements to pass Senate muster, so they advocate avoiding the supermajority requirement by substituting executive agreements. This ploy undermines the system of checks and balances in the U.S. government and mocks constitutional intent. By entering into treaty commitments, the US government cedes some level of sovereignty, as well as the checks and balances of the U.S. constitutional system. Pursuing treaties is a serious responsibility, a fact further evidenced by the Founding Fathers’ requirement that two-thirds of the Senate must consent to a treaty prior to ratification. We should not allow our representatives to cede that authority.

Our Founders mistrusted government. They didn’t find any of it to have a lot of redeeming qualities. They trusted the legislature more because it was divided and deliberative. They originally thought they could do without an executive. When it became obvious that they couldn’t do without one, they set up a system whereby the executive is fettered by checks and balances, mostly by the legislative branch. In this way, they hoped George Washington and his successors would not become King George. They would be completely flabbergasted by how strong our executive branch has become. They would demand that Congress stand up on its two legs and rectify the situation. They would be even more flabbergasted by the fourth branch of government — the administrative state. They would probably scream at us “WHAT DO YOU THINK YOU’RE DOING?” They understood that the bureaucracy was a danger to self-government. They didn’t understand this in a vacuum. Some of them had been to France and England. This was not a mystery to them.

So why is it to us?

It’s time we demanded from our elected representatives that they take control of the government once more. The REINS Act is a good place to start. Do you know the emails of your Congresspeople and Senators?

You should!

The Clean Water Act Succeeded Too!   2 comments

When government agencies exercise their regulatory power in excess of statutory or constitutional authority, without regard to such power’s impact on the citizenry, they undermine this nation’s constitutional foundation and become a law unto themselves. Consequently, citizens are left to conclude that the “rule of law” has no meaning and we are governed by bureaucratic whim.

There was once a time in this country when waterways were polluted and there needed to be some standards set, some education provided, some polluters stopped. That time has passed. The City of Manchester, New Hampshire, takes its drinking water directly from the Merrimack River — a river that in 1970s had been declared one of the most polluted rivers in the nation. It is now considered safe to drink from it with just the usual municipal water treatment.

The Clean Water Act did its job … and then rolled on to justify its continued existence through regulatory overreach and abuse of American citizens. It should not take over a year and a quarter-million dollars for a small business owner (like an Alaskan miner) to get a conditional CWA permit to work his own land. Property owners should not be told they can’t build on a piece of property that is miles from a “wetland” that is dry for most of the year. That’s tyranny.

None of us wants to return to the bad old days of open sewers dumping into rivers, but the protection of the environment is only one of many competing and important social values. In a society based on liberty, no single value can be pursued without regard to its cost. Environmental laws can and must be administered so as to safeguard—not thwart—fundamental human needs and rights.

The Clean Water Act must be administered to protect those needs and rights. Because of the Corps’ and EPA’s unwillingness to follow Supreme Court precedent and adopt new jurisdictional rules limiting the scope of the Clean Water Act, Congress is the only meaningful avenue for reform. Remember, the EPA acts under delegated authority from Congress and what Congress has delegated, it can reclaim. Therefore, Congress should:

  • Clearly define federal jurisdictions under the Clean Water Act. A delineation of which waters are covered will remove regulatory uncertainty and reduce enforcement costs. For such reform to be successful, federal officials must acknowledge limits to federal power. Reliance on state and local governments to protect local waters (including wetlands) is sufficient and legally required to protect America’s natural resources.
  • Prohibit the Corps and EPA from changing agency policies or practices by means of judicially unreviewable “internal guidance.” Such a reform will encourage regulatory consistency by requiring that changes in jurisdictional interpretations are subject to formal notice and a public comment/rulemaking period that can be challenged in court if these interpretations exceed federal authority. 
  • Prohibit the EPA from modifying or revoking a validly issued Section 404 permit. This change will reduce uncertainty, encourage reliance on validly issued permits, and unshackle economic investment.
  • Require that landowners be given fair notice that their property is subject to regulation under the Clean Water Act. Such a reform is essential to eliminating unintentional violations of the act.
  • Require that, upon request, the Corps or EPA promptly provides landowners with a legally binding determination as to whether their property is subject to regulation under the Clean Water Act – a determination that is subject to judicial review. Disputes about jurisdiction must be subject to immediate judicial review at the instigation of either party. This requirement will eliminate unintentional violations and deter unlawful enforcement of the act.
  • Require the Corps and EPA to issue “warning letters,” “cease and desist” notices, and compliance orders only in writing and only on the basis of documented, site-specific evidence sufficient to prove both federal jurisdiction and a violation of the act. Disputes about jurisdiction, violations, or the terms of such orders must be subject to immediate judicial review at the instigation of either party. The current practice of issuing letters and orders based on “any evidence” without a judicial hearing or proof of violation is unfair. This solution will discourage agency bullying and commit the agency to a sound legal position that must be defensible in court.
  • Limit permitting authority to a single agency without interference from another agency, thus providing greater certainty to the permitting process and encourage economic investment.
  • Create a disincentive for harassment lawsuits. Plaintiffs who bring suits against a private party should be required to post a special bond or pay attorneys’ fees and costs if they lose. This reform will discourage abuse of the citizen suit provision.

Again, we’ve become so used to the administrative state controlling so much of our lives that many of us feel helpless to change any of this, but it is important to be aware that Congress has the authority to rein in the regulatory agencies it created and force them to become accountable to the people they regulate.

Cleaner Air & Poison Water   Leave a comment

As an example of the regulatory overreach of the Environmental Protection Agency and how it sometimes (maybe more often than we know) actually harms the environment, I present to you Alaska’s battle with MTBE. Please bear with the length of this article, because the findings here are important to understanding the abusive nature of the Clean Air Act.

Methyl tertiary butyl ether (MTBE) is a gasoline additive that the EPA insisted motorists use back in 1990. This article ran in the Fairbanks Daily News-Miner in 1993.’s+oxyfuel+anguish.-a014850017

In mid-October 1992, motorists in Anchorage and Fairbanks began filling their gas tanks with gasoline blended with methyl-tertiary-butyl-ether (MTBE), as mandated by the EPA, acting under the Clean Air Act, to address the CO exceedances that plague both communities in the winter.

Within days, protests flared up in both cities as more than 150 Fairbanks residents reported physical effects from the oxyfuel: headaches, nausea, vomiting, a burning sensation in the nose or mouth, coughing, dizziness and disorientation. My brother had his first asthma attack in 30 years. Obstetricians and midwives reported normal pregnancies where women were complaining of abnormal contractions after being outdoors. Mechanics shops were inundated with cars that had stalled along the road for no reason. Gas stations were wreathed in this stink similar to formaldehyde. Before the winter ended, more than 300 Fairbanksans voiced medical complaints about the fuel. To understand the magnitude of this furor – the Fairbanks North Star Borough only had 90,000 residents in 1992. That 300 people actually showed up at their doctor’s office or the ER complaining about symptoms bad enough to be reported to the authorities says it was a significant problem. Anchorage was undergoing a similar situation.

Thousands of Alaskans signed petitions to ban the mandatory use of oxyfuel in the state. Gov. Walter Hickel, Fairbanks North Star Borough Mayor Jim Sampson and the Alaska congressional delegation mounted a campaign to nix use of oxyfuel in Alaska that winter and to find new alternatives to clean carbon monoxide from the air in Anchorage and Fairbanks in order to comply with federal requirements of the 1990 Clean Air Act.

In the end, after the EPA refused to reconsider its mandate, Wally Hickel unilaterally ordered state refineries to remove the additive from the winter fuel blend. The EPA threatened to pull federal highway funds. Gov. Hickel suggested he was up for a fight. An EPA official responded in a 1993 article:

“If you think there are health hazards associated with MTBE, look at what carbon monoxide (CO) can do. An odorless colorless pollutant, the gas inhibits your blood’s capacity to carry oxygen to organs and tissues. If you’ve got chronic heart disease and breathe this stuff on a high-pollution day, you may experience chest pains. Get exposed to high levels of CO from a malfunctioning furnace, and you may risk your life or even die.”

The mandate to use oxygenated fuel was controversial in other parts of the nation. Although the EPA insisted at the time that Alaskans were the only ones complaining, it turned out that folks in other states were complaining too. They just didn’t have Wally Hickel, former Secretary of the Interior and political pugilist, as governor. There were never any clear scientific indications that MTBE reduced carbon emissions more than a tiny amount and people reported a loss of fuel efficiency (a problem that still exists with ethanol, which replaced MTBE).

Utilizing a site- and circumstance-specific approach, the University of Alaska Fairbanks conducted experiments that winter (later repeated and falsified) and found that reducing our carbon emissions might be as simple as plugging in our cars. (For those of you in warm states, Alaskans install electrical warming devices called headbolt heaters and oil pan warmers on our cars so that when they are not running the car’s engine the oil remains fluid. Initially, we did this so we could start our cars after a three-dog night. Now we do it to also lower CO levels in the community. When I was a kid, most people plugged in at about 0. Now we are asked to plug in at 20 above.) That simple step and the cleaner-burning addition of newer cars brought Fairbanks into compliance with the Clean Air Act’s CO requirements almost 10 years ago.

The article I cited above insisted that, given current trends (in 1993), increased driving was expected to wipe out all the gains in CO level reduction by the year 2000. The EPA’s own website reveals the “chicken little” in that assertion. Technology has continued to reduce CO levels throughout the nation.

It turns out that MTBE was well known in the petrochemical industry prior to its introduction into fuel blends in the 1990s. Workers had reported similar symptoms to those that Alaskans complained about. OSHA had set safety protocols for handling the toxin before it was mandated in fuels. Apparently, the EPA never talked to OSHA. Administrative state rule silos at their best.

The EPA administers both the Clean Air Act and the Clean Water Act. It refused to even study the complaints around MTBE in 1993. By 1995, independent researchers and OSHA were finding problems with MTBE, saying it was a possible carcinogen.  By 2002 California had removed MTBE from gasoline after finding significant ground water contamination. In 2000, the US Senate Environmental Committee approved an energy bill to remove MTBE from all gasoline by 2004.

In 2008, there was a landmark settlement of approximately $420 million on behalf of more than 150 public water systems in 17 states whose groundwater was contaminated by MTBE. All 50 states show some level of contamination, but only Alaska and Hawaii are not considered “at risk” from it. Alaska used it for only a couple of months and Hawaii, because of the trade winds, was never mandated to use it. MTBE does not biodegrade or adhere to other substances, such as the soil. It flowed into aquifers all over the country, thereby violating the Clean Water Act. It binds with water. As Fairbanks’ winter air is filled with frozen ice particles (essentially frozen water vapor), it was little wonder we could smell the formaldehyde residue of the MTBE.

I couldn’t find any documents where the EPA admits that mandating MTBE was a bad idea. I found documents where the EPA supported lawsuits against petrochemical companies that produced MTBE, but the EPA has never been called into court to answer for mandating its use.

Why should they be? Because they knew about the risks nearly a decade before they mandated the use. In 1986, the Maine Department of Environmental Protect submitted a report to the EPA entitled “MTBE as a Groundwater Contaminant.” It identified MTBE as a hazard that should be stored only in double-contained facilities. In 1988, the EPA (acting under the Clean Water Act) added MTBE to its first Drinking Water Priority List as a substance that might adversely affect public health. Then in 1990, it mandated its use in fuels under the Clean Air Act.

The EPA silos of regulation work well, don’t they? The EPA did not make the air cleaner. It pointed out a problem and technology, given time, solved the problem. When EPA administrators got tired of waiting for the gradual development of emission-scrubbing technology, they made a determination for a chemical additive that wasn’t proven to reduce CO and had already been flagged as a potential hazard by their own agency. By mandating the use of MTBE in support of the Clean Air Act, the EPA promoted one of the worse violations of the Clean Water Act in history.

Reform is necessary and long overdue.

Identifying the Problems with the Clean Water Act   Leave a comment

The Corps of Engineers and the EPA have a history of heavy-handed and arbitrary enforcement of the Clean Water Act. I’m familiar with a lot of this through contacts with small miners operating here in Alaska. Contrary to the plain language of the act and past agency practice, the EPA claims it has authority under Section 404(c) to, at any time, revoke existing “dredge and fill” permits issued by the Corps under Section 404(a).

First, you have to understand that the cost of a wetlands permit is prohibitive, averaging 788 days and $271,596 for an individual permit and 313 days and $28,915 for a nationwide permit. This doesn’t include costs of mitigation or design changes. It’s estimated that over $1.7 BILLION is spent each year by the private and public sectors obtaining wetlands permits.

Second, under the EPA’s interpretation of its “veto” power, permit holders rarely receive a final permit. They remain in regulatory limbo, frustrated by an uncertainty that discourages productive investment and threatens property rights.

Third, the EPA frequently overrides the Corps’ enforcement decisions, prosecuting landowners for Clean Water Act violations—even when the Corps has determined that no violation exists. This activity sometimes occurs at the state level, where, for example, a state issues a Clean Water Act permit through an EPA-approved delegated program, only to have that permit unilaterally revoked or modified by the EPA via a process called “over-filing.” Such unilateral revocation is unacceptable: Innocent citizens should not be made to suffer because of inter-agency disputes.

Perhaps the most insidious use of federal power under the Clean Water Act involves the Corps’ and EPA’s increasing use of “warning letters,” “cease and desist” directives, and compliance orders to browbeat small landowners into submission. Using the threat of ruinous civil fines and criminal prosecution, these agencies rely on intimidation to compel landowner action without a hearing or proof of violation. This practice discourages investment while unfairly constraining the reasonable use of land. Here in Alaska, the EPA has ruled that placer miners must achieve drinking water quality in their effluent before release into a “navigable stream”. The problem with this is that Alaskan streams rarely are drinking water quality in the absence of placer mining. Many of our streams are glacier-fed, meaning they are muddy and mineral-laden. Pay no attention to the natural conditions. We only want drinking-water quality effluent from that muddy stream.

Finally, the Clean Water Act’s citizen lawsuit provision is flawed. A virtual cottage industry exists where opportunistic litigants bring imaginary or exaggerated claims in court against an individual or small business in hopes that the risk of enormous fines will precipitate a lucrative settlement, delay or run up the cost of a disfavored project or simply cause the project not to be built by driving the developer out of business. These types of “nuisance” suits provide no environmental benefit while stymieing economic growth.

By any other name, this would be considered tyranny. When we see this sort of behavior in other countries, we call it what it is — dictatorial rule, human rights violation. Yet, we seem blissfully unaware of it in our own country until it happens to us.

When Dry Land is Called Wet   3 comments

The Army Corps of Engineers and the EPA have a history of exceeding their authority under the Clean Water Act. Some of this history is attributable to ambiguity in the law, but most is the result of willful overreach. According to the U.S. General Accounting Office (GAO), local districts of the Corps “differ in how they interpret and apply the federal regulations when determining what wetlands and other waters fall within the [Clean Water Act’s] jurisdiction.” The GAO reports that even Corps officials working in the same office disagree on the scope of the CWA and that “three different district staff” would likely make “three different assessments” as to whether a particular water feature is subject to the act.

This ambiguity is no accident.

Federal enforcement practices differ from district to district because “‘the definitions used to make jurisdictional determinations are deliberately left vague. Consequently, federal officials are able to assert the broadest possible interpretation of Clean Water Act jurisdiction on a case-by-case basis so as to avoid any challenge to their regulatory authority.

Examples of vague regulatory definitions abound. While the Clean Water Act prohibits unauthorized discharges of pollutants into “navigable waters,” the Corps and the EPA have extended their enforcement of the act to non-navigable waters, such as “streams (including ephemeral streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds” and any wetlands adjacent thereto. Federal regulations define “wetlands” as those areas “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”

This definition of “wetland”7 is so broad that it encompasses areas that are wet only “for one to two weeks per year.”  In other words, a “wetland” may be mostly dry land. Under this definition, approximately 100,000,000 (100 million) acres of wetlands are located in the Lower 48 states—an area the size of California.  Approximately 75% of these wetlands are located on private land. With half of its territory covered by wetlands, Alaska has the largest wetland acreage. We’re known for our mountains, but whatever isn’t vertical is underlain by permafrost soil. So, even though the northern half of the state is a subarctic desert in terms of moisture fall, what moisture we get collects on the surface of the land, thus meeting the definition of a “wetland”. That means that 174,683,900 of our 403,247,700 acres (174 million or 403 million acres) are deemed wetlands by the US Fish and Wildlife Service. Consequently, development in Alaska is extremely difficult and expensive and often not permitted by the federal government, even on private and state-owned lands. Florida is next in designation with 11 million acres, then Louisiana with 8.8 million), Minnesota with 8.7 million, and Texas with 7.6 million.

The Corps and the EPA have interpreted the term “discharge” to include the mere movement of soil in the same area without any addition of material. Contrary to ordinary use and common sense, “adjacent” becomes “neighboring” (which might mean miles away) and “tributary” includes “swales” and “storm drains.” These excessively broad definitions jeopardize economic vitality. By allowing regulators almost unfettered discretion to interpret the law, the CWA forces businesses and individual property owners to operate under a cloud of uncertainty.

The prospect of regulatory takings under the CWA is difficult to predict, a development that discourages investment because it renders private property protection ambiguous. These broad definitions have sparked such egregious agency overreach that the U.S. Supreme Court has, on two separate occasions, intervened on behalf of private property owners.

  • In 2001, the High Court held that the Corps and the EPA could not regulate isolated, non-navigable water bodies and emphasized that there are statutory and constitutional limits to the scope of the Clean Water Act. The Court also affirmed that regulation of local land and water use was the primary responsibility and right of state and local governments. The ruling suggested that management of natural resources should be conducted on a site- and situation-specific basis.
  • Likewise, in 2006, the Court reiterated that the Corps and the EPA could not rely on a boundless interpretation of the act and regulate all water bodies with any sort of hydrological connection to “navigable waters.”

These rulings did not dissuade the Corps or the EPA from their goals. More recently, the Corps has tried to scale back the long-standing farm exemption for prior converted croplands—an exemption that covers 53 million acres—without utilizing the formal rule-making process. The Corps also asserts that it can now regulate upland drainage ditches as “navigable waters” under its Nationwide Permit Program—an expansion of regulatory power that could affect almost every development project in the country.

But these efforts to enlarge the CWA’s regulatory scope pale in comparison to the expansion of the act contained in a new EPA and Army Corps of Engineers agency guidance document entitled “Guidance Regarding Identification of Waters Protected by the Clean Water Act.” This guidance asserts federal control over virtually all waters in the United States. Indeed, this putative reach is so broad that the agencies refuse to categorically exclude even artificial ponds and swimming pools from federal regulation.  It is undoubtedly the largest expansion of power ever proposed by a federal agency.

This has already been sent to the Office of Management and Budget (OMB) for approval.

More EPA Abusiveness   Leave a comment

For many Americans, protecting the environment is an important issue that must be balanced with concerns about housing, jobs, the economy, and individual rights. Contrary to popular belief — that which is put out by the liberal media — conservatives do not want to pollute the planet. We simply want attempts to conserve our air and water to be mindful of the liberty our country was founded on because we believe that conservation is possible without draconian and unconstitutional governmental edicts. Some federal environmental laws, such as the Clean Water Act (CWA), fail to balance these competing societal values and instead pursue environmental protection to the exclusion of other human concerns. Because of its unlimited capacity to restrict or prohibit ordinary human activity, the Clean Water Act poses a unique risk to individual and economic freedom. The act authorizes severe, sometimes ruinous civil penalties1 and criminal liability for discharging a pollutant into “navigable waters” without a federal permit. Furthermore, the act can be enforced against “any person,” whether a large corporation or private individual.

One of the primary problems with the CWA is the federal government’s broad and inconsistent interpretation of the term “navigable waters”—the waters that the federal government can regulate under the CWA. By promulgating an amorphous definition of navigable waters, the Army Corps of Engineers and the Environmental Protection Agency (EPA) have effectively federalized virtually all waters and much of the land in the United States, including artificial ponds and swimming pools. Such vague   regulations allow federal officials to maximize the reach of the act while evading judicial review, thereby discouraging productive activity and economic investment. Problems with the Clean Water Act generally involve either regulatory overreach or abusive enforcement.

I hope to bring in some Alaskan concerns here to provide a human face to the abusiveness of the Clean Water Act.

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