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We All Live Downstream (of Waterbodies that are about to Get Dirtier)

3/29/2019
By Olivia Green and Alma Lowry

“Isolated” wetlands in the Chippewa Range in Wisconsin that may lose protection under the proposed rule|
(Photo from Wisconsin Wetlands Association wisconsinwetlands.org)

Hydrologically, it’s a fact: we are all connected through the hydrologic cycle. Some hydrologic pathways are straightforward—headwater streams feed into bigger creeks and rivers until they flow into the ocean. Some are complex—water disappearing and reappearing between the surface and subsurface several times before joining a permanent surface flow. These interconnections mean that damage done even to seemingly isolated waters can extend to major waterways. The Environmental Protection Agency (EPA) is poised to ignore these facts in proposed new Clean Water Act (CWA) regulations, issued on February 14, 2019.

The goal of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U. S. C. §1251(a). The CWA does this by prohibiting the discharge of pollutants into or filling in “waters of the United States” without a permit. But what are “waters of the United States” (WOTUS)? That definition is at the heart of the proposed regulatory changes.

Although the CWA may be seen as focused on larger, navigable waters like the Mississippi River, courts have long interpreted the CWA “as an all-encompassing program of water pollution regulation,” Milwaukee v. Illinois, 451 U.S. 304, 318 (1981), expressing “the evident breadth of congressional concern for protection of water quality and aquatic ecosystems” U.S. v. Riverside Bayview Homes, 474 U.S. 121, 133 (1985). Decades of research have shown that the integrity of our nation’s waters depends on the health of the entire system, including ephemeral and intermittent headwater streams and wetlands. The EPA’s proposed rule ignores basic science and congressional intent and defines WOTUS to eliminate:
ephemeral features (defined as flowing or pooling only in direct response to precipitation)
non-navigable, isolated lakes and ponds
wetlands not adjacent to a jurisdictional waterbody and lacking a direct hydrological surface connection to a jurisdictional waterbody in a typical year (“isolated wetlands”)

EPA’s illustration of the revised WOTUS definition. Note the illustration doesn’t show groundwater connections between “isolated” features and other waterbodies. In reality, such isolation is extremely rare.

The proposed changes will strip protections from more half of the waterways in this country and have enormous consequences. Ephemeral streams and ditches could become unregulated dumping grounds for pollutants, which then make their way into major water sources via seasonal flows or flooding. Construction or filling in ephemeral waterways may interfere with their seasonal role as recharge sources for perennial or intermittent waterways or as seasonal habitat.

The loss of wetlands protection is similarly critical. Truly isolated wetlands are extremely rare. Nearly all wetlands are places of preferential groundwater recharge and high degrees of surface and groundwater interaction. Even without obvious surface water connections, water from a wetland will eventually reach downstream navigable waters through subsurface flow. Under the proposed rule, pollutant discharges to isolated wetlands won’t be prohibited by the CWA and contaminants may flow through these underground pathways to groundwater and navigable surface waters.

The revised CWA rules would allow “isolated wetlands” to be filled in and destroyed with impunity. This could have dire ecological impacts on wildlife, such as salamanders and wood frogs, which depend on “isolated wetlands” and ephemeral ponds for breeding. This short-sighted exclusion also puts at risk important flood attenuation and water filtration protections that wetlands provide by interrupting the flow of stormwater runoff into lakes and streams, providing temporary storage of flood waters, and trapping some contaminants and nutrients in wetlands soils where toxins may degrade and excess nutrients may be used by plants. As Justice Kennedy observed, “it may be the absence of an interchange of waters prior to the dredge and fill activity that makes protection of the wetlands critical to the statutory scheme.” Rapanos v. U.S., 547 U.S. 715, 775 (2006) (Kennedy, J., concurring).

EPA’s own research recognizes the “connectivity” and potential importance of “isolated wetlands” and ephemeral streams. EPA’s 2015 “Connectivity Report,” which thoroughly reviewed the available science and was vetted by experts in the field, found that the research:
unequivocally demonstrates that streams, individually or cumulatively, exert a strong influence on the integrity of downstream waters. All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported. (at 6-1)

Even “isolated wetlands” were found to have potential connectivity, depending on location and time of year. Certainly, the science does not support excluding either type of water body from CWA regulation as unrelated to the “chemical, physical, and biological integrity of our Nation’s waters.”

EPA suggests that its decision to categorically exclude certain waters from the WOTUS definition is simply shifting regulatory authority to the states, arguing “that science cannot be used to draw the line between Federal and State waters.” 84 Fed. Reg. 4154, 4176 (Feb. 14, 2019). Because states can regulate more broadly under their own jurisdiction, EPA argues that ephemeral streams and isolated wetlands can still be protected by state law, but are simply outside the proper jurisdiction of federal law.

This argument is a fallacy. Downstream states will be powerless against the regulations, or lack of regulations, implemented by upstream neighbors. Pollution and floodwaters flow downstream. Unchecked development of wetlands in an upstream state could leave downstream states vulnerable to intensified flooding with no recourse. Similarly, degradation of critical habitat in ephemeral streams could affect downstream fisheries. In each case, downstream states’ only recourse is to set disproportionately higher standards in their state, putting them at an economic disadvantage. A uniform, federal scheme is necessary to ensure adequate water protection for all, with states free to set higher standards as desired.

How to Get Involved

ASLF is preparing comments on the proposed new rule, challenging EPA’s decision to exclude critically important ephemeral waters and inland wetlands from CWA protections. Please join us and many other environmental organizations in urging the EPA to rely on established science, not partisan politics, to set the appropriate scope of these regulations. More information is available on the EPA website. Draw from our suggested comments or write your own.

COMMENTS ARE DUE BY APRIL 15, 2019!

Remember, we all live downstream.

ASLF Joins 145 Organizations in Opposing DOI Transparency Rollbacks

2/8/2019
By Olivia Green and Alma Lowry

On December 28 — in the hectic time between major holidays AND during the federal shutdown — the Department of Interior (DOI) published a notice of its intent to make expansive changes in how it shares information with the public. Rather than the standard 45 to 60 days, the public had only one month to review the proposed changes to these Freedom of Information Act (FOIA) regulations and submit comments. Thanks to the hard work of the Southern Environmental Law Center, the Wilderness Society, Public Employees for Environmental Responsibility, and several other environmental groups that took the lead in drafting comments, ASLF was able to make its voice heard on these troubling regulations, which would limit the transparency of DOI decision-making.

FOIA was enacted to ensure that the public could understand federal agency actions by providing access to their written records. FOIA regulations guide how agencies respond to information requests from the public, including environmental advocates and journalists. DOI’s proposed changes would allow DOI agencies (e.g., Bureau of Land Management, National Park Service, Bureau of Reclamation) to reject record requests they deem “unreasonably burdensome” or those that would require “inspection of a vast quantity of material,” among other major transparency rollbacks. Unfortunately, in the past two years, DOI has characterized even simple requests for a single report as “excessive or voluminous” to justify months-long delays in the release of the information. ASLF was concerned that enshrining an exception for “unduly burdensome” requests in DOI’s FOIA regulations, along with other revisions, would only invite more foot-dragging and secrecy.

The original deadline for comments was January 28, the first day back for furloughed federal employees. No DOI staff was available to answer questions or provide assistance during the shutdown, and the public was left wondering if there would be an extension to comment. Once the government reopened, DOI issued a one day extension, citing technical glitches on the commenting platform.
ASLF joined 145 other organizations from across the country in opposing these major rollbacks in government transparency and the process by which they were made public. ASLF is committed to protecting avenues for public engagement and will continue to advocate for transparent, accountable government agencies. We invite you to join us!

Gifts from the Mother Tree

10/5/2018
By Alma Lowry

Atlantic States Legal Foundation (ASLF) believes in the power of green. Our staff is deeply engaged in the expansion and maintenance of the urban tree canopy and rural reforestation in our region. Communities reap real economic, environmental, and emotional benefits from trees and other greenery. These benefits are magnified when native species are used, because native plants are more adaptable to local climate, outperform non-natives in supporting local fauna, and provide better ecosystem services. ASLF is working to expand access to genetically local native species through its Mother Tree program.

Through this program, now in its third year, ASLF identifies potential Mother Trees by species, size, and age. We look for hardy stock of the species of interest, which were planted or naturally established decades ago before commercial cultivars were widely available. Once potential Mother Trees are identified, they are entered into our database and tracked. In the fall, staff and community partners collect seeds and send them to our project partner, Forest Keeling Nursery in Missouri, which propagates the seeds and grows Mother Tree seedlings using its patented Root Production Method (RPM) technology. Together, we are building an inventory of trees genetically local to Syracuse and central New York, which will be available for reforestation, restoration and urban forestry projects.

Most of the Mother Trees identified so far are located on public property in the City of Syracuse, and seeds are collected with the permission and assistance of city government. To expand our Mother Tree “stock,” we are looking for older, healthy, large trees whose native range includes central New York and which are located where seed collection is permissible and possible.

If you are in the Syracuse area and have a Mother Tree candidate, please contact us with a photo and species information, if available. Once we confirm the species and age, your tree may become part of our project. Together, we can work toward the rebirth of our native tree canopy in Syracuse and Central New York – a gift from the Mother Tree.

Consuming Fish from Onondaga Lake: An Important Environmental Health and Justice Issue

8/20/2018
By Paul Harris and Alma Lowry

The on-going recovery of Onondaga Lake is the story of a natural resource rebounding from the brink of oblivion and a cornerstone of Atlantic States Legal Foundation’s (ASLF) legacy. Today, over 60 species of fish can be found in the Lake and recreational anglers are rediscovering the world-class fishing opportunities provided. However, this good news brings challenges of its own. While recreational anglers may enjoy catch-and-release fishing, a recent study by the New York State Department of Health (DoH) found that many Syracuse residents were catching and eating the fish at unsafe levels and, even more concerning, were unaware of the health risks posed by this practice.

Despite improvements in water quality, mercury and PCB persist at unsafe levels in Onondaga Lake fish and sediments. Eating fish from Onondaga Lake increases the risk of cancer, birth defects, and impaired childhood development. In response, DoH issued a strict fish consumption advisory for Onondaga Lake, which suggests no more than one lake-caught fish meal per month for most people and most fish species. Children and women of child-bearing age are advised to eat no Onondaga Lake fish. Given the hazard posed, DoH’s finding that the majority of anglers surveyed within the Bhutanese, Burmese and non-immigrant Southside community were unaware of the fish advisory – and that many refugees had elevated levels of blood mercury – is deeply alarming. More needs to be done, and quickly.
This environmental justice issue stems in part from inadequate risk communication. In our experience, Burmese and Bhutanese refugees, other refugee groups, Spanish-speaking immigrants and migrants, and lower-income inner-city residents are most likely to be fishing for food and least likely to be aware of the advisory. The DoH fish consumption advisory is not designed to address cultural and social differences, English language ability, literacy, and other factors related to information access. The results of DoH’s study demonstrate this gap.

Addressing this urgent public health issue has been on the ASLF agenda for more than a decade. Working with the Onondaga Lake Watershed Partnership (OLWP), we have been developing a strategy to reach at-risk angler groups, as well as those who consume fish from Onondaga Lake. One recent success has been the installation of warning signs at various fishing access points around the lake. These signs are in four different languages (English, Spanish, Burmese, Nepali), and present the advisory in graphical form for the benefit of those with low or no literacy.

While this achievement is gratifying, more networking, education, and direct communication is needed to increase awareness. Working with OLWP, we are developing a plan to do this work. We are developing tools to identify the communities most at risk of exposure through fish consumption and are building partnerships with the community groups, and refugee service organizations that will be crucial in securing the buy-in of these groups.

ASLF is committed to protecting communities from the dangers of contaminated fish consumption. However, funding and volunteer support are desperately needed for this labor-intensive work. If you would like to find out more about how you can help – whether through a donation or volunteering time – please contact us.

To access ASLF fish advisory pamphlets (English, Spanish, Burmese) and other related information please visit our Health Advisories & Outreach page.

The Future of I-81: Concrete Skyway or Green Community Grid

7/9/2018
By Alma Lowry

I-81 Underpass (Daily Orange)

Community Grid (NYS DOT)

Although Atlantic States Legal Foundation has worked throughout the United States and across the world, we have a special concern for Syracuse, our host city. For more than five years, Syracuse has been debating what to do with the aging I-81 highway viaduct, which runs through the heart of the city. Current proposals include rebuilding the elevated highway to meet modern safety standards, putting the highway into a tunnel, or demolishing the viaduct and replacing it with a revitalized community grid. For both environmental and social justice reasons, Atlantic States Legal Foundation (ASLF) supports the community grid option and will be looking for opportunities over the coming year to advocate for this result.

The current highway is a textbook case of social and environmental injustice. I-81, like other highway projects of its era, was designed to provide easy access to and from the suburbs and to “cure urban blight” by displacing “unsightly” and impoverished minority communities. In Syracuse, the disrupted community was the mostly African-American 15th Ward. Highway construction required demolition of hundreds of homes, divided the community, and left acres of undevelopable wasteland under the viaduct. The remaining residents were left in the shadows of the highway and suffered from air pollution, noise pollution, and other environmental ills generated by tens of thousands of cars, trucks, and buses that traversed the highway daily.

The community grid alternative will begin to fix this problem. With the community grid, through traffic will be rerouted onto an existing ring road reducing traffic, particularly truck traffic, through the heart of Syracuse. This will reduce air and noise pollution. Remaining traffic will be dispersed rather than forced onto a limited number of congested routes. And the visual blight of this massive concrete structure, which looms over the community, will be removed, opening space for sunshine, green space, community amenities, and new businesses.

From an environmental perspective, the I-81 corridor has always been a serious problem, generating some of the most persistent and difficult water quality issues in the watershed. The area around I-81 and the connecting NY-690 generates 66 million gallons of runoff annually and frequently contributes to combined sewage discharges into local creeks. The community grid would eliminate the 30 acres of impervious area created by the viaduct itself and allow better, greener stormwater management on 260 acres adjacent to the highway. Street level stormwater systems can emphasize infiltration and capture rather than simply sending runoff into waterways via combined sewers or to the regional wastewater treatment plant for expensive and unnecessary treatment. The community grid would allow development similar to that found in Syracuse’s Connective Corridor, which dramatically reduces stormwater runoff while providing bike paths, pervious parking spaces, and flowering infiltration beds. Rather than a concretized community, the former 15th Ward could enjoy a walkable, bikeable and green neighborhood.

ASLF is committed to seeking innovative and practical solutions for environmental issues. The community grid alternative offers unlimited opportunities for creative ways to manage stormwater, expand urban greenspace and move toward a more resilient, sustainable Syracuse. We look forward to finding ways to spread this message in the coming year and to help build the Green Community Grid in the future.