Action Alert: Trout Unlimited Fights Water Quality Rollback

South Platte River, Denver, CO

For nearly 50 years, the Clean Water Act has been a tool for improving the quality of waters in Colorado and nationwide – reducing degradation from discharges of pollution into our waterways. Unfortunately, the Colorado Water Quality Control Commission is now considering a rollback of its anti-degradation rules that could allow for increased pollution discharges into many Colorado waters. Urban rivers like the South Platte in Denver or Arkansas in Pueblo would be especially at risk - but mountain streams could also see their protections weakened.

You can sign our petition to oppose the water quality rollback here.

Colorado’s long-standing anti-degradation rules limit pollution dischargers on how much they can degrade existing water quality for most rivers, even when current quality is above minimum standards. Those minimum standards work as a floor, not as a target. This has helped Colorado maintain and improve the quality of its waters over time.

More specifically – Colorado’s antidegradation rule provides for three levels of antidegradation protection. At one end of the spectrum, the Commission can designate waters that are so pristine that no degradation is allowed. These are called “outstanding waters” and must meet a rigorous water quality test and exhibit special qualities that merit the strict designation (e.g., they support conservation populations of native trout, or are in a unique site such as National Park).

At the other end of the spectrum, the rule provides for the designation of streams which allow for waters to be polluted down to the floor level established by water quality standards, whether or not there are compelling reasons for doing so. These are the so-called “use-protected” waters.

Waters that are not designated outstanding or use-protected are called “reviewable waters.” Degradation of these waters is allowed, but only to accommodate important economic or social development. Currently, most Colorado streams enjoy the middle level of protection afforded to reviewable waters.

The antidegradation rule implemented by the Commission for the past 33 years has narrowly limited the weakest use-protected designations to instances where the quality of the designated waters is already fairly poor. Under the proposed rule, the Commission may designate the stream use-protected even if it is of good quality but fails to meet standards for a single pollutant. For example, under the new rule, a stream that supports a good fishery but has occasional high stream temperatures could now be designated as use-protected, allowing additional degradation of the stream by polluters – and not only for temperature, but for any other contaminant, such as nitrates and metals.

Worse yet, increased pollution would be allowed even if the reason the stream fails to achieve higher quality in the first place is because of the pollution caused by the entity now asking for the weaker use-protected designation – so that they can be allowed to pollute even more.

Many likely waters for this weakened protection will be in urban areas, creating an environmental justice issue as well, where pollution can be disproportionately worsened in already disadvantaged communities. Indeed, the Commissioner proposing this change has previously suggested that “crystal clear mountain streams” should be protected from degradation, not our Front Range urban waters. Major urban river restoration investments (like those from Denver TU and its allies along the Denver South Platte) also will be at risk from increased pollution if those waters are moved to the weaker “use protected” status.

Instead of promoting further improvement in water quality, the proposed rule would allow far more waters to have the weakest anti-degradation protection – a lowest-common-denominator approach to water quality protection that will lead to declining water quality. Making matters worse – this proposal was initially buried in the rulemaking notice as a “clarification and correction.” Fortunately, TU and other allies were alerted to the proposal and have become parties to the rulemaking; we will fight vigorously against this rollback of water quality protection. You can read our coalition’s Prehearing Statement on the rule here. Those who want to speak out against this measure can help by signing a petition we have launched on our website. The Commission will be taking this issue up for action at its hearing on June 14th – stay tuned for additional updates as we work to stop the rollback!

Take Action: Ensure Responsible Energy Development with safeguards for wildlife, fish and their habitat

Please take a moment to give your voice and urge the Colorado Oil and Gas Conservation Commission (COGCC) to ensure responsible energy development through providing safeguards for wildlife, fish and their habitat. Both the outdoor economy and our Colorado quality of life depends on it.

Help protect streams and wetlands: Support the Clean Water for All Act

The Clean Water for All Act is an effort to ensure that our headwaters - many of which are ephemeral or intermittent streams that do not flow year round - retain the Clean Water Act protections they’ve enjoyed for more than 40 years but that would be lost under a recently announced rule changing Clean Water Act definitions. If we don’t protect the sources of our larger rivers, we can’t protect those rivers or the fisheries and communities that rely on them!

Below is an excerpt from Steve Moyer, TU’s vice president for government affairs, read the full blog here.

The Clean Water for All Act would repeal the Trump administration’s harmful rule and direct the agencies to start over in a manner that protects America’s waterways—all of them—consistent with four decades of Clean Water Act precedent.

Research by Trout Unlimited suggests that the administration’s new rule will end Clean Water Act protections for more than six million miles of streams—half the U.S. total. These streams contribute to the drinking water supplies of 117 million Americans and provide essential fish and wildlife habitat that supports a robust outdoor recreation economy worth $887 billion.

The rule will also erase protections for more than half of the nation’s wetlands, a critical part of functioning watersheds. Wetlands help recharge groundwater, filter pollution and protect communities from flooding.

The EPA’s new rule was justifiably criticized by many state and local government agencies, fish and wildlife conservation organizations and hundreds of thousands of citizens during the rule-making comment period.  It is a real threat to trout and salmon watersheds nationwide.

The Clean Water for All Act would help protect the rivers of southwestern Oregon, and streams across the nation. Please take a moment today to help us urge House members to work with their colleagues to pass this bill into law.

Support Public Lands - the Great American Outdoors Act

Please take a moment today to ask your elected officials to support S.3422 and help secure funding for public lands and outdoor recreation.

Help protect Colorado rivers - ask your Senator to support HB1157!

Good Samaritan legislation: A solution for a vexing problem

The 2015 Gold King Mine waste water spill was an environmental disaster that began at the Gold King Mine near Silverton, Colorado, when Environmental Protection Agency personnel, along with workers for Environmental Restoration LLC, caused the release of toxic waste water into the Animas River watershed.

by Trout Unlimited (Trout Unlimited is the nation’s oldest and largest coldwater fisheries conservation organization, boasting more than 140,000 members. TU’s mission is to conserve, protect and restore North America's coldwater fisheries and their watersheds.  Learn more at www.tu.org)

Pollution from mine sites (abandoned or active) fall into two categories: “Non-point sources” and “point-sources”.  Non-point source sites are those without a specific point where the pollution discharges into waterways.  These are commonly waste rock and tailings piles that cause contaminated soil runoff.  Point-sources are those that have a specific source of water pollution discharge that you can, well, point to. In this instance, think of a mine portal bleeding orange, heavy metal-laden water; that’s a point source.  

This is an important distinction because under the Clean Water Act (CWA), the EPA requires a discharge permit for all discharges of point source pollution. The effect is that third-party groups - “Good Samaritans” who have no legal responsibility or connection to an abandoned mine – who are interested in conducting a cleanup to address a point-source, draining abandoned mine would inherit permanent liability for a problem they didn’t create.  Additionally, Good Samaritans would be required to hold a CWA pollution discharge permit and meet all applicable water quality standards as if they had created the pollution. In other words, the Clean Water Act treats polluters and Good Samaritans the same.  There is no distinction in the law.  

Because a draining mine is likely to drain forever, the entity performing the work at an abandoned site would be saddled with accountability for any remaining pollution and held liable as if they had created the pollution to begin with - even if their actions create measurable improvements in water quality. The existing legal framework is “all or nothing”.  A cleanup project must result in 100% attainment of water quality standards – 99% isn’t good enough.  This creates legal jeopardy for Good Samaritans who are unsure if 100% attainment is possible. This conundrum leaves the EPA as the only entity legally positioned to clean up leaking, abandoned mines.   But, again, it is only through Superfund can this action occur.    

Under current law, only the EPA can treat discharged mine water from abandoned mine sites.  ‘Superfund’, or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) provides the legal authority and source of funding for the EPA to treat mine waste water from a point-source.  But, mine sites are not the only toxic sites awaiting EPA Superfund cleanups.  At present, there are over 1300 toxic chemical/pollution sites on the EPA’s Nation Priorities List (NPL) awaiting funding and attention, only a few of which are mine sites.  Federal resources are limited for the EPA to conduct cleanups at Superfund sites and there is no dedicated funding source beyond the Congressional appropriations process.  And, unfortunately, there are hundreds - if not thousands - of smaller, abandoned draining mine sites contaminating the environment that are not likely to qualify for a Superfund action.  These are sites that Good Samaritans could take on to increase cleanup capacity beyond the back-logged and underfunded Superfund program.   

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After the Gold King mine spill in 2015, numerous Federal and State agencies placed a greater emphasis on quantifying the scope and scale of draining mines in Colorado.  A study by the State Division of Reclamation Mining and Safety (DRMS) showed over 250 draining mines in Colorado with 148 likely degrading downstream water quality.  With more frequent temperature fluctuations and population increases across Colorado, having clean water sources will become more important for future generations of Coloradans.  The draft legislation discussed in previous summaries and below, will give qualified groups the opportunity to assist the EPA and federal agencies in addressing the cleanup of draining mines.    

Good Samaritans would only be those private organizations and/or state agencies qualified to conduct cleanups who apply for, and receive, a new type of “Good Samaritan” permit from the EPA. At a minimum, permit applications would have to include: site description, parties to be involved in project, description of mine residue to be remediated, description of the expertise of the Good Samaritan and resources available to successfully implement the project, baseline environmental conditions, comprehensive remediation plan, monitoring plan, engineering plans, contractors, work schedule, health and safety plan, contingency plans, project budget, proof of financial resources and an operation and maintenance plan. Permits would only be issued after a public hearing and comment period, and only if the Good Samaritan meet requirements to the satisfaction of the EPA and applicable regulations.  

Funding for Good Samaritan projects would come from a variety of private and public sources, including both state and federal dollars depending on site locations.  Grants and foundation money could also be utilized to fund these types of cleanups that would take on a true collaboration of all project partners and interest groups in the surrounding area.   

If the EPA chooses to issue a permit for an abandoned mine cleanup, a Good Samaritan would not be required to hold a traditional CWA pollution discharge permit.  And, they would be shielded from lawsuits if 100% attainment of water quality standards are not achieved. The EPA would instead hold the Good Samaritan to the requirements and terms of the permit.  And, in the unlikely event that a Good Samaritans violates the terms of the permit, and the violation leads to a reduction in water quality or environmental conditions below baseline levels, then the EPA is authorized to require the Good Samaritan to return the site to baseline conditions or face fines, bond forfeiture and permit revocation.   

Good Samaritan legislation is being proposed by conservation organizations such as Trout Unlimited who want to conduct Good Samaritan cleanup projects, but are prevented from doing so under current laws.   Under existing laws, there are three primary disincentives to Good Samaritan cleanups.  They are: 1) It is not feasible to improve water quality to meet high Clean Water Act standards, even though there would be measurable water quality improvements. 2)  The Good Samaritan would be permanently liable for pollution they didn’t create.  3)  The threat of being sued under “citizen suit” provisions of the Clean Water Act if a project does not attain 100% of water quality standards for any given criterion - again, even if there is a measurable improvement in water quality.  

Without Good Samaritan legislation, abandoned mines sites throughout the West that are not qualifying candidates for Superfund will continue to drain pollution every single day without a legal mechanism to begin addressing the problem. Under CERCLA, these sites are not candidates for Superfund projects and therefore the EPA does not have the funding or authority to clean them up.  By passing Good Samaritan legislation, state agencies and private organizations can fill in this gap and help take-on cleanups that would yield cleaner water to the benefit every water user downstream.  

The current draft proposal is for a pilot program that would terminate after 15 projects or 7 years, whichever comes first.  After which, Congress would either let the program expire or pass legislation to continue the program. This will allow for the concept to be proved-up and show that Good Samaritan mine cleanups are effective before making permanent changes to federal law.   

In the end, Good Samaritan proponents believe any improvement to water quality, over any period of time, is better than none at all.  

Clean Water rollbacks will put us back 50 years - what comes next?

Final rule announced; what it says and what comes next.

Final Rule Announced. 

On January 23rd, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) announced a final “Waters of the U.S. Rule.”  This rule replaces a 2015 Rule, which clarified the extent of jurisdictions for clean water act protections.  This new 2020 rule not only reverses the clarifications made in the 2015 rule, but further reverses protections that have been in place dating back to the 1970s.

What it Means?

We are awaiting publication of the final rule and will need to review in detail once available. 

Based on our reading of the proposed rule (we will update this after we review the final rule), the new rule would end Clean Water Act protections for millions of stream miles in the country – streams that contribute to the drinking water supplies of 117 million Americans and provide essential fish and wildlife habitat that support a robust outdoor recreation economy worth $887 billion.  The rule would also erase protections for millions of acres of wetlands, a critical part of functioning watersheds, including groundwater recharge, pollution filtration, as well as protecting communities from flooding. In eliminating these protections, the new 2020 Rule would deregulate a host of development activities, such as pipeline construction that will, over time, degrade hunting and fishing opportunities in every state in the country

Stay tuned for more.

What comes next? How can TU members engage?

Because this is a “final” rule, there is no additional opportunity for comment with the agencies.  However, there are still things that you can do to help voice your concerns about this rule and related attacks on clean water protections.

Write to Congress & Your Governors:

• Congress: Tell your members of Congress that you are angry about this rule and other attacks on the Clean Water Act and concerned about protecting our nations’ waters.  Urge them to oppose any legislative proposals to further weaken protections and urge them to do everything in their power to protect clean water.

• Governors: Tell your Governors that you are concerned about rollbacks for protections of waters in your state.  Many states will challenge this new rule in court.  Urge your Governors to join a challenge against this rule and do everything in their power to protect state waters.

Share you Stories:  We encourage you to share your stories and concerns through letters to local papers or blog posts on TU.org or other online publications.  The TU Communications team has templates and tools available to assist you. Contact Shauna Stephenson (shauna.stephenson@tu.org) for help drafting or submitting.

Background:

In December 2018, the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) unveiled a proposal to significantly narrow the scope of protections for our nation’s waters. The proposal would replace a positive, TU-supported 2015 rule (the Clean water Rule) designed to clarify the scope of Clean Water Act protections, which includes protections for headwaters, intermittent and ephemeral streams, and wetlands. The new proposal would substantially weaken the Clean Water Act, one of the Nation’s most effective natural resource laws.

The Clean Water Act and the 2015 Rule are vital to TU’s work and to anglers across the nation. Whether TU is working with farmers to restore small headwater streams in West Virginia, removing acidic pollution caused by abandoned mines in Pennsylvania, or protecting the world-famous salmon-producing, 14,000-jobs-sustaining watershed of Bristol Bay, Alaska, we rely on the Clean Water Act to safeguard our water quality improvements.   

TU members and volunteers contributed more than 4,000 comments for the record, including 25 council and chapter letters and 4,406 individual comments on the proposed rule.

Read TU Comments for the Record:

• Trout Unlimited State Council Letters

• Trout Unlimited Comments (National Office)

• TU State Maps: Waters of the U.S.

Additional Materials:

• 2019-Sportsmen’s Fact Sheet

• 2019-May update to TU Volunteers

• 2019-February update to TU Volunteers

• 2018-December update to TU Volunteers

• Federal Register Publication of Replacement Rule 84 FR 4154 (February 15, 2019). 

• Learn why it’s so important to protect clean water.

For questions, please contact:

Steve Moyer
Vice President of Government Affairs steve.moyer@tu.orgKate Miller
Director of Government Affairs kate.miller@tu.org

Celebrating the passing of the CORE Act through U.S. House of Representatives

Image credit: https://conservationco.org/

Excerpt from the Real Vail article.

Today, Trout Unlimited celebrates the Colorado Outdoor Recreation & Economy Act (CORE Act) passing through the U.S. House of Representatives and moving on to the U.S. Senate. This important legislation conserves more than 400,000 acres of public lands in the Centennial State, along with fish, wildlife and the traditional sportsmen’s values of Colorado’s Western Slope. 

 “Hunters and anglers across the state applaud the members of the House for passing this important legislation protecting our public lands and the vital fish and wildlife habitat they provide here in Colorado,” said Scott Willoughby, Colorado public lands coordinator for Trout Unlimited. “The CORE Act balances public access to fishing, hunting, and recreation in these special places with protection of pristine headwaters that support native trout populations. Following today’s vote, we look forward to working with the Colorado delegation to move this bill forward in the Senate.” 

The four components of the CORE Act provide protection and improved access to public lands in western Colorado. It expands wilderness designations in the San Juan Mountains, increases fishing access and streamlines management of the Curecanti National Recreation Area and permanently protects the Thompson Divide from inappropriate oil and gas development. Lastly, it also establishes special management areas along the Continental Divide, including a first-of-its-kind National Historic Landscape honoring Colorado’s military legacy at Camp Hale where the 10th Mountain Division trained for winter combat in World War II. 

Trout Unlimited members have long advocated for protection for these unique landscapes, including the Thompson Divide, where nearly half of the CORE Act’s protected lands provide a largely roadless refuge for numerous economically and ecologically important wildlife species, including native trout and large populations of elk and mule deer that require room to roam. 

 “Preserving wildlife connectivity and protecting our waters and lands is of utmost importance to sportsmen living in Colorado as well as those who travel here to take advantage of what these special areas offer,” Willoughby said. “Economic impacts from sportsmen are a big driver in Colorado, so ensuring more access and opportunities is critical to maintaining our recreation economy and the license revenue required by Colorado Parks and Wildlife for fish and wildlife management.” 

A map of lands affected by the CORE Act in Colorado. (Handout from U.S. Rep. Joe Neguse and U.S. Sen. Michael Bennet)

Among the benefits of the CORE Act, the Curecanti Boundary Establishment Act promises to restore an additional 11.5 miles of public fishing access in the Gunnison River Basin due to an as-yet unfulfilled mitigation obligation from the U.S. Bureau of Reclamation dating back to the creation of Blue Mesa Reservoir and the surrounding Aspinall Unit in the late 1960s. Additionally, the San Juan Mountains Wilderness Act will benefit the San Miguel, Uncompahgre, and Animas watersheds, protecting 2.5 miles of Colorado River cutthroat trout habitat, which currently occupy less than 10 percent of their historic range. 

“TU deeply appreciates Representative Neguse’s efforts and the strong support of Chairman Grijalva for enabling its passage, said Willoughby. “It is a true testament to Colorado’s commitment to investing in our treasured public lands and outdoor recreation economy.” 

Read More: https://www.aspendailynews.com/news/house-passes-core-act-which-protects-thompson-divide/article_d3632ad2-fc07-11e9-90e4-cffdd277f613.html

CTU Supports Proposition DD: A letter from the Executive Director

With Election Day right around the corner, I’m writing on behalf of Colorado TU to recommend you vote YES on Proposition DD and help invest in the future of Colorado’s rivers and watersheds.

Proposition DD would add a 10% tax on casinos’ sports betting, generating up to $29 million in annual proceeds to invest in Colorado’s water future. Only the casinos will pay, but all of Colorado stands to benefit.

The last time a major statewide water funding measure was on the ballot – the $2 Billion Referendum A in 2003 – Colorado TU was a vocal opponent. So what has changed? This time, there is a plan for how to use the funds – Colorado’s Water Plan – and it places much-needed emphasis not only on meeting water needs for our growing population but also on preserving the healthy rivers and productive agricultural lands that are so much a part of what makes Colorado a great place to live and work.

Colorado is in urgent need of more funding to implement its water plan because its population is expected to double by 2060, and current water supplies cannot keep up with demand in the future. Investment in our water system must be a priority to meet our water needs while preserving Colorado water values for healthy rivers and thriving farms. From projects for river and watershed health, to modernizing irrigation systems to improve efficiency, to conducting balanced multi-purpose projects, funding for Colorado’s Water Plan is critical to preserve our Colorado way of life.

Just as Great Outdoors Colorado (GOCO) has done for our open space and park lands, Proposition DD promises to spur much-needed investments and partnerships to benefit our waters. It is an important down-payment on Colorado’s water future.

Please join us in supporting Proposition DD – and don't forget to tell your friends and family to do the same!

Sincerely,
David Nickum, Colorado TU Executive Director

In the News

• https://www.postindependent.com/opinion/letter-support-colorado-proposition-dd/

• https://yesondd.com/

• Trout Unlimited: Colorado has a water plan; now let’s fully fund it: https://www.tu.org/blog/colorado-has-a-water-plan-now-lets-fully-fund-it/

TU sues EPA over removal of Bristol bay protections

FOR IMMEDIATE RELEASE: 

Contact:  

Chris Wood, Trout Unlimited CEO, (571) 274-0601 

Nelli Williams, Trout Unlimited Alaska program director, (907) 230-7121 

Trout Unlimited sues EPA over removal of Bristol Bay protections 

Sportsmen argue EPA ignored sound science, prioritized advancement of Pebble mine over fishing industry. 

ANCHORAGE, Alaska — Trout Unlimited, represented pro bono by Sheppard, Mullin, Richter & Hampton LLP, filed a lawsuit today against the U.S. Environmental Protection Agency (EPA) over its recent decision to withdraw protections for the Bristol Bay region of Alaska. Called the Bristol Bay Proposed Determination, the protections would have limited the scope and scale of impacts from the proposed Pebble Mine to the world-class salmon, trout and water resources of the region. 

“The practical effect of the EPA’s decision was to help out a mine that would devastate a fishing and hunting paradise,” said John Holman, who grew up in the area and is a second-generation owner of No See Um Lodge, a Trout Unlimited member business. “I cannot in good faith pass a business down to my family that will become a financial burden if the Pebble Mine is built. Who does our government work for? This decision made it seem like the EPA and our elected officials are writing off thousands of American jobs, and businesses like mine so a foreign mining company can obliterate the land I depend on, then walk away.”  

Trout Unlimited’s lawsuit alleges the EPA ignored science and the potential impacts of developing the mine when it withdrew the Bristol Bay Proposed Determination, and in doing so violated the Administrative Procedures Act and Clean Water Act. The U.S. Army Corps of Engineers cannot issue a permit to Pebble if the EPA’s decision on the Bristol Bay Proposed Determination is overturned.  

“Billions of dollars have been spent in attempt to restore salmon runs in the Pacific Northwest. Meanwhile, Bristol Bay sets records for its salmon returns year after year. All we need to do is have the humility and common-sense to leave this landscape alone,” said Chris Wood, president and CEO of Trout Unlimited. “Sacrificing a place such as Bristol Bay for some gold is a short-sighted fool’s errand. We are not a litigious organization, but we and millions of other sportsmen and women will not allow greed to compromise the most important salmon fishery on the planet.” 

The Bristol Bay region of southwest Alaska supports the world’s most abundant sockeye salmon run, Alaska’s best Chinook salmon run, and a world-famous trophy rainbow trout fishery. These fisheries are the foundation for a robust sportfishing industry, a rich cultural history and subsistence way of life supporting more than 30 Alaska Native Tribes, and a valuable commercial fishing industry. Bristol Bay fishing—including sport, commercial and subsistence—accounts for thousands of sustainable local jobs and more than $1.5 billion in annual economic activity.  

Citing this unique and wild character, and the economic and cultural importance of the region, the EPA prepared the Bristol Bay Proposed Determination after years of scientific research and multiple peer reviews, with many thousands of Alaskans and millions of Americans voicing support for protecting the region.  

“Any action that jeopardizes this fishery and extremely unique place is unacceptable,” said Nelli Williams, Alaska director for Trout Unlimited. “The proposed Pebble mine is widely opposed by anglers and hunters across Alaska and the country. This lawsuit is a step to hold the EPA accountable to their own science and American sportsmen and women, not a foreign-owned mining company.” 

Photo by Fly Out Media.

“Look at what’s at stake and the maddening progress Pebble is making here at our expense,” said Nanci Morris Lyon, local resident and owner of Bear Trail Lodge, a Trout Unlimited member business. “Contrary to science, the will of the people, and common sense, Pebble is advancing toward their key permit, thanks in part to agencies giving them handouts. This lawsuit calls that out. We can’t afford Pebble in Bristol Bay, and that means we need science, oversight, integrity and persistence.” 

“Removing the Proposed Determination was one of the most poorly justified decisions in the history of the Clean Water Act and is an affront to the fisheries, local communities, and sportsmen and women around the world,” said Wood.  

### 

Trout Unlimited is the nation’s oldest and largest coldwater fisheries conservation organization dedicated to conserving, protecting and restoring North America’s trout and salmon and their watersheds. In Alaska we have worked in the Bristol Bay region for almost two decades along with thousands of members and supporters including dozens of businesses that depend on the fishery of the region. Follow TU on Facebook, Twitter, and Instagram and our blog for all the latest information on trout and salmon conservation. For more information on the Save Bristol Bay campaign go to SaveBristolBay.org.