SUMMARY: EPA chief Scott Pruitt recently promised an aggressive rollback of regulations that had been put in place by former President Obama, and President Trump made good on Pruitt's promise with an order to dismantle a rule about smaller bodies of water. William Brangham learns more from Juliet Eilperin of The Washington Post about what today's move means for water regulations.
WILLIAM BRANGHAM (NewsHour): It's called the Waters of the United States rule, and it has to do with which smaller bodies of water, like streams and wetlands, should be regulated and protected by the federal government under the Clean Water Act.
That question has been litigated in court battles for years.
And so for more on what today's move is all about, I'm joined now by Juliet Eilperin, who's been reporting on this for The Washington Post.
Juliet, welcome back to the NewsHour.
Before we get into the rollback, can you tell me what this rule is really about? And this was, as I understand it, a very big part of Obama's environmental legacy.
JULIET EILPERIN, The Washington Post: This is a 2015 rule, which has been subject to litigation, which tries to clarify what, as you alluded to, has been really a 30-year battle over what jurisdiction the federal government has over these smaller streams, some are intermittent, some wetlands, and essentially what the federal government can tell Americans, including farmers, ranchers, homebuilders, what they can and cannot do, even when it has to do with private property, because it has implications for smaller water bodies that are crucial water supply for larger water bodies across the United States.
WILLIAM BRANGHAM: So, is this about a rule that is trying to protect these waters from pollution? Is that the issue here?
JULIET EILPERIN: Partially, it's pollution, but what it pertains to many often is whether they can be drained or filled in. All of those actions, which are in some ways the inevitable product of these operations that happen in various different sectors of the economy, have implications for whether that water will then flow into larger water bodies.
And so it is usually a restriction on whether you can drain something or dig up something, as opposed to, for example, just dumping in pollutants into a small water body, although, technically, it could apply to that as well.
As the western United States struggles with chronic water shortages and a changing climate, scientists are warning that if vast underground stores of fresh water that California and other states rely on are not carefully conserved, they too may soon run dry.
Heeding this warning, California passed new laws in late 2014 that for the first time require the state to account for its groundwater resources and measure how much water is being used.
Yet California's natural resources agency, with the oversight and consent of the federal government, also runs a shadow program that allows many of its aquifers to be pumped full of toxic waste.
Now the state — which relied on aquifers for at least 60 percent of its total water supply over the past three years — is taking steps to expand that program, possibly sacrificing portions of dozens more groundwater reserves. In some cases, regulators are considering whether to legalize pollution already taking place at a number of sites, based on arguments that the water that will be lost was too dirty to drink or too difficult to access at an affordable price. Officials also may allow the borders of some pollution areas to be extended, jeopardizing new, previously unspoiled parts of the state's water supply.
The proposed expansion would affect some of the parts of California hardest hit by drought, from the state's agriculturally rich central valley to wine country and oil-drilling fields along the Salinas River. Some have questioned the wisdom of such moves in light of the state's long-term thirst for more water supplies.
“Once [the state] exempts the water, it's basically polluted forever. It's a terrible idea,” said Maya Golden-Krasner, staff attorney for the Center for Biological Diversity, which is suing California to force it to complete an environmental impact assessment of the proposed aquifer changes. California, she said, is still offering breaks to its oil industry. “We're at a precipice point where the state is going to have to prioritize water over an industry that isn't going to last.”
California is one of at least 23 states where so-called aquifer exemptions — exceptions to federal environmental law that allow mining or oil and gas companies to dump waste directly into drinking water reserves — have been issued.
Exemptions are granted by a U.S. Environmental Protection Agency division that has had difficulties in record keeping and has been criticized for its controversial management of groundwater reserves. A 2012 ProPublica investigation disclosed that the federal government had given energy and mining companies permission to pollute U.S. aquifers in more than 1,000 locations, as part of an underground disposal program that allows toxic substances to be disposed of in nearly 700,000 waste wells across the country.
In many cases, the exact locations of the exemptions and the precise boundaries of areas where aquifer pollution was allowed had been left poorly defined, raising concerns that waste might reach adjacent drinking water. Several states, including California, have since admitted they've allowed that to happen.
As droughts have worsened and aquifers have become more cherished, the implications of aquifer exemptions have become more serious, even as regulators have continued to issue these legal loopholes.
The federal Safe Drinking Water Act distinguishes between underground aquifers that are too salty or dirty to ever be used and those that are pure enough to drink from, defining the latter as an “underground source of drinking water.” Protection of drinking water is required under the law, and any polluting of it through waste disposal, oil and gas production, or mining is a crime. Companies, however, can file petitions to change how an aquifer is classified, arguing that it either has already been polluted or is too deep underground to likely be used. Even if water is relatively clean, if the EPA approves a change in definition, an aquifer is no longer considered a “source of drinking water,” and is no longer protected.
Applications to exempt an aquifer are supposed to undergo extensive scientific scrutiny, and today they usually do. But when the Safe Drinking Water Act was initially implemented, the federal government traded away much of that scrutiny as a compromise to win state and industry support for the new regulations. The EPA granted blanket exemptions for large swaths of territory underlying California and Texas oil fields, for example, and did the same in other states with large energy and mining industries. Documents from California, dating to 1981, estimate that at least 100 aquifers in the state's central valley were granted exemptions.
It's not always clear where the aquifers polluted under these early exemptions are located. For decades, both state officials and the federal government have struggled just to identify the precise places where the permits they issued applied, and where pollutants were being injected into groundwater. A spreadsheet listing thousands of exempted aquifer locations nationwide, provided to ProPublica in 2012 by the EPA in response to a Freedom of Information request, listed incomplete location coordinates for a majority of the exemptions, describing them merely by the county or township in which they are located . When pressed for more information, an EPA official admitted that was all the information the agency had.
California's exemption records are only slightly more precise, and no less problematic.
Most of them appear to be best described in the appendices of a tattered 1981 document, yellowed with age. (State officials suggested to ProPublica this week that other records exist but could not produce them.) Overlying sections of a simple map of the state's vast central valley, hand-drawn boundaries are sketched over areas equivalent to thousands of acres and shaded in. There are only vague descriptions like depth and name of the geologic formation, but nothing as precise as latitude and longitude coordinates, for the borders of the shaded areas. “Unfortunately, what we do not have is an easy-to-use, enumerated list,” Don Drysdale, a spokesman for the California Department of Conservation, wrote to ProPublica in an email this week. The state has never endeavored to measure the total volume of water it has allowed to be spoiled.
The waste being injected into exempted aquifers is often described as merely “salt water.” Indeed, only “non-hazardous” substances are supposed to be pumped into aquifers, even with exemptions. But under concessions won by the oil industry and inserted into federal law, oilfield production waste — including chemicals known to cause cancer and fracking materials — are not legally considered “hazardous,” a term with a specific definition in federal environmental law. According to the California Department of Conservation, which regulates the state's oil and gas industry, “drilling mud filtrate, naturally occurring radioactive materials (NORM), slurrified crude-oil, saturated soils, and tank bottoms” are all allowed to be injected into aquifers as “non-hazardous” material.
Despite the substantial wiggle room granted by law, California has come under fire for not managing its roughly 52,000 waste wells properly. In 2011, the EPA sharply criticized the state for keeping poor records, mismanaging its environmental reviews, and failing to follow federal law. It suggested that the state's autonomy over its groundwater regulations could be revoked, and that the EPA would impose federal oversight.
To fend off that change, California launched its own review and, in 2014, began to uncover extraordinary lapses: Thanks to poor record keeping and confusion over which aquifers had been written off, the state found more than 2,000 wells were injecting toxins not into exempt areas, but directly into the state's drinking water aquifers. In 140 cases wastewater was being put into the highest quality aquifers, raising concerns in the state capitol about the threat to public health. California shut down some 56 waste wells last year until it could sort out the mess, and it passed improved regulations that will give the state's water agency a role in the approval process. Still, it has allowed injection to continue until the end of this year in 11 drinking water aquifers that it has to reevaluate because neither the feds nor state officials are sure whether they exempted them in the 1980s. The state is also allowing injection to continue until next February in other drinking water quality aquifers pending the approval of new aquifer exemptions that would extend that indefinitely.
Those 11 aquifers have been the focus of much of the state's renewed attention, but California still hasn't confirmed the borders of the hundreds of legacy exemptions in other aquifers that date back to the 1980s. Without taking this step, the state's top water official said, there's no way to know how much clean water California still has.
“That's part of the whole point,” Felicia Marcus, chair of the California State Water Resources Control Board told ProPublica, “not injecting into aquifers that people are depending on now, but also to go back and make sure we were not too loose on it in the past. Certainly the discovery of all these mistakes puts us on red alert.”
Now California — with Marcus' blessing — may fix the problem by expanding the boundaries of exempted areas rather than identifying and restricting them.
The Department of Conservation is poised to consider as many as 70 new aquifer exemptions, redrawing some to include areas where companies have been injecting waste illegally into drinking water. In the state's central valley, where a substantial portion of the nation's fruits and nuts are grown using groundwater, three applications for aquifer exemptions around the Fruitvale, Round Mountain and Tejon oil fields — all in or near Bakersfield — are already undergoing state reviews that would precede approval by the EPA.
And in February the state submitted final plans to the EPA to exempt a new portion of the Arroyo Grande Aquifer in Paso Robles, allowing oil companies to inject waste or fluids to help in pumping out more oil. In that case, Marcus and the state's Water Resources Control Board — the agency in charge of the quality of the state's water supply — say they agreed to allow the exemption because the aquifer was already of poor quality and would not be used in the future. Marcus said she was convinced the contaminants injected there could not migrate underground in ways that would affect other, cleaner water sources nearby — that they would be sealed in by the geologic structure of the region.
Still, the areas California is writing off are surrounded by underground water reserves that get used every day. An exemption might cover the water soaked up in one particular layer of rock, at a certain depth, even while wells extract water from aquifers above or below it. And, according to Golden-Krasner, the state's assessment that pollution will remain confined is often dependent on an oil company maintaining a specific pressure underground, making the future of the clean water vulnerable to human error.
In our 2012 investigation, ProPublica found numerous cases in which waste defied the containment that regulators and their computer models had promised, and contamination spread. In many instances, injection wells themselves punched holes in the earth's seal and leaked. In others, faults and fissures in the earth moved in ways that allowed trapped fluids to migrate. Several of the problems documented had occurred in California.
The area around Bakersfield affected by the majority of the new aquifer pollution applications is also home to one of the state's largest underground water storage facilities, the Kern Water Bank, relied on by California farmers. It lies directly above at least one of the exempted aquifers and is pierced by dozens of oil wells. The state's water board supports the exemptions, but their close proximity to drinking water could be reason to worry, acknowledges Jonathan Bishop, the chief deputy director of the Water Resources Control Board.
“Are we concerned that wells going through aquifers that have beneficial use be maintained and have high integrity? Yeah,” Bishop said. “They do go through drinking water aquifers in many locations, not just in Bakersfield.”
Opponents of the exemption program are infuriated by the fact that applications are evaluated on an isolated basis, without any consideration of the state's larger water supply issues. The original criteria for aquifer exemptions set out in federal statute never contemplated that in California and plenty of others states, multiple exemptions could be granted in close proximity or that polluted areas could be sandwiched between clean water reserves. Neither state nor federal codes call for any broader analysis of the cumulative risk.
“Their whole review is from the perspective of can we check the boxes on federal criteria and the state law,” said John Noel, who covers oil and gas issues for the environmental group Clean Water Action. “Nobody is asking the question, if we exempt these five aquifers what is the long term supply impact? How much water are we writing off?”
SUMMARY: NASA has found evidence of liquid water on Mars. Science correspondent Miles O’Brien joins Judy Woodruff to discuss the inevitable question: Does this mean there could be some form of life on the red planet?
JUDY WOODRUFF (NewsHour): Finally tonight: big news from outer space.
NASA today announced that it has found evidence of liquid water on Mars, at least during certain seasons of the Martian year. The discovery was made through satellite images, which revealed darkly shaded streaks on slopes of craters and hillsides. They darken and lighten over time as water seeps across the surface, and then evaporates.
For more on what it all might mean, I’m joined by science correspondent Miles O’Brien.
Hello again.
MILES O’BRIEN (NewsHour): Judy, good to see you.
JUDY WOODRUFF: So, how do they know it’s water, Miles? They don’t — there hasn’t been a human there to look at it. They’re looking through satellites. What — how do they know?
MILES O’BRIEN: The HiRISE instrument, which is on the orbiting Mars Reconnaissance Orbiter, is a very sophisticated instrument and has the ability to do spectral analysis.
So, it can actually look at how light moves through whatever is flowing there. And it gives unique signatures of water and in this case a lot of salt. It’s the salt that is the key here, because Mars is cold and has an atmosphere which is almost nonexistent. So, the idea of water flowing there is hard to imagine.
JUDY WOODRUFF: But this flies in the face of what scientists thought for a long time, or have they been building up to this?
MILES O’BRIEN: Well, there is a huge body of evidence that Mars at one time was warm and wet, and we think probably a cushy birth for life.
So, we have been looking for evidence of ancient life, fossils, for example. There has always been this thought that maybe the water is underneath in an aquifer. Could it somehow rise to the surface on certain occasions in certain ways? That’s been a big question.
They first spotted these streaks back in 2010. It sure looked like water. But what would keep it flowing? And the key was, they found these percolates, these salts in there. It’s extremely salty water. Think of why do — how do we get snow off our roads in the winter? We use salt.
JUDY WOODRUFF (NewsHour): ..... The state of our drinking water and how two major problems in American cities these past few months are calling new attention to concerns over supply and protection.
Hari Sreenivasan in our New York studios has our conversation.
HARI SREENIVASAN (NewsHour): The most recent case, Toledo, Ohio, where contamination from an algae bloom in Lake Erie temporarily made the water supply unsafe for 400,000 people and stirred new worries throughout the Great Lakes region.
That followed a major disruption earlier this year in West Virginia, after chemicals leaked into the Elk River around Charleston.
David Beckman wrote about these matters in an op-ed for The New York Times. He’s with the Pisces Foundation, an environmental philanthropy based in San Francisco, and joins me now.
So, Mr. Beckman, I know that we’re better off than 800 million people or so on the planet who don’t have access to clean drinking water on a daily basis, but what do these two events start to make you think about?
DAVID BECKMAN, Pisces Foundation: Well, Hari, they make me think about the fact that, while we have come a great distance in terms of water in the United States since the early 1970s, when we had rivers catching on fire, that water pollution is not a set-it-and-forget-it situation.
And we have to be cognizant all the time and vigilant to address new threats that come on the horizon, so that we can continue to enjoy safe and reliable drinking water and clean lakes and rivers.
JUDY WOODRUFF (NewsHour): New statewide curbs on water use are taking effect in California this week as it grapples with a major drought. The entire state is suffering from a severe dry spell, and the latest data show nearly 60 percent is experiencing exceptional drought.
As the debate about conservation moves to underground water, scientists and politicians are trying to remedy the situation with research and new rules.
NewsHour special correspondent Spencer Michels reports.
SPENCER MICHELS (NewsHour): In normal years, this outcropping is an island surrounded by water that flows downhill from Yosemite National Park. But this year, the island is gone, and Don Pedro Lake, in California’s Central Valley, is an ugly bathtub with an expanding ring around it. Most major California’s reservoirs are less than half-full.
Rainfall has been sparse, and economists say the state, which produces nearly half the nation’s fruits and vegetables, faces a drop of $2.2 billion in agricultural revenue, and the loss of 17,000 farm-related jobs because of the drought.
Some crops, 5 percent of the total, have not been planted or removed because there isn’t enough water.
Felicia Marcus heads the state agency responsible for dealing with the shortage.
FELICIA MARCUS, Chair, California State Water Resources Control Board:This is the most serious drought that we have had, not just in our own generation, but in our grandparents’ generation. It’s going to have a much greater impact because we have millions more people, much more farmland, agricultural production dependent on it, and more endangered fish and wildlife that don’t have the resilience they once did.
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