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Ocean-Plastic Cleanup Schemes Fail to Separate Fantasy From Reality

Ocean-Plastic Cleanup Schemes Fail to Separate Fantasy From Reality

By Sarah (Steve) Mosko
Special to the Surf City Voice

Imagine using a thimble to empty a bathtub, with the faucet still running. That’s how experts on ocean plastics pollution generally see schemes focused on extracting the debris from the open ocean instead of strategies to prevent plastic waste from getting there in the first place.

Interest in methods to rid the oceans of plastic debris is motivated by very real threats to the entire ocean food web. The “North Pacific Garbage Patch” is the most studied of the five subtropical gyres, gigantic whirlpools where waste is picked up and concentrated by slow-swirling currents. There, plastic debris already outweighs zooplankton, tiny creatures at the base of the food web, by a factor of 36:1, according to the latest trawls by the Algalita Marine Research Institute in Long Beach.

Conventional plastics do not biodegrade on land or in water, but become brittle in sunlight and break apart into ever smaller bits of plastic, still containing toxic substances introduced during manufacture – like phthalates, bisphenol-A and flame retardants. Plastics also attract and concentrate persistent oily pollutants present in seawater. So plastic debris not only threatens sea creatures through entanglement or by clogging their digestive tracts, but also introduces dangerous chemicals into the food chain.

Except for the tiny fraction of plastics which has been incinerated, all plastic ever manufactured is still somewhere on the planet. And, with virgin plastics production still greatly outpacing recycling – which in the United States averaged only eight percent in 2010 – our oceans will continue to become more polluted with plastics until something is done to stop it. But given the vastness of the oceans, which cover 71 percent of the earth’s surface or some 360 million square kilometers, the question is, what realistically can be done?

The 5 subtropical gyres

The 5 subtropical gyres. Click to see entire image.

There are obvious realities which have to be confronted in any offshore cleanup plan, starting with how to find the debris. Gyres are loosely-defined expanses the size of continents. Even in the center where debris accumulation peaks, the effect is of a plastic soup with fragments distributed throughout the water column to a depth of roughly 20 meters. And, plastics are in no way confined to gyres, but amassing throughout marine environments as diverse as shoreline mangroves and the Arctic seafloor.

Next is the challenge of selectively extracting plastics, which become microscopic over time, without destroying sea life, and what about plastics already colonized by sea creatures? Then follows the dilemma of what to do with the plastics once extracted and, of course, how to fund the operation. Moreover, any device deployed in the sea would have to contend with the highly corrosive forces wrought by constant motion, violent storms, and accumulation of bird droppings and barnacles.

Two very different, recently proposed cleanup schemes serve to illustrate inherent challenges.

The Clean Oceans Project (TCOP) is a Santa Cruz-based non-profit proposing to build a manned, 65-foot sailing catamaran designed to skim from the sea’s surface four common types of plastics that float: #2HDPE, #4LDPE, #5PP, & #6PS. Polymers that don’t float, like nylon or #3PVC, could not be targeted. However, as 80 percent of marine plastic pollution is from land-based sources and predominantly from single-use products made of the targeted polymers, a meaningful dent might be made in the millions of tons of plastic debris believed to pollute the N. Pacific Gyre alone.

Gyre currents conveniently sweep floating debris into “streams” called windrows, visible to the naked eye. TCOP’s co-founder, Jim Holm, says that sophisticated technologies already on the open market enable both pinpointing the densest streams for cherry picking and removing floating debris from the water. Plastics are reaped onto a conveyor that, by vibrating, wards off turtles and swimming fish. Creatures which have colonized the debris would be stripped by hand and returned to the sea.

The plan is to target only debris captured by a ¼ inch mesh, as removing the larger stuff should, consequently, diminish microplastics over time. A hand-held spectrophotometer would aid in sorting plastics by polymer.

For TCOP, the game changer was stumbling upon a Japanese company, Blest, that already markets a plastics-to-light crude oil converter that can generate a gallon of fuel from eight pounds of plastic waste. There are no toxic air emissions (just water vapor and carbon dioxide) because the plastics are not incinerated, just heated for distillation into fuels.

TCOP hopes to create the first-ever shipboard converter to generate enough fuel to supplement the wind and solar sail technology that would power the catamaran. The costly transfer of collected plastics to landfills or recyclers (located primarily in China) would be eliminated. Priced at $199,000, the converter is designed to handle ~500 pounds of plastic in a day.

Plastics ingested by rainbow runner. (Algalita Martine Research Institute)

Plastics ingested by rainbow runner. (Algalita Martine Research Institute)

TCOP is seeking funding to deploy a test run in the N. Pacific Gyre. Holm is forthright in dismissing any fantasy that the endeavor would be profitable, acknowledging the indispensable support from corporate and philanthropic organizations.

A Dutch engineering student, Boyan Slat, recently made a media splash for a different cleanup design which capitalizes instead on a gyre’s natural currents to sweep debris to a fixed collection vessel anchored to the seafloor. Though few details are offered at this point, Slat conceives of a giant manta ray-shaped platform sporting two long, arm-like booms in an open “V” configuration for trapping floating debris ushered in by the current.

The round-surfaced booms would encourage plankton and other creatures to slide under unharmed, while plankton captured accidentally would somehow be separated out by gentle centrifugation. Slat has boldly predicted that only 24 such devices, staggered in a zigzagging line spanning one radius of the N. Pacific Gyre, could virtually clean it up in just five years by removing an estimated 7,250,000,000 kg of plastic debris. He postulates that the venture could be paid for by selling collected plastics to recyclers.

Slat’s design is still in the early idea stage, as his Ocean Cleanup Foundation was just founded this year, and he is seeking donations totaling $80,000 to conduct feasibility studies.

There’s been no shortage of skepticism about Slat’s proposal. For example, Stiv Wilson, policy director for the non-profit 5 Gyres Institute dedicated to remediating ocean plastic pollution, points out that the average depth of the open ocean is nearly 4,000 feet, twice the deepest successful moorings to date, and that a violent storm can destroy the sturdiest anchoring. Wilson also believes the cost alone of hauling plastics back to shore and to recyclers would exceed their market value. Add to this costly spectrophotometric analysis for sorting by polymer.

Beach cleanup is gyre cleanup. (Ocean Conservancy)

Beach cleanup is gyre cleanup.
(Ocean Conservancy)

The issue of whether there could ever be a market for plastics reaped from the sea definitely looms. Recycling weakens plastics’ polymer bonds, so plastics are generally “down-cycled” just once into end-products destined for landfills, like lumber. The first-ever plastic bottle with any post-ocean content, so far housing just one “Method” brand soap, is being marketed primarily to raise awareness about the need for packaging with recycled content. Infrastructure for recycling plastics in general within the United States remains very limited. Also, whether China will continue to accept the majority of U.S.’s plastic waste is brought into question by Operation Green Fence, China’s new policy blocking highly contaminated waste materials from entering.

Even if any gyre cleanup devices are ever successfully deployed, alone they could not solve the crisis of ocean plastics pollution, a conclusion that both Holm and Slat share. After recycling, the average American generates a half pound of plastic refuse daily (USEPA). As consumption of plastics generally parallels development, worldwide plastic waste generation is expected to continue to rise into the future. It seems delusional to believe that open ocean cleanup schemes could keep pace with new plastics entering the oceans.

The only rational approach is to focus first and foremost on stemming the flow of plastics into marine environments. In addition to maximizing recycling and placing barriers at obvious ocean entry points like river mouths, significant societal transformations are needed: for consumers, a shift away from single-use plastics and, for industry, embracing “extended producer responsibility” policies which make producers responsible for the sustainability of what they manufacture.

A good start might entail a producer fee on products made of virgin plastics, asking manufacturers to take back and recycle their products, and an end to planned product obsolescence. A study recently published in Marine Pollution Bulletin confirms that marine litter is reduced when plastics are better managed on land.

For plastics pollution already at sea, oceanographer and flotsam expert Curtis Ebbesmeyer points out that maybe half a gyre’s contents is jettisoned each rotation, ferried eventually by currents onto shores. This means anyone can lend a hand in gyre cleanup by participating in the annual International Coastal Cleanup organized by the Ocean Conservancy. The next one is on Sept. 21.

Lead photo credit: Plastic debris from N. Pacific Gyre. (Algalita Marine Research Institute)

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Mesa Water District: Vanity Leads to Questionable Media Consulting Fees at Ratepayers’ Expense

Mesa Water District: Vanity Leads to Questionable Media Consulting Fees at Ratepayers’ Expense

By John Earl
Surf City Voice

The Mesa Water District spent hundreds, if not thousands of dollars preparing its general manager and communications manager for a thirty minute interview with this reporter and researching my background, according to invoices obtained by the Surf City Voice under the Public Records Act.

The invoices are only four from a total of 30 received by Mesa Water from the consulting firm of Laer Pearce Associates between October, 2008 and December, 2012 for “branding” and general public relations and marketing assistance. But they help show the District’s obsession with its public image ever since Paul Shoenberger became its general manager in 2009 and hired Stacy Taylor as its communications manager in 2010.

That obsession became a costly exercise in vanity paid for by Mesa Water’s ratepayers.

Laer Pearce Associates invoice report

Laer Pearce Associates invoice report. Click once or twice to enlarge.

In chronological order, the first invoice (7976), for billing period Dec. 1 to Dec. 31, 2011, under “Media Relations”, states, “Attended 12/9 meeting with Paul and Stacy to discuss Surf City Voice interview request; drafted responses to questions submitted by reporter; worked with Taylor to help coordinate interview.”

Also under Media Relations:

  • Briefed Stacy on potential upcoming KOCE interview request; discussed strategy.
  • Prepared District messaging regarding ocean desalination.
  • Drafted quote and identified photos for Water Operator magazine inquiry.
  • Reviewed OC Register, Daily Pilot and local news blogs for issues pertinent to Mesa Water; provided recommendations as necessary.

Other categories were Collateral, Event Support, Branding, Community Outreach (no billings), and Website.

True to form for most of the LPA invoices, Invoice #7976 bills $4,500.00 on Media Relations of the $5,630.20 bill total, but does not show a detailed hourly breakdown for each subcategory of work, so there is no way of knowing how much time was spent researching the Surf City Voice or other news services or how much it cost per hour (when asked to explain the incomplete billing procedures, Taylor did not respond).

Likewise, Invoice #7982 (Jan. 1 – Jan. 31, 2012) lists $3,610.00 billed for Media Relations of a total bill of $8,162.00:

  • Attended 1/4 meeting with Paul and Stacy to prepare for Surf City Voice Interview; drafted bullet-point messages for Paul’s use during the interview; prepared press release following the interview recapping the discussion.
  • Drafted memo on potential social media opportunities
  • Reviewed OC Register, Daily Pilot and local news blogs for issues pertinent to Mesa Water; provided recommendations as necessary.

Invoice #8009 April 1 – April 30, 2012), however, is more detailed. It bills $318.00 for Media Relations out of a total bill of $8,842.90 and breaks it down in detail:

  • Meeting with Stacy at WACO to discuss Surf City Voice: 0.50hrs/$265/hr for $132.00
  • Researched reporters and contact info for Stacy: 0.70 hrs $265/hr for $185.50
  • For professional services rendered: 1.20 hrs/total $318.00

Invoice #8027 (June 1 – June 30, 2012) lists $220.00 spent on Media Relations, $132.50 for reviewing a Surf City Voice interview with Paul Shoenberger (here) and $87.00 (at $350/hr) for only reading a commentary by Director Fred Bockmiller published in the OC Register.

The Surf City Voice interview (here) that LPA helped Shoenberger and Taylor prepare for was conducted in January of 2012 and subsequently published in May, 2012, and apparently raised a lot of concern before and after it was published, as a series of emails reveal (see sidebar).

The invoices represent but a fraction of the total $290,141.40 that the district paid LPA for an ongoing contract that ended in December, but they illustrate the type of services provided that, arguably, were unnecessary or could have been provided at far less cost by Mesa’s communications manager, Stacy Taylor, whose $194,000 salary is already relatively high, according to a recent story in the OC Register.

Laer Pearce Associates invoice reportHourly pay rates charged to Mesa Water by LPA ranged from $265 per hour for work by LPA associate Ben Boyce to $350 for LPA president Laer Pearce.  Assuming – only to simplify calculations – that LPA charged the lower rate, LPA did a total of 1095 hours of work or 27 weeks of work at 40 hours per week.

That would come out to a rate of $508,000 per year for the same work that Taylor, who has over 20 years experience as a senior-level communications professional, could do or that her new assistant, Ann Moreno, could do in a salary range between $70,000 to $96,000.

Pearce objects to that comparison. By email, he wrote, “I couldn’t disagree more with your conclusion that there is any validity at all in the way you manipulated our billing rate,” he wrote. “To test it, ask yourself that if we billed someone $500 for a small task, would you say we could have billed them $400,000, based on our billing rate, if it had been a really big task? It illuminates nothing because it’s not based in reality.”

Recent news stories in the Voice of OC, the Register, Daily Pilot and the Surf City Voice, have questioned Mesa Water’s increased cash reserves and public relations spending budget in particular.

Starting Friday, the Surf City Voice will periodically publish LPA’s paid invoices to the Mesa Water District in full as well as other documents related to the Mesa Water District’s Strategic Communications Plan, so that ratepayers and the general public might better determine how their public water agency is being managed.

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Retraction and Correction: Mesa Water Spent Public Money on Private Event, But GM Did Not Exceed His Authority

Retraction and Correction: Mesa Water Spent Public Money on Private Event, But GM Did Not Exceed His Authority

By John Earl
Surf City Voice

My story published yesterday (Mesa Water’s Celebration: Misuse of Public Funds?), about Mesa Water’s plan for a private celebration utilizing public money, contained one very important error: it strongly implied that the Mesa Water board had not approved of $49,650 in labor and materials costs for the event.

The implication drawn from that incorrect assertion was that General Manager Paul Shoenberger had exceeded his authority in funding the event. In fact, he was carrying out the orders of the Mesa Water Board of Directors which approved the expenditure of funds for the private celebration at its Nov. 27 board meeting.

My incorrect assertion was based on my interpretation of remarks made by Director Fred Bockmiller in a phone interview and printed in the article. Bockmiller told me that the board had not voted to make the event private and then said “I don’t believe there was ever a vote on it being an event.”

In fact, the event was listed is listed in the official minutes of the Nov. 27 board meeting as a “VIP event” and the board did vote to fund it 3-1-1, with Director James Atkinson voting no and Director Trudy Ohlig-Hall absent.

In my late night rush to finish the story by early morning, I should have slowed down long enough to double check a key element of the story. It was a careless error on my part. I sincerely apologize to the Mesa Board of Directors, to General Manager Paul Shoenberger in particular, and to all my readers.

The other key element of the story—that public funds were used to fund a private event, creating at least the appearance that Mesa Water had broken state law—still stands.

Sincerely,
John Earl
Editor/Surf City Voice

Posted in Headlines, Water, Water Boarding2 Comments

‘Nowaterdeal’: Desal Plant Opponents Will Reach Out to Thousands of Orange County Voters

‘Nowaterdeal’: Desal Plant Opponents Will Reach Out to Thousands of Orange County Voters

By John Earl
Surf City Voice

A growing number of county ratepayers, inspired by the late Gus Ayer, and opposed to a plan by Poseidon Resources Inc. to build an ocean desalination plant in Huntington Beach, have a message for the Municipal Water District of Orange County (MWDOC) and its 28 member agencies:

No more secret negotiations or deals with Poseidon and don’t make us pay an additional $5 billion in local water bills—$8,500 per ratepayer—over the next 30 years for water that we don’t need.

Thirty-years is the time period in which the water agencies that contract with Poseidon would be required to pay for Poseidon’s desalinated water, whether it is needed or not, according to the water purchase agreement (WPA) made public by MWDOC in January.

The buyers “will agree to take (on a ‘take if delivered’ basis) [56,000] acre-feet per year of Product Water (the ‘Committed Amount’),” the WPA states. And if the buyers don’t take that amount of water, they will, “nonetheless pay Seller a per-acre foot charge to be set forth in the Contract…”

The WPA is not final, but it is the culmination of a decade-long relationship between MWDOC, its water agencies, and Poseidon.

The opposition group, heralding online as www.nowaterdeal.com, plans to spend tens-of- thousands of dollars to inform other ratepayers in high propensity voting areas of the county about Poseidon’s proposed “take or pay” contract, asking them to urge their local elected officials not to sign it.

Nowaterdeal is a coalition of members of Residents for Responsible Desal and other local ratepayers, including members of the Surfrider Foundation, League of Conservation Voters, and Orange County Coastkeepers, who at least until now had been fighting an uphill battle against Poseidon’s well financed lobbying efforts and a marketing campaign (largely unquestioned in the county’s major daily newspaper) that depicts its desalination plant as a future fallback point in case of prolonged drought or a natural disaster that would disrupt the flow of water to the public.

Poseidon would risk private investor flight without the guaranteed income, but take or pay would be risky for ratepayers if, as happened in drought drenched Australia, if the desalination plant were to sit idle due to lack of need. Currently, the Metropolitan Water District of Southern California (MWD), which sells water to MWDOC, has more surplus water stored up now (enough for 2.5 years) than ever before—testament to the ability to create backup reliability water without Poseidon.

Ocean desalination’s high maintenance and construction costs—and much higher energy costs—make it too risky, nowaterdeal says. Stuck with higher water rates and an idle desalination plant, ratepayers would fall into a rate trap. “As rates go up, people use less water” and “lower demand results in even higher rates, with fixed costs of the entire system spread over fewer units of water.”

Pimping2

Gus Ayer: MWDOC is pimping for Poseidon and should be eliminated. Photo: John Earl

The high cost-prediction is from information provided by Poseidon in the WPA and factors in conveyance and maintenance costs. With an inflation rate of 3.5 percent factored in, that means an estimated cost of $1,795 per acre foot for the desalinated water, compared to $285 per acre foot for local groundwater and $835 per acre foot for imported water, nowaterdeal says.

Acknowledging the higher cost of desalination, Poseidon VP Scott Maloni recently told the OC Register that Orange County residents have to ask, “What is the value of that reliability to them?”

But the underlying push for desalination plants along the California coast by the desalination industry and other development related business interests is not about drought relief alone, as MWDOC/MWD director Brett Barbre pointed out at a recent MWDOC committee meeting.

Barbre supports the Poseidon project and a smaller, less controversial, desalination project envisioned (but far from certain) for Dana Point in south Orange County. He also thinks that ratepayers throughout the county should have to pay for both projects on the basis that they would benefit everyone, even in water districts that say they don’t want or need the water.

“I believe that desal is not only for reliability. It’s also for growth,” he said. “And there are folks on the environmental side who don’t want any growth and they think if you don’t build water projects you can conserve your way to provide enough water for everybody. And that’s not ever going to happen.”

Although most of Poseidon’s opponents have always been concerned about the environmental effects of ocean desalination, the main focus of their current campaign is economic, while advocating for the development of proven and much cheaper water sources, including the Orange County Water District’s (OCWD) groundwater replenishment system, capturing rainwater, and conservation.

To start, the group will focus on about 50,000 voters in 14 north county cities, including Anaheim, Brea, Buena Park, La Palma, Orange, Newport Beach, Santa Ana, Seal Beach, Tustin and Westminster.

Twenty Orange County water agencies had signed non-binding letters of intent or memorandums of understanding with Poseidon to purchase, cumulatively, over 80,000 acre feet of water each year. Since those non-binding agreements expired in June, 2011, not a single agency has yet to renew.

Correction 02/05/2013: Eighteen agencies have signed Letters of Intent that have no expiration date, according to Karl Seckel, MWDOC’s acting General Manager. Those agencies, with the exception of Fullerton, are slated to participate in “working group discussions” regarding Poseidon during the 2012 fiscal year. Four other agencies are participating in working group discussions but have not signed LOIs. Participation in working group discussions is contingent upon signing a confidentiality agreement with Poseidon, but not all agencies that signed an LOI signed that agreement. The MOUs, which one presumes carried more weight, have all expired.

As Poseidon works to form an agreement with MWDOC and its member agencies, it requires all parties involved in project discussions to pledge absolute secrecy at Poseidon’s whim.

That lack of transparency and the overall elitist/exclusionary attitude at MWDOC and other OC water agencies, including their secret and arguably illegal meetings with Poseidon–all observed by a growing number of citizen spectators at water board meetings, as well as the company’s financial support of an ethically challenged hit piece in the recent Huntington Beach City Council campaign, have inspired Poseidon’s opponents, not only to challenge its political hegemony with a renewed vigor but to question the nature of Orange County water management as whole.

A temporary setback occurred for nowaterdeal when its chief strategist, former Fountain Valley mayor Gus Ayer, a master at crafting successful political campaigns in Orange County, died last week.

Earlier in the month, at a recent joint meeting of MWDOC and OCWD, Ayer praised the latter for its groundwater replenishment program and overall good management, but accused MWDOC of “mission creep” and “pimping for Poseidon.”

He also questioned whether MWDOC should exist.

“It’s time for OCWD to take a very close look at taking over these [MWDOC’s redundant] functions and eliminating MWDOC,” he said. Ayer expanded on that theme in a column written just before his death and published in the Surf City Voice.

Ayer’s untimely death saddened his colleagues but his upbeat attitude continues to motivate them.

“Gus’s last words to me were ‘Give them hell’”, recalled former Huntington Beach mayor Debbie Cook, who, during the past two years, has actively campaigned for greater transparency in water management.

“That was his way of saying that, if we don’t participate in democracy, we deserve the inevitable results. Nobody can replace our friend’s skill set, but he sparked a fire that emboldens us to carry on.”

 

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Posted in Energy, Environment, Headlines, MWD, MWDOC, Poseidon, Water, Water Boarding3 Comments

Triple Toxic Whammy Threatens Food Web, Ocean Study Shows

Triple Toxic Whammy Threatens Food Web, Ocean Study Shows

By Sarah (Steve) Mosko
Special to the Surf City Voice

While plastic refuse on land is a familiar eyesore as litter and a burden on our landfills, in the marine environment it can be lethal to sea creatures by way of ingestion or entanglement. Now, an important new study1 adds to a growing body of evidence that ocean plastic debris is also a threat to humans because plastics are vehicles for introducing toxic chemicals of three sources into the ocean food web.

Background
Two of the sources are intrinsic to the plastic material itself and have been described in previous studies.

Composition of man-made ocean pollution.

Composition of man-made ocean pollution.

The first is the very building blocks of plastic polymers, called monomers, which are linked together during polymerization. However, polymerization is never complete, always leaving some monomers unattached and free to migrate out into whatever medium the plastic comes in contact, like foods/beverages or the guts of a sea creature that mistook it for food. Some monomers are known to be inherently toxic, like the carcinogen vinyl chloride that makes up polyvinyl chloride (PVC) plastics, or the endocrine disruptor bisphenol-A (BPA) that makes of polycarbonate plastics.

The second intrinsic source of risky chemicals is the brew of additives that manufacturers mix in to impart plastics with desired properties. Additives can have toxic properties of their own (like some softening agents and flame retardants), and they are also free to leach out and contaminate their surroundings. Manufacturers generally consider their blends of additives as proprietary information and secret.

A study just published in December in the journal Environmental Science & Technology addresses a third but external source of toxic substances associated with plastics, deriving from oily pollutants commonly found in seawater that glom onto the surface of plastic debris. Plastics are oily materials synthesized from petroleum or natural gas and, in water environments like the ocean, they attract other oily chemicals floating about. This was first measured in 2001 when plastic preproduction pellets (the raw materials of plastic manufacturing) collected from coastal Japanese waters were found to have accumulated toxins at concentrations up to a million times that found in the surrounding seawater.

That study was limited to polypropylene (PP) pellets exposed for just 6 days and tested for two types of persistent toxins still common in seawater though banned in the United States in the 1970s and internationally in 2001: DDE (a breakdown product of the insecticide DDT credited with near extinction of the bald eagle) and PCBs (polychlorinated biphenyls, a family of chemicals with widespread electrical applications).

The study described here from researchers at San Diego State University compared how readily the five most common mass-produced plastic polymers accumulate hazardous chemicals from local seawater.

The findings are especially disturbing given that trawls of the five oceanic gyres around the world (slow-swirling, Texas-sized whirlpools where refuse gathers) are documenting the buildup of alarmingly high densities of plastic debris. In the so-called “Great Pacific Garbage Patch” between California and Japan, the latest trawls by the Long Beach-based Algalita Marine Research Institute found that plastic debris outweighs zooplankton (tiny creatures at the bottom of the food web) by a factor of 36:1. Plastic is amassing even in areas as remote as the Arctic seafloor.

What Did They Do?
The researchers deposited uncontaminated, preproduction pellets (2-3 mm in size) of five types of plastics at five locations in San Diego Bay, CA. Samples were recovered for analysis of adhered toxins at intervals of 1, 3, 6, 9 and 12 months. Testing was performed for a total of 42 distinct chemicals falling into two general families of persistent organic pollutants: PCBs and PAHs (polycyclic aromatic hydrocarbons – byproducts of burning fossil fuels or forest fires).

What Did They Find?
All five plastic polymers were accumulators of both PCBs and PAHs, showing increasing concentrations over time. However, three of the polymers (HDPE, LDPE and PP) consistently soaked up both chemical families at concentrations an order of magnitude higher than the other two (PVC and PET), a pattern repeated at all time points and bay locations. After 12 months of exposure for example, there was a 34-fold difference in average total PCBs amassed on LDPE compared to PET at one location. The researchers think that differences in the size and shape of the polymer molecules can explain why some accumulate more pollutants than others.

As expected, seawater concentrations of PCBs and PAHs varied somewhat over time and between bay locations. Nonetheless, PVC and PET had generally reached equilibrium concentrations of the pollutants by 6 months, whereas the other three plastics had not always reached equilibrium by even 12 months. This is much longer than had been predicted in previous laboratory simulations where polymers were not subject to weathering at sea which produces pits and other surface irregularities, increasing the surface area available to which toxins can stick.

Implications
Numerous studies have now documented that ingestion of marine plastic debris is commonplace at all levels of the food web, whether passively by filter feeders, like krill and many fish, or actively when mistaken for food by animals as diverse as sea birds, turtles and whales. All these creatures represent entry points into the ocean food web for toxins either placed in plastics during manufacturing or extracted later from seawater. This study highlights that mass-produced plastics today are all potential vehicles for transporting hazardous chemicals found in seawater, so it will be hard to argue that any one plastic is harmless as an ocean pollutant. As example, PP is often considered inherently less toxic than PVC because vinyl chloride is a known carcinogen, yet PP soaks up far more PCBs and PAHs from seawater. The study authors did suggest, however, that PET might be considered of relatively low toxicity because it generally contains fewer additives and appears to accumulate lower concentrations of seawater pollutants.

Another disturbing implication of this study is that marine plastic debris can actually become progressively more chemically hazardous as weathering continues to increase the surface area available for gathering pollutants. Analogously, larger plastics debris breaks apart over time into smaller bits, also increasing total surface area. The smaller the plastic debris, the greater likelihood it can be ingested by the tiniest creatures at the bottom of the food web. Adding to this concern are studies suggesting that “microplastics” (smaller than 1 mm, e.g.) might be more common and certainly harder to measure in marine environments than readily visible debris. No one has yet analyzed how high are the concentrations of ocean pollutants stuck to such miniscule, even microscopic, fragments.

The findings of this study also serve to draw fire to any notion that developing marine biodegradable plastics will automatically eliminate the threat to human health of toxins associated with conventional plastics which are non-biodegradable. The sole standard established to date for biodegradation of plastics in the marine environment allows that, at 6 months, plastic bits up to 2 mm can remain and only 30 percent of the material must have successfully undergone biodegradation (ASTM D7081). This standard describes a framework allowing even biodegradable plastic debris ample opportunity to deliver a triple chemical threat into the ocean food chain and maybe even onto our own dinner plates.

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Water Flash: Poseidon Carlsbad Vote Passes

Meeting in progress to considering voting for or against a water purchase agreement with Poseidon Resources Inc. for desalinated water from its proposed $1 billion project in Carlsbad, San Diego County. Photo: Debbie Cook

Public comments have wrapped up and at the San Diego County Water Authority special board meeting to consider a 30-year water purchase agreement with Poseidon Resources Inc. to supply up to (but as yet unknown) 56,000 acre feet of water for San Diego County by desalinating up to 100 million gallons of ocean water to turn it into 50 million gallons of drinking water each day from off the coast of the city of Carlsbad.

Supporting the $1 billion project: big business interests, politicians, chamber of commerce, labor etc. Opposed: environmentalists, ocean users and activist rate payers. About evenly divided so far. The board room is full, about 160 people in attendance. Locals speaking: former Huntington Beach mayor Debbie Cook, former Fountain Valley mayor Gus Ayer. You can listen to the arguments pro and con and to the subsequent vote online at http://www.sdcwa.org/meetings-and-documents. More later.

Update: Board discussion is underway now. “Direct the General Manager to refer to nine Carlsbad Desalination Rate Structure  Alternatives to the Cost of Service Consultant and return to the Board with a recommended alternative to allocated the cost of the Carlsbad Desalination Project: Staff Recommendation: Approve the submission of nine requested Carlsbad Desalination Rate Structure Alternatives to the Cost of Service Consultant.”

Vote on motion by Director Mudd, 2nd by Boyle: 95.85 % of the vote cast and passes unanimously. Only 2 of the 24 water agencies under the SDCWA umbrella have signed a memorandum of intent to buy water to be produced from the the project.

Under consideration: Adopt resolution approving: 1) Water Purchase Agreement with Poseidon Resources; 2) Design Build Agreement; 3) Agreements necessary to accomplish tax exempt project financing through the California Pollution Control Financing Authority; 4) Adjustments to the Capital Improvement Program Budget; 5) Supporting contracts and contract amendments; 6 Other actions necessary for implementation of the Carlsbad Desalination Project; Staff recommendation: approve.

Discussion ongoing.

Vote taken on Water Purchase Agreement passes with 85 percent of the vote (vote is weighted according to property values in each district).

Document room. Photo: Debbie Cook

 

 

San Diego County Water Authority meeting underway (11/29/12): Photo: Debbie Cook

Artist’s conception of proposed Carlsbad ocean desalination plant.

Posted in Energy, Environment, Headlines, Poseidon, Water4 Comments

Mesa Water Directors Fail to Censure Trudy Ohlig-Hall

Mesa Water Directors Fail to Censure Trudy Ohlig-Hall

By John Earl
Surf City Voice

The Nov. 13 episode of the Mesa Consolidated Water District Board of Directors should make the public citizen wonder if that body is capable to handle the challenges of water management in the 21st Century when it barely knows how to run a board meeting.

The issue before the board was whether to censure fellow director Trudy Ohlig-Hall or not, but some of its members seemed to be confused by the process.

Ohlig-Hall, who had just been trounced by election opponent Ethan Temianka 58.5 percent to 41.5 percent on Nov. 6, was absent.

For another month she will continue to represent Division Three of Mesa Water’s service area, which includes parts of Costa Mesa and Newport Beach. She was up for reelection having served on the five-member board since 1987.

Ohlig-Hall has been absent from duty since she walked out of the Oct. 23 board meeting just after directors James Fisler and Shawn Dewane, who campaigned for Temianka, introduced a motion to censure her for being rude toward staff.

The motion was ruled out of order at that time by board president Fred Bockmiller because no resolution for censure had been written or legally placed on the meeting agenda.

Instead, the board voted 3 – 1 (Director Ohlig-Hall was absent, James Atkinson voted no) to direct staff to draw up a resolution of censure against Ohlig-Hall for consideration at the Nov. 13 board meeting.

Trudy Ohlig-Hall, James Atkinson. Photo: Surf City Voice

Fisler and Dewane repeatedly denounced Ohlig-Hall for being “rude and aberrant” not only to two staff members who cried and sobbed as a result on Aug. 20, the incident that sparked two investigations, but to other directors and their wives for the past 25 years.

At the Nov. 13 board meeting Fisler and Dewane were eager to pass the completed resolution. Bockmiller and Atkinson, however, said it was a moot point since Ohlig-Hall would soon be replaced by Tamianka anyway. So, they introduced a motion to table the resolution.

But Dewane and Fisler still wanted to draw Ohlig-Hall’s blood.

“Can I make a substitute motion not to table it,” Fisler asked.

It was a redundant gesture because a no vote on Bockmiller’s motion to table would accomplish same thing. Of course, Bockmiller’s original motion was pointless too because the vote was certain to end at 2 -2 and a tie loses by default.

Fisler argued that it was important to “show our staff that the board of directors basically has their back” when they are mistreated by a board member.

Dewane agreed. “To do anything less than to follow through with what we voted on is the abdication of the responsibility of the board of directors.”

Bockmiller disagreed. “To say that a director voting against this (motion not to table the resolution) is voting against staff is a falsehood. In the strongest terms, it is not true.”

Censuring another board member would be “unprecedented in California water politics history,” he emphasized, “And there have been directors’ behaviors far more ludicrous than Director Ohlig-Hall’s behaviors.”

To censure Ohlig-Hall would be an “empty gesture,” would require reading it aloud at the board meeting and transmitting a copy to the Orange County Board of Supervisors, “all of which would waste time, money and effort over somebody who will no longer be an elected official within a few days.”

Atkinson agreed, adding that the resolution’s reference to a third-party “independent” investigator’s report, which relied on hearsay—statements attributed to Ohlig-Hall by Mesa’s in-house (and potentially biased) investigator the day after the alleged incident—was unfair to her.

Predictably, the vote on the motion not to table the resolution failed by a tie vote—Dewane and Fisler for vs. Atkinson and Bockmiller against.

Then on to Bockmiller’s motion to table, which, after comment by one public citizen, also failed 2 -2.

Then it was back to the resolution to censure that remained on the agenda, after all.

James Fisler and Shawn Dewane. Photo: Surf City Voice

Bockmiller, who as the board’s president runs its meetings, admonished that “We are simply speaking about this resolution which is before us tonight” and nothing else.

But Dewane ignored Bockmiller’s instructions, saying that he wanted to make sure that the investigator’s report, a public document, is posted to Mesa’s website. Then he presumed that Ohlig-Hall did not consent to be interviewed by the outside investigator because “she felt that there was nothing else to add to the report…” It [including hearsay testimony about Ohlig-Hall] is the most objective information available, he said, and the public has a right to know about it.

Bockmiller then revealed that Ohlig-Hall had claimed to him that her invitation to be interviewed by the outside investigator came late one afternoon and she was unable on short notice to have her attorney present. “And so she was unable to participate in the interview and no other opportunities were provided,” Bockmiller said.

Then Dewane, who had just based his call for censure on hearsay testimony, blew a fuse—because Bockmiller used hearsay.

“If it’s her statement—you making her statement is hearsay,” Dewane complained. “I believe that’s inappropriate to put words in her mouth or take her statement and read it into the record.”

Ohlig-Hall could have defended herself, he said, and her attorney, former Costa Mesa city council member Katrina Foley, is “notorious in the city for representing usually staff members in situations like this rather than board members.”

Ohlig-Hall chose not to defend herself, “So, I would just suggest that your comments, Director Bockmiller, be stricken from the record. It’s inappropriate to make statements on her behalf,” he fumed.

“Director Dewane,” Bockmiller called out.

“Yes?”

“Your comments are ruled out of order. And it’s perfectly permissible for me to speak as to what has been communicated to me. This is not a court of law. This is a board meeting.”

More discussion followed from Fisler.

Then, off topic again, Dewane said he wanted to be clear whether the investigator’s report would be made available to the public on the Internet or not.

Bockmiller, oblivious to his own instructions (and the Brown Act, which says a government body can’t vote on an item not on the agenda) asked if there has been a motion to put the report on Mesa Water’s website.

There had not been a motion so Dewane made one: all documents related to the case should be placed online.

But Mesa’s legal counsel quickly pointed out that the board can’t legally vote on something that isn’t on the agenda. Only the resolution itself was on the agenda.

Then Bockmiller instructed that the board would not vote on Dewane’s [illegal] motion unless it wants to unanimously pass an emergency action to put the issue (of placing investigator’s documents online) on the agenda right then.

Dewane quickly made a motion to do just that.

No need for that, legal counsel said. Any director can simply ask staff to have the matter put on a [future] agenda.

But Dewane wanted to vote then and there—no more waiting.

Bockmiller worried that Dewane’s motion might be illegal, after all, and legal counsel emphatically warned that it would be.  “I would urge the board not to put this on as an emergency item. There is not a legal precedent to support it,” he warned.

Dewane then instructed General Manager Paul Shoenberger to place the item on the next meeting’s agenda.

Getting back to the resolution, Dewane said that Ohlig-Hall is not off the hook just because she lost the election. Anyway, he claimed wishfully, the board had already voted in favor of the resolution at the Oct. 23 meeting. By bringing it up at yet another meeting the board was belaboring the issue, he said.

Fisler confirmed that he too thought a motion of censure had passed at the previous meeting. “I don’t know why you went on for ten minutes about what a tough decision it was if it wasn’t a motion for censure,” he complained to Bockmiller.

But Bockmiller pointed out that there was no such resolution on the agenda to adopt at that time.

“That would be a Pelosiesk move to adopt the resolution without reading it, and we know how that has gone with the health care bill,” he quipped.

Bockmiller regretted that Ohlig-Hall did not make the public apology that he says she promised him she would make. In retrospect, he believes that the board jumped the gun by going toward censure—a formal letter from the board to Ohlig-Hall should have come first.

“Something happened,” he said, but adding that the resolution was probably written too harshly.

The vote was as predicted, Bockmiller and Atkinson against, Dewane and Fisler for.

After four committee meetings, two board meetings and two investigations, the motion to censure failed.

A simpler action would have been for General Manager Paul Shoenberger, who is the sole boss of Mesa’s employees, to instruct Director Ohlig-Hall that staff were off limits to her from now on, a policy that he could have enforced with the rest of the board’s support if necessary.

Next up on the board’s agenda that night: Branding Campaign Wrap Up, or how Mesa Consolidated Water spent thousands of dollars to change its name and logos in order to promote greater public awareness.

More on that, soon.

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Get Desal Permits Quickly by Coordinating Early & Designing a Good Project, State Panelists Say

Get Desal Permits Quickly by Coordinating Early & Designing a Good Project, State Panelists Say

By John Earl
Surf City Voice

How to get more ocean desalination plants built in California despite pesky environmental regulations was the topic of a workshop on Oct. 30 at the 1st Annual Desalination Conference held by CalDesal at the Hyatt hotel in Irvine.

CalDesal is a non-profit lobbying organization started by Mesa Consolidated Water District in Costa Mesa after years of collaboration with various other southern California public water agencies, including the Metropolitan Water District of Southern California and the Municipal Water District of Orange County.

CalDesal promotes desalination on behalf of its 80 or so member organizations, including public water agencies and private water corporations, as well as the private consultants who piggy back on that tightly knit partnership – the foundation of water management.

The raison d’être for CalDesal is the desal industry’s powerful foes, the environmentalists, who, it is said (but never documented), greatly outspend and out lobby the water industry. Due to that imbalance, environmentalists have gone too far with regulations, obstructing what could be an eternal flow of water from the limitless ocean that is needed to feed our (or the water industry’s) insatiable appetite for growth.

In an “Action Alert” issued last spring, CalDesal warned that “There can be in excess of 30 local, state, and federal permits and related approvals and comments involved in reviewing and issuing permits for seawater desalination projects. That often can lead to an inefficient permitting pathway and redundant requirements” putting at risk “critical water supplies for communities.”

CalDesal intended the alert to rally support for “streamlining” legislation, Assembly bill 2595, which proponents hope would set up a so-called one-stop shop to replace the five or six stages of permitting that exists now.

Streamlining advocates insist that their intent is to increase efficiency, not to “fast track” the projects in order to by-pass environmental regulations. But the bill’s opponents say that by diluting the permitting process the bill would undermine fundamental environmental protections.

“There’s no need to streamline ocean desalination regulations,” says Conner Everts, director of the Southern California Watershed. “Projects that comply with existing laws have moved forward. Those that haven’t have been challenged.”

Water agencies want to be exempt from environmental regulations, Everts says. “But this [ocean desalination] is a new technology with huge impacts that is new to California and the United States and [it] deserves to be properly reviewed.”

The bill died in committee, but the fight to streamline lives on through CalDesal, whose members probably ended up hearing a different truth than expected at the generally upbeat but tightly controlled two-day event.

Titled “Desalination Permitting – the intersection of Science & Policy,” the workshop brought together representatives from the state agencies that handle permitting for desalination projects, including the California Natural Resources Agency, California State Water Board, California Coastal Commission, California State Lands Commission and California Department of Fish and Game, to explain permitting basics to CalDesal’s members.

The overriding message was clear: follow the proper procedures from the start; if your project is worthy, it will be approved in a matter of months. But if you don’t follow the proper procedures, expect delays.

Building a desalination plant is “an extremely daunting process,” explained Catherine Kuhlman of the Natural Resources Agency, which monitors the state’s natural, cultural and historical resources, including marine protection areas. “We also know that desal is a necessary component of our water supply in the future.”

Kuhlman said that there are three key permits to get, from the Lands Commission, Coastal Commission and the State Water Board. Those agencies work together to avoid permitting conflicts, she said, and they are committed to ensuring that desalination is part of the state’s “water portfolio.”

Coordinating early with the permitting agencies is “hugely important,” she said, but “pitting the agencies against each other isn’t going to be an effective strategy. It will result in a delay.”

Tom Luster of the Coastal Commission explained the role of state agencies in upholding the Public Trust Doctrine, which is embedded in centuries of Western law and the California Constitution.

The Public Trust Doctrine protects the public’s right to water resources for the common good rather than strictly for private profit and underlies what each state permitting agency does in its own way, he explained, so desalination projects must conform to its principles.

Tom Luster

Tom Luster speaks to CalDesal members about faster permitting. Photo: Surf City Voice

To help streamline the permitting process for ocean desalination projects, Luster suggested submitting applications to the State Lands Commission early on because that agency serves as the lead for determining compliance with the California Environmental Quality Act, which sets the protocol used by state and local agencies for analyzing and disclosing environmental impacts of local projects and it thoroughly analyzes Public Trust Doctrine issues as part of that process.

Adhering to the California Coastal Act, which provides the structure by which the Coastal Commission protects coastal resources, is also paramount, Luster said. “The better the proposed project incorporates all the Costal Act policies and the other state requirements, the more likely it’s going to have a smoother ride through the permit process.”

The main concern, Luster said, is to determine the least environmentally damaging way of creating the water supply after considering all the alternatives, including different approaches to desalination or sources other than desalination.

“Part of the consideration should be, are there water efficiency or conversation measures that can be put into place? Are there additional recycling opportunities that you would put into place before going to the desal? If those options have provided the [water] supply with less environmental damage those would be evaluated as part of our assessment of the project,” Luster said.

Luster listed specific issues that the Coastal Commission will look at during its review of an ocean desalination project, including the pros and cons of co-locating with a power plant for ocean intake, as Poseidon Resources Inc. plans to do with the AES power plant in southeast Huntington Beach in order to suck in 100 million gallons or more of seawater each day and produce 50 million gallons of potable water.

That intake process, referred to as once through cooling (OTC) because seawater is passed through pipes to cool the power plant, decreases capital costs but kills virtually all marine life (larvae) that come through the intake process.

The State Water Board has virtually eliminated the use of OTC for power plants by 2020 but will decide how to apply the new marine protection standards to ocean desalination plants in next two years.

Although Poseidon claims that the amount of ocean marine life that would be killed by the Huntington Beach plant is miniscule, the actual harm done goes beyond any single ocean desalination plant, Luster pointed out.

There are 12 ocean desalination plants envisioned or planned along the coast between Tijuana and Santa Barbara that would draw in marine life from overlapping areas, including some designated to protect marine life, which would have a significant cumulative effect.

“Co-location should not just be considered a default choice of facility,” Luster said, a factor that he also said would be considered in the Commission’s project analysis.

Other desalination permitting issues mentioned by Luster:

  • How much water is needed and can it come from multiple sources?
  • Will the water go to one defined location where water conservation plays a key role or to an area without an effective conservation program?
  • Does the project fit with the Local Coastal Plan and anticipate population growth?
  • Is the site located in a protected or sensitive habitat area?
  • Does the project use subsurface intake (thus eliminating the problems caused by once-through-cooling)?
  • Is it close to the shoreline or away from the shoreline?
  • Will it be a publicly or privately owned facility?
  • Did developers coordinate early and extensively with public agencies and other stakeholders?

Three months was the shortest time for full permitting of an ocean desalination project, Luster said. That was a relatively small facility in Sand City that produces 330 acre feet of water per year (Poseidon’s proposed Huntington Beach plant would produce 56,000af). The average length of time so far has been 7 months, according to Luster.

“If you have a well designed and planned facility the permitting process shouldn’t be any problem at all,” Luster said.

Poseidon’s Huntington Beach plant still hasn’t finished its permitting process after 10 years. Environmental Impact Report issues remain for the Coastal Commission, the final permitting stop, to resolve, but for the past five years the company has repeatedly failed to comply with the commission’s requests for information about the project. Also, the project’s opponents have filed an appeal with the commission over a 2010 Local Coastal Plan permit given by the city.

Those issues could be resolved by the commission sometime in 2013. But given unresolved financing and contractual issues, when or if the plant will ever be built is still an open question.

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Bioplastics: Can They Save the Marine Environment?

Bioplastics: Can They Save the Marine Environment?

By Sarah (Steve) Mosko
Special to the Surf City Voice

Bioplastics are simply plastics derived from renewable biomass sources, like plants and microorganisms, whereas conventional plastics are synthesized from non-renewable fossil fuels, either petroleum or natural gas. It’s a common misconception, however, that a bioplastic necessarily breaks down better in the environment than conventional plastics.
 
Bioplastics are nevertheless marketed as being better for the environment, so how do they really compare?
 
The Problems with Petroleum-Based Plastics
The push to develop bioplastics emerges from alarming realities starting with the staggering quantity of plastics being produced, over 20 pounds a month for every U.S. resident, according to the latest numbers from the American Chemistry Council.
 
Conventional plastics do not biodegrade (defined below) within any meaningful human timescale – they just break apart into smaller plastic fragments. Also, the overall recycling rates for plastics remain fairly low, eight percent in the United States in 2010, in large part because plastic products contain unique proprietary blends of additives which prevent recycling of mixed batches of products back into the original products.
 
So, unlike glass and aluminum which can be recycled in a closed loop, most plastics recycling is considered “down-cycling” into lower quality, hybrid-plastic end-products, like lumber or clothing, which aren’t recycled again. This means that, except for the fraction of plastic that is combusted for energy production, all plastics eventually end up as trash, either in landfills or as litter.
 
Petroleum and natural gas are actually organic substances, but why plastics synthesized from them do not biodegrade is straightforward. The exceptionally strong carbon-carbon bonds created to form the backbone of plastic polymers do not occur naturally in nature so are foreign to microorganisms which readily eat up other organic materials.
 
Molecules of conventional plastic are also gigantic, making them extra difficult to digest. Each is composed of literally thousands of repeating units called “monomers” so that the weight of a finished polymer molecule is typically over 10,000 (for comparison, the weight of a single water molecule is 18). The simplest is polyethylene (e.g. grocery bags, ketchup & shampoo bottles) which is just an enormous string of carbon atoms with attached hydrogen atoms.
 
In the ’Great Pacific Garbage Patch’ between California and Japan, an ocean area twice the size of Texas, the ratio of the weight of plastic debris to zooplankton has risen to 36:1, a six-fold increase in a single decade. The non-profit Algalita Marine Research Institute in Long Beach, California has been measuring how plastics are amassing in this region since the late 1990s. Plastic debris is increasing in even the most remote of ocean areas, like the Arctic seafloor.
 
Buildup of plastics in the marine environment is particularly worrisome. Creatures as varied as sandworms, barnacles, krill, jellyfish, birds, turtles and whales are known to ingest plastic debris, which can block digestive tracts, while many forms of sea life die instead from entanglement.
 

Plasic pellet attracts oily toxins from seawater

Furthermore, ingested plastics are a vehicle for transfer of toxins in seawater into the food web. We know from Japanese researchers that the oily nature of plastics allows them to concentrate oily toxins (like polychlorinated biphenyls, nonylphenols and derivatives of DDT) from seawater onto their surfaces. Food web contamination from potentially risky chemicals added to plastics during their manufacture (like bisphenol-A, phthalates and nonylphenols) is a parallel concern.

 
To understand if bioplastics are less of a hazard to the marine and other environments, it’s first helpful to clear up the meanings of often misconstrued terms describing the breakdown of plastics.
 
Degradable ≠ Biodegradable ≠ Compostable
Standards for measuring how plastics break down in particular environments have emerged only recently so are still in development. Comparisons among plastics are further complicated by the fact that no one entity is universally recognized as setting those standards.
 
Nevertheless, international standards have been established by two bodies, ASTM International (formerly American Society for Testing and Materials) and the Switzerland-based International Organization for Standardization (ISO). Despite the confusion this fragmentation generates, there is consensus on the distinctions between the key terms: degradable, biodegradable and compostable.
 
Degradable simply means that chemical changes takes place, maybe from sunlight or heat, that alter a plastic’s structure and properties, like clouding or fragmenting. Biodegradable more narrowly denotes that the degradation results from naturally-occurring microorganisms (bacteria, fungi or algae) but makes no guarantee that the degradation products are non-toxic or make good compost. Compostable goes a step further: ASTM’s definition, for example, specifies that the microorganisms’ breakdown products must yield “CO2, water, inorganic compounds, and biomass at a rate consistent with other known compostable materials and leave no visible, distinguishable or toxic residue,” such as heavy metals.
 
Plastics can potentially be designed to meet any standard(s) set by ASTM or ISO for breakdown in either aerobic environments, like water or soil, or in anaerobic ones (lacking oxygen), like enclosed wastewater treatment systems. The sealed-off environment within conventional landfills, however, is not amenable to biodegradation of any materials, so there has been little push to develop analogous standards for landfills.
 
Plastics manufacturers submit finished products to independent testing organizations which certify whether they meet standards for biodegradable or compostable in given environments.
 
The Biodegradable Products Institute (BPI) in New York offers a single certification, guaranteeing compostability (as defined by ASTM) in an industrial composter where conditions like temperature and humidity are tightly controlled. However, the significance of this certification within the United States is undermined by the reality that there are very few industrial composting facilities nationwide.
 
In Europe, where development of an infrastructure for composting is further along, the organization Vinçotte offers not only certification for industrial compostable but also for home compostable, biodegradable in agricultural soil, and biodegradable in fresh water.
 
The sole standard for biodegradation of plastics in the marine environment basically requires that, within six months, the plastic must be disintegrated into bits smaller than two millimeters and that biodegradation must have progressed so that at least 30 percent of the carbon has been converted by microorganisms into carbon dioxide (ASTM D7081). Neither BPI nor Vinçotte yet offer certification for this, so any company making this claim would be relying on their own testing.
 
A Look at Bioplastics on the Market Today
The following compares the certifications and other environmental merits of some contemporary bioplastics grouped according to the source material (i.e. feedstock). Although starch and cellulose are actually biopolymers found in the natural world that can be converted into plastics (like packing peanuts which dissolve in water), the following discussion is limited to biopolymers synthesized by microorganisms in industrial settings because they represent the frontier of bioplastics and can be processed on the same equipment as conventional plastics.
 
Be mindful that you can’t rely on the internationally-recognized numbered chasing arrows system to identify bioplastics. Nearly all bioplastics fall under the “#7 OTHER” label which is a catchall for plastics not made of the conventional resin types, labeled #1 – #6.
 
Corn
Just one company worldwide claims to make bioplastics that meet ASTM’s marine biodegradable standard, Metabolix based in Massachusetts.
 
Polyhydroxyalkanoates (PHAs) are biodegradable monomers, naturally made by bacteria during fermentation of sugar, which can be combined to make high molecular weight polymers suitable for plastics. Metabolix is using bacteria genetically altered to produce high yields of PHAs from the sugar in corn kernels. The resulting biopolymer, Mirel™, is pure PHAs except for proprietary additives mixed in to impart desired properties. According to company spokesperson Lynne Brum, the additives do not include bisphenol-A, phthalates or nonylphenols which have been linked to health problems in lab animals or humans.
 
Various Mirel™ resins are available for fashioning into many typically disposable items, such as eating utensils, food storage tubs, jars and lids. All are certified for industrial composting, and some are also certified for home composting and/or biodegradation in agricultural soil or fresh water.
 
However, only the thinnest film grades of Mirel™, appropriate for making carryout bags, yard waste/kitchen compost bags and agricultural film, supposedly meet marine biodegradable standards because greater material thickness would impede biodegradation.
 
As is true of conventional plastics and organic materials in general, Mirel™ will not biodegrade in landfills. Brum stated that although closed-loop recycling of Mirel™ is certainly possible, the company’s focus thus far has been on biodegradation as an end-of-life option.
 
Polylactic acid (PLA) is a different biopolymer derived from corn through fermentation by bacteria that naturally produce lactic acid which is then tweaked to form polymers. The primary U.S. manufacturer, NatureWorks LLC, advertises that its PLA resin family, Ingeo, relies on no genetically-modified materials and uses 50 percent less energy and produces 60 percent fewer greenhouse gases than petroleum-based polymers. The range of possible applications is very wide, including clothing, durable goods like mobile phone casings, credit cards, drink bottles and all sorts of food packaging & food service items.
 
Although Ingeo does not biodegrade in any water or soil environments, it has received certifications for industrial composting. NatureWorks points out that used Ingeo is being recycled in a closed loop into new Ingeo, but recycling on a large scale is not yet feasible because Ingeo products lack a unique identification code and they have to be shipped to the sole recycler in Nebraska.
 
An Italian company, Novamont, is manufacturing a family of biodegradable resins under the label MATER-BI®which do not necessarily qualify fully as bioplastics because unspecified “monomers” derived from “fossil fuels” can be used in the proprietary blends of ingredients which include cornstarch plus other renewables, like vegetable oils. Nevertheless, MATER-BI® resins are certified for industrial composting, and the company claims the feedstocks do not rely on genetically modified crops or deforestation. MATER-BI® can be made into a myriad of products including doggie poop bags, mulching film, shopping bags, bubble wrap, pens and rulers.
 
Sugarcane
Polyethylene (PE), the most ubiquitous plastic, is made by polymerizing ethylene synthesized from ethanol derived conventionally from petroleum, though synthesis of ethanol from plant sources is also possible. In Brazil, where sugarcane grows abundantly, a company named Braskem is manufacturing ethylene instead from ethanol made from fermented sugarcane. Braskem touts that its ‘Green Ethylene’ is 100 percent renewable source-based and the resulting ‘Green PE’ resins are at least 84 percent renewable content.

Because Green PE is identical to that produced from petroleum, it can be made into the very same products and recycled together with conventional PE. However, this also means it is no more biodegradable than conventional PE in any environment and poses the same risks to the ocean food web.

Nevertheless, Braskem asserts that Green PE merits its green label on other grounds, like the fact that growing sugarcane draws carbon dioxide out of the atmosphere. For every kilogram of Green PE produced, 2.5 kilograms of carbon dioxide are supposedly sequestered in the resin. Also, 50 percent more ethanol can be fermented from sugarcane than from corn.

Are Plastics Really Convenient?
Single-use, disposable plastics were a direct outgrowth of industries developed during World War II and quickly became symbolic of the convenience of modern day living. The supply of fossil fuels felt endless at the time, and the fact that plastics could be made into just about anything and were so long-lasting seemed a good thing.

Nowadays, the prospect of mass conversion from conventional plastics to ones made from renewable sources is raising concerns typically focused on the arable land that would need be diverted to growing feedstock for bioplastics: deforestation, monocultures, fresh water supplies, soil erosion, food supplies and food prices.

Bioplastics manufacturers like to point to the fact that the fraction of global food crops or farm acreage currently used to make bioplastics is miniscule, sidestepping the obvious question of what the realistic impacts would be if bioplastics ever replace conventional ones on a large scale. Consider that ethanol gas, for example, is already in competition with the food supply for available corn.

A research institute in Rotorua, New Zealand called Scion is experimenting with an alternative renewable feedstock, sewage sludge. The idea is that, by cooking sewage sludge, reusable substances can be recovered and converted into bioplastics as well as fertilizers and biofuels. However, the first pilot plant began operations just a year ago, so it will be a long while before the feasibility of making any plastics from sewage is known.

Even if the feedstock issues can be resolved, what to do with plastics at the end of their useful life looms as the more daunting problem. Global figures from 2011 say that the world is already consuming over 450 billion pounds of plastic products a year (99 percent from fossil fuels), and plastic industry experts expect demand to rise exponentially within the next five years.

*Projection for 2050 is based on 2010 per capita production.

Even without any change in worldwide average per capita consumption (~65 pounds/year), humanity and the planet would be burdened with well over 700 billion pounds of additional plastics each year by mid-century when the world’s population is expected to top nine billion.

Bioplastics designed to biodegrade in industrial composters are no doubt an important step in reducing the burden placed on landfills, although widespread municipal composting in less developed countries is, at best, a pipedream at this point. Furthermore, making plastics compostable does nothing to prevent the continuing buildup of plastics in the marine environment. Ocean plastics derive primarily from land-based sources, like street litter carried via storm drains which empty into rivers flowing into the sea.

While the development of marine biodegradable plastics should be encouraged, it is wishful thinking to assume they will ultimately be the solution. Marine biodegradable plastics do not just dissolve in seawater. ASTM’s marine biodegradable standard allows that decomposing plastics can linger in seawater for many months, ample time to endanger sea life by ingestion or entanglement. Furthermore, we know nothing yet about how bioplastics compare to conventional ones as vehicles for transferring oily toxins in seawater into the food chain.

It’s even conceivable that wide availability of marine biodegradable plastics would add to the volume of ocean plastics because labeling as marine biodegradable might encourage dumping at sea, even though any ocean dumping of plastics has been illegal since 1988 by international treaty (MARPOL Annex V).

Halting the flow of all types of plastics into the ocean is the most rational solution to the crisis of plastic ocean debris. On a local level, this simply entails placing secure lids on trash receptacles and well-designed grates across all storm drains and river mouths that outflow to the sea. On a societal level, however, this means a deliberate shift away from the throwaway culture that led to the exponential rise in the production of plastics in the first place.

After more than a half century of profligate consumption of plastics, we are face-to-face with the reality that there is nothing convenient about getting rid of it all and preventing it from trashing our oceans and contaminating the marine food web.

Photo Top Right: Throwaway living debuts after WWII.
(Photo: Peter Stackpole, 1955)

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Viginia Albrecht: Undermining the Clean Water Act Drop by Drop

Viginia Albrecht: Undermining the Clean Water Act Drop by Drop

By Rose Ellen O’Conner
Natural Resources News Service
Originally published by DC Bureau on Sept. 19, 2012

Virginia Albrecht (explore the Clean Water Timeline), dressed in a black double knit pantsuit and wearing small gold earrings, makes her way to the dais at the front of a large room in the law offices of Hunton & Williams, where she works. She is one of the last to arrive and has missed most of the small talk but waves to half a dozen colleagues as she crosses the front of the room, where she will lecture on the complexities of getting permits for building and other industry projects under the Clean Water Act.

Before the conference begins, Albrecht, 69, leans into the woman next to her as though she is consoling her. Fifteen minutes later, “Ginna,” as her friends call her, seems surprised when she is called on to talk, as though she does not think it is her turn yet. But she breezes through her lecture, in a plainspoken, this-really-isn’t-as-complicated-as-it-seems manner.

As the 40th anniversary of the Clean Water Act approaches in October, the battles over which waters Congress meant to regulate by the law still rages. At the forefront of the debate is Albrecht, litigator and lobbyist. Albrecht is one of the most sought-after industry lawyers in the field of clean water regulation. She has made her career weakening, limiting or obfuscating the law, according to environmentalists. She attributes her success to being a nerd who loves legal minutia.

Environmentalists say she is charmingly chatty on the lecture circuit but in the courts, the corridors of Congress, the West Wing of the White House and the federal agencies that regulate water, many of them see her as the Darth Vader of the Clean Water Act.

Albrecht, who is well compensated for defending her clients’ environmental records, equates their discharges to the pollution from one person with a bathroom.

“It’s easy to vilify someone and then you don’t have to actually deal with what they are saying, the legitimate concerns that people have,” Albrecht says. “They also always refer to my clients as polluters. I find that so strange and weird. … If you’re a human being and you have a flush toilet, you’re a polluter and you should be pretty happy that there’s someone at the other end who’s receiving your garbage.”

Albrecht has represented scores of corporate clients, including developers, coal mining corporations and electric utilities. The latter two groups released 711 million pounds of toxic chemicals in 2010, according to reports industry is required to file with the Environmental Protection Agency. The companies are permitted to release some toxins as a cost of doing business.

Even so, one of Albrecht’s clients, Arch Coal, the nation’s second biggest producer of coal, ran afoul of state and federal regulators, who charged that the corporation violated its permit last year by releasing more waste than it was allowed to discharge into Kentucky, Virginia and West Virginia streams. Arch, based in St. Louis, paid $4 million in fines to settle the case and agreed to improve treatment systems to reduce its annual release of toxins by 2 million pounds a year, according to the EPA.

Albrecht did not represent the corporation in that case, and the company is faring much better in a current one that she is handling. Arch is battling the EPA for the right to go forward with plans to increase its mountaintop mining in Appalachia. A federal district court judge has already ruled in Arch’s favor and the case is now before a D.C. federal circuit court judge.

Mountaintop Mining

Arch is among numerous corporations that mountaintop mine in Appalachia. At the start of the controversial process, skyline trees – diverse forests of maples, poplars, oaks and other species – are leveled. Then the companies lop off the top of the mountain. Using dynamite, they blast away up to 1,100 vertical feet of mountainside, according to the U.S. Office of Surface Mining Reclamation and Enforcement. Huge earth-moving equipment, known as draglines, as much as 20 stories high and able to move 50 tons of dirt and rock at once, excavate the ground to get to the coal. The debris from the blasting and the mining waste are dumped in nearby hollows and streams. The mines operate 24 hours a day, truck horns honking through the night.

“I’d say it’s like hell but no one’s been there and back yet,” says Charles Bella III, who lives in Blair, West Va. In the 1990s, he was a neighbor to Arch’s Dal Tex Mine.

“The dust from the dragline and the dirt pit is just a big gray cloud. Black and gray. It’ll take your breath sometimes. When they blast, it puts off a real orange film. … It mostly came through and stayed in the air and eventually it would settle down. Just kind of a yellowish orange,” Bella, 62, continues.

Bella says the dust turned freshly fallen snow grayish black in a few hours. He says his parents moved from a new home next door because they could not take the noise and dust, which prevented them from sitting on their porch or using a clothesline. And the coal companies have blocked off hollows that used to be community property, Bella says.

“We have these ATVS and don’t have no place to ride them ‘cause they put up big iron gates at the mouth of every hollow,” Bella says. You just don’t have no freedom here no more. Going up Blair Mountain – they’ve got it all posted no hunting, no trespassing. The coal companies rule the land out here in southern West Virginia.”

According to a 2007 report from NASA, water quality is often degraded downstream from mountaintop mines. Water and streambed sediments often have high concentrations of potentially toxic trace elements, including nickel, lead, cadmium, iron and selenium, that exceed government standards, the report says.

“Hundreds of thousands of acres of some of the world’s most biologically diverse forests outside of the tropics have been lost or degraded,” the report concludes, “and, to date, efforts to restore them have had limited success. Valley fills have worsened flash flooding during heavy rain events. Blasting has cracked house foundations.”

Studies have shown more sick days and higher rates of cancer and birth defects  among residents near mountaintop mining.

Reta Conley, 58, lives in Kelley Hollow, in Blair, West Va., near an Apogee Coal mountaintop mining site. The creek beside Conley’s house has turned gray, she says. When the blasting starts, she says, her house shakes, her grandchildren run like they’re being shot at and her husband, a Vietnam veteran, relives his post-traumatic stress.

“He jumps and he wants to hit the ground. It’s terrifying him,” Conley says. “You ought to see my house. It’s busted it all to pieces. When it rains we got a creek in the basement now. It’s terrible. It’s breaking the porch away. It’s breaking the corner of the house on the cinderblocks out. They’ve ruined it.

“I’ve called up there and told them. Bugged them,” Conley said. “They don’t pay you no mind.”

Cindy Rank, a director of the West Virginia Highlands Conservancy, says many mountain villages have been wiped out by mountaintop mining. Rank says she and colleagues walked through the town of Mud in 1995 but there is nothing left of it now.

“It was a lovely little community,” Rank says. “It had a two-mile long stream – really healthy, beautiful hillsides, full of trees. Now you can hardly see anything but a mud puddle.”

Arch has 14 mines throughout Appalachia. In Washington, Albrecht and her colleagues are defending Arch’s right to move ahead with plans for Spruce Number 1 mine in Logan County, West Va. At 2,278 acres it will be the nation’s largest ever mountaintop mining site. So far Albrecht and her colleagues at Hunton & Williams are winning handily.

Albrecht and Arch declined to discuss mountaintop mining because of the pending lawsuit. Arch says on its website that its goal is to “balance economic progress with social responsibility.

“By providing thousands of safe jobs, we support families and communities,” the website reads.

Arch gave more than $5 million in donations to communities in West Virginia, Wyoming and Colorado in 2010, including $2.8 million for teaching initiatives, according to its website. The site lists numerous awards it has acquired for its handling of reclamation once the mining is complete. In 2002, during the Bush administration, it received kudos from the U.S. Surface Mining Office for an 18-hole golf course on previously mined land. It has also received awards during the Obama administration.

“They can make golf courses or build Walmarts, things like that, on these mountaintop removal sites,” Junior Walk, a spokesman for the Coal River Mountain Watch, says, “but you’re not going to get temperate hardwood forests back on the top of these mountains. It’s pretty much a rain forest that we live in here in Appalachia.”

Walk says building on reclamation sites has been problematic because the debris used to replace the lost soil sometimes is not settled enough to support structures, and foundations crack as buildings slip down into the ground. There is a jail built on one of the sites, Walk says, that locals refer to it as “Sink-Sink.”

In the Courtroom: Big Coal Challenges EPA Clean Water Enforcement Authority

In January 2011, the EPA announced it was going ahead with plans to veto a permit the Army Corp of Engineers granted in 2007 under the Bush administration for the Spruce Number 1 mine. The EPA first published a proposal to rescind the permit in the federal register in April 2010.

Under section 404 of the Clean Water Act, the Army Corps of Engineers, with oversight from the EPA, regulates the discharge of dredged or fill material, which includes soil, rock and other debris, into waters and wetlands. Applicants must show they have taken steps to minimize potential impact and provided compensation for unavoidable adverse effects. Environmentalists say the agencies have not done enough to protect the nation’s waterways and wetlands, while industry says the government has gone much further than Congress intended when it passed the Clean Water Act, protecting isolated lands and ponds that do not merit consideration and forcing landowners through unnecessary bureaucratic hoops.

In announcing the veto of the Spruce Number 1 mine in January 2011, EPA said Arch and its subsidiary Mingo Logan Coal had failed to offer any alternative plans to mitigate the environmental impacts during yearlong negotiations. The agency said the mine would bury more than six miles of high-quality streams with millions of tons of mining waste and pollute downstream waters, destroying water quality and ecosystems and killing fish and other wildlife.

“The proposed Spruce Number 1 mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend,” EPA Assistant Administrator for Water Peter S. Silva said in a press release.

Albrecht sued the EPA on behalf of Arch and Mingo Logan in April 2010 and filed an amended complaint on Feb. 28, 2011, arguing that the EPA failed to back up claims that fish and wildlife would be harmed by discharges from the Spruce Number 1 mine. The suit, Mingo Logan v. EPA, filed in the U.S. District Court for the District of Columbia, says the company agreed to create thousands of feet of replacement streams, twice as many as would be lost. Winning approval for Spruce No. 1 was a 10-year process involving a host of state and federal officials and tens of thousands of pages, the suit says, and the EPA could have objected at any point. But the EPA does not have the authority to rescind the permit four years after it was granted, the suit argues.

“Congress did not give the EPA such unbridled power,” the suit says. “EPA’s action should be set aside for this reason alone.”

Federal District Court Judge Amy Berman Jackson strongly sided with Albrecht and her colleagues in March. Jackson, an Obama appointee, mocked the EPA for its attempt to rescind the permit and scolded the agency for “entirely disingenuous” arguments and “magical thinking” in trying to rescind the permit four years after it was granted.

“Poof,” Jackson wrote of the agency’s effort.

In Washington – Lobbying Against Strengthening the Clean Water Act

Meanwhile, Albrecht and close associate Deidre Duncan were fighting this battle on another front. (Albrecht says she is winding down her practice and Duncan is gradually taking over.) The Waters Advocacy Coalition, an industry-backed lobby group, sent a letter, written by Duncan and reviewed by Albrecht, according to a WAC spokesman, asking the White House Council on Environmental Quality to overrule the EPA. The group said allowing the EPA to rescind the permit would create uncertainty for industry and chill investment and job creation.

“The implications could be staggering,” WAC wrote, “reaching all areas of the economy, including but not limited to agriculture, home building, mining, transportation, and energy sectors.”

WAC’s website is set against a backdrop of two crystal-clear drops of water and written across its site are the words, “Protect Our Waters.” Its members include the National Association of Homebuilders, the National Mining Association and the Fertilizer Institute. Critics of WAC say its name and website are misleading.

“The Waters Advocacy Coalition is a misnomer,” former Rep. James Oberstar (D-Minn.) says. “They’re advocating against clean water, not for clean water, aren’t they? They opposed my Clean Water Restoration Act, didn’t they?”

Albrecht says one of WAC’s major missions was, in fact, to defeat the clean water bill Oberstar introduced in 2008 and again in 2010. She says it would have set no limits on what is regulated. Oberstar says the bill would have sheltered thousands of acres of wetlands and streams that lost protection under misguided Supreme Court decisions in January 2001 and June 2006.

Albrecht is primarily a litigator but she and Duncan together earned approximately $1.4 million in lobbying fees for Hunton & Williams over five years beginning in 2006, according to lobbying disclosure reports. That includes $340,000 from WAC. Albrecht occasionally appears before congressional committees as an expert witness on behalf of industry. She also lobbies the White House.

The lobby groups, businesses, public relations and law firms with which Albrecht works are intertwined and sometimes it is difficult to dissect their relationships.

The Foundation for Environmental and Economic Policy, launched in 1989, lists Albrecht as its director of government affairs and general counsel on its website. Albrecht and Duncan earned $940,000 for Hunton & Williams in lobbying fees from the foundation between 2006 and 2011. It is made up of large landowners and developers and pursues policies that balance concerns for the environment and economic progress, according to its website. But the group has filed numerous amicus briefs on behalf of corporations fighting environmentalists.

In June 2011, the organization gave an assist to Albrecht, joining the Chamber of Commerce and 10 other business lobby groups, in filing an amicus brief in Mingo Logan v. the EPA.

Three years ago Hunton & Williams set up the Water Policy Institute which, according to its website, brings together a consortium of business leaders and environmentalists to discuss water policy. The advisory board includes several environmentalists, among them Mark Van Putten, former head of the National Wildlife Federation. The website provides links to a variety of papers, including three by Albrecht.

Hunton & Williams hired Whitman Strategies Group, a public relations and environmental consulting firm, to help organize the foundation. The group is chaired by Christine Todd Whitman, a former New Jersey governor and EPA administrator under President George W. Bush from 2001 to 2003. Whitman, considered an environmental moderate, left her post after several public disagreements with Bush.

Whitman says the foundation is not an effort to gain environmental credibility by Hunton & Williams which represents some of the nation’s worst corporate polluters.

“I don’t know what Hunton & Williams does. I don’t know who they represent.  I have absolutely nothing to do with them as a law firm, Whitman says. “I have long been concerned about water and water policy in our country and around the world and what it means. And what you’re seeing now. We have a serious drought.”

Whitman says that severe drought will cause worldwide destabilization.

“And if you want to look at the history of the world and precursors to war, one of the things is famine and famine happens when you have drought. This is an issue that has huge ramifications and what we’re doing with the Water Policy Institute is totally separate, as far as I’m concerned, with what Hunton & Williams does.”

In fall 2006, Albrecht and other industry lobbyists went to the White House Council on Environmental Quality to complain about new guidelines that the Environmental Protection Agency and the Corps were about to issue. The guidelines were meant to interpret a confusing Supreme Court decision in Rapanos v. United States issued a few months earlier. EPA and the Corps had prepared a press release about the new guidelines, but at the last minute, The New York Times reported, the White House pulled them back. Nine months later the administration issued a much watered-down version, omitting language that would have given regulators broader authority.

Two faxes and an email, obtained by several environmental groups through a Freedom of Information Act request, show a cozy relationship among regulators and Albrecht, the environmentalists say. In fact, Albrecht appeared to have a copy of the guidelines, which had not been made public, Joan Mulhern, senior legislative counsel for Earthjustice, says.

In a Sept. 29, 2006 fax, Albrecht seems to be quoting directly from the proposed guidelines.

“We understand the agencies are considering claiming jurisdiction over wetlands and tributaries,” Albrecht writes, “based on a determination that ‘a water body, either alone or in combination with other similarly situated water bodies, significantly affects the chemical, physical and biological integrity of traditional navigable waterways.’ We have several concerns about this formulation.”

“The issue with Virginia Albrecht and the Bush administration was that at the time she was lobbying behind the scenes to pollute our waters,” Mulhern says, “she clearly had a copy of the document that was not available to anyone else in the public.”

Albrecht said in an email that there was nothing unusual about her dealings with the White House.

“If a policymaker asks for my view on a subject on which I am knowledgeable, I will give it to them,” Albrecht wrote. “I have no idea who else weighed in at that time. Policymakers often talk to many people.”

In Rapanos, the Supreme Court split 4-1-4. Justice Anthony M. Kennedy sided with the four justices who ruled in favor of Rapanos but gave his own interpretation of the Clean Water Act. At issue in the case was John Rapanos’s plan to build a shopping center and condominiums on Michigan land that contained 50 acres of forested wetland and meadows, between 11 and 20 miles from the nearest actual waterway. Justice Antonin Scalia  and three other members of the court said wetlands and streams must have a “continuous surface connection” to a navigable waterway to qualify for protection under the act. But Kennedy said only a “significant nexus,” with a navigable waterway was required. Wetlands and streams were protected, he said, if they significantly affected the integrity of a navigable waterway “either alone or in combination with similarly situated lands in the region.” Kennedy, whose decision offered regulators more leeway, said significant nexus would have to be decided on a case by case basis.

What qualifies as “significant nexus” is still an issue of much debate and confusion. In April 2011 the Obama administration announced draft guidelines that include the language left out by the Bush administration. The proposed new guidance would protect isolated streams and wetlands not covered by the Bush guidelines if they are part of a larger watershed, according to the EPA. The agency says millions of acres of wetlands and tens of thousands of miles of streams would be covered by the new guidance. After lengthy public hearings and consultations with industry and environmentalists, final guidance was expected in April but has yet to materialize.

WAC efforts opposing legislation to strengthen and clarify the Clean Water Act were sidelined when Republicans took control of the U.S. House of Representatives in 2011 and effectively ended any chance of passage. In fact, members of Congress from both parties have introduced numerous pieces of legislation to limit the definition of waters covered under the act, according to Hunton & Williams attorney Karen C. Bennett, who was formerly the vice president of environmental affairs at the National Mining Association.

Hunton & Williams

Albrecht is a partner in the Washington, D.C. office of the white-shoe law firm of Hunton & Williams. Founded in Richmond in 1901, the firm employs 800 lawyers on six continents and boasts on its website that it has represented three quarters of the 100 richest U.S. companies, as calculated by Fortune Magazine.

Among its most notorious corporate clients is Philip Morris, the tobacco conglomerate. Philip Morris and three other tobacco companies were pummeled with charges in the 1990s that top executives hid evidence for decades that smoking is addictive and causes cancer. The companies agreed to pay $368.5 billion in 1998 to settle suits brought by 46 states looking to recover tobacco-related health care costs.

A measure of the firm’s connections can be seen in its most distinguished alumnus: the late Supreme Court Justice Lewis F. Powell Jr., who accepted then President Richard M. Nixon’s appointment to the high court in 1972. In the 1990s the firm’s lobbyists helped write legislation for then Senate Majority Leader Robert Dole (R-Kan.), according to news accounts. The firm’s lobbying department remains adept at shaping legislation for clients, Hunton & Williams says on its website.

The law firm touts its sophisticated worldwide army of private investigators on its website. Turnstone Investigative Group, a division of the company, employs, among others, former sleuths with the FBI, Interpol and Scotland Yard. But when it came to protecting the image of a premier client, the U.S. Chamber of Commerce, the firm went outside for help. And that came back to haunt it.

In February 2011 computer hackers exposed three of the firm’s partners in embarrassing negotiations with military intelligence contractors. In scores of emails the hackers posted on the Internet, Hunton & William lawyers and the contractors discussed ways to spy on foes of both the Chamber and another client, Bank of America. The discussions also focused on dirty tricks, including creating false personas and fake documents to embarrass the Chamber’s critics, according to the emails. In one example, false personas would be created through social media. A target would be friended and then drawn into manipulated conversations that would prove embarrassing. False personas would also be used to link more mainstream groups to the far-left, anti-business Velvet Revolution.

Among the proposed targets were U.S. Chamber Watch, a union-backed group founded to monitor the Chamber’s activities, and liberal journalist Glenn Greenwald, then of Salon.com.

The law partners who negotiated the espionage work for Hunton & Williams were John Woods, Bob Quackenboss and Richard Wyatt Jr., the emails show. Woods represents companies in government investigations and allegations of business crimes and advises corporations on network security intrusions, according to the firm’s website. Quackenboss, a trial lawyer, represents corporate clients in labor disputes. Richard Wyatt Jr. is co-head of the firm’s litigation team and his practice focuses on fighting labor unions.

Wyatt was “very excited about the potential” the proposed spying offered, according to an email on Nov. 9, 2010, from Patrick Ryan, deputy director of analysis at Berico Technologies, in Reston, Va., one of the companies offering their services to Hunton & Williams. Wyatt met with representatives of the intelligence companies that month, according to the emails. Bloomberg Businessweek reports that a person present at the meeting says Wyatt “wore suspenders, smoked a cigar, and propped up his cowboy boots on his desk.” The magazine refers to Wyatt as a “cartoonish vision of a D.C. powerbroker.”

Along with Berico, the emails show, Palantir, based in Palo Alto, Calif., and HBGary Federal, a small firm working out of offices in Bethesda, Md., negotiated the spy work contract with Hunton & Williams. HBGary Federal, now defunct, was affiliated with HBGary in Sacramento, Calif.

Planning started Oct. 19, 2010, when Matthew Steckman, an engineer in Palantir’s McLean, Va., office emailed Aaron Barr, chief executive officer of HBGary Federal, and Ryan of Berico. He proposed putting together an espionage presentation for Hunton & Williams.

“I have spoken to you both about offering a complete intelligence solution to a law firm that approached us,” Steckman wrote.

Each of the companies had extensive experience with spyware.

HBGary, HBGary Federal’s affiliate, sold $3.96 million in espionage and counter-espionage services to government agencies between 2004 and 2011, according to federal contract records. Its customers included the Department of Homeland Security, the FBI and the Defense Security Service. Palantir earned $31.3 million in contracts with U.S. Special Operations Command, the Defense Information Systems Agency, the Department of the Navy and other federal agencies between 2007 and 2011. The company was founded in 2004 with the help of $2 million for startup costs from In-Q-Tel, the CIA’s venture capital firm. Berico Technologies earned $11.2 million in contracts with defense and other government agencies beginning in 2009.

The espionage group dubbed themselves “Team Themis,” the Greek name for the goddess of divine law and order.

Bank of America and the Chamber said in news accounts immediately after the scandal broke they had no knowledge of the discussions revealed in the emails and a Chamber spokesman called the proposals to spy and carry out dirty tricks “abhorrent.” But an email on Nov. 3, 2011, suggests that the Chamber was aware of the plans. In it, Ryan refers to a video that shows how technology developed by Palantir and Berico helped the Department of Defense unwind complicated financial transactions and uncover illegal trafficking of Iranian oil.

He urges Team Themis to work together to create a five- to 10-minute video “along the lines of the Iranian shipping, demo – which is what Bob Q said sold the Chamber in the first place….”

As an example of how easily Team Themis could gather information on adversaries, Barr sent Woods an email in early November about Wyatt. It included information about Wyatt’s personal life and a photo of his two young children.

“I am not sure I will share what you sent last night,” Woods responded on Nov. 9, 2010. “It might freak him out.”

Later that month Barr turned his attention to a former employee of U.S. Chamber Watch to demonstrate his research capabilities and sent an email to Woods about the man and his family. “They go to a Jewish Church in D.C., the Temple Micah,” Barr wrote Nov. 29. “They have 2 kids, son and daughter, look to be 7 and 4.”

Months before Barr began negotiating with Hunton & Williams, he sent an email to Greg Hoglund, then chief executive officer of HBGary in which he talked about a spy technique known as “spear fishing” or “phishing.” The technique targets someone with an email, which secretly installs an attachment that sends files from the target’s computer to the spear fisher’s computer. Spear fishing was one of the techniques Barr later discussed using as part of its services to the Chamber.

“Have … you seen an automated spear fishing capability in the wild?” Barr emailed Hoglund on April 6, 2010, saying he had picked a random person to target. “Quickly found his [T]witter, [F]acebook, [F]licker, [J]eep aficionado forum membership. Trips he has made, friends, group interests, wife, kids, relatives, address, phone number kids schools, sports, etc. This would be too easy to automate and I think scarily effective. Within 10 min. of manual research I had a significant amount of information about him (and felt a bit like a stalker). We should have a capability to do this to our adversaries.”

Barr stepped down as chief executive officer of HBGary Federal several weeks after the scandal broke. According to his LinkedIn profile he says he is currently a Vice President at Defense Contractor. HBGary in Sacramento was sold to ManTech International, a U.S. government IT contractor, last February. Hoglund and his wife, Penny Leavy-Hoglund, remain executives of the firm.

Hoglund and Leavy-Hoglund, then president of HBGary, said they had no knowledge of the spying negotiations and were only loosely affiliated with HBGary Federal. Hoglund and his wife owned 15 percent of HBGary Federal and the company shared computer servers and an office address in Sacramento with HBGary, according to a Los Angeles Times story.

On Jan. 14, 2011, Barr emailed Leavy-Hogland to tell her negotiations with Hunton & Williams were progressing. “Law firm…work is finally worked out,” he wrote.

Leavy-Hoglund responded, “Awesome, does this mean [you’ll] get the contract?”

Executives of Berico and Palantir also denied knowledge of the project. Both cut all ties to HBGary Federal and condemned the activities. Alex Karp, chief executive officer of Palantir and, according to U.S. Chamber Watch, a “self-proclaimed progressive [who] has donated generously to conservative and progressive candidates and causes,” called Salon writer Glenn Greenwald to express his concern.

Matthew Steckman, then 26, was the primary contact at Palantir for Team Themis, but a more senior employee, engineer Eli Bingham, was included in most of the correspondence. Steckman was put on administrative leave pending an internal investigation after the scandal broke, but he is now back working at Palantir, according to a receptionist at the company’s McLean, Va., office.

On Nov. 18, 2010, Steckman sent an email to Team Themis members indicating that senior management, including Karp, was aware of the project. The message concerned how they would split payment for their services. They agreed Palantir would get 40 percent and Berico and HBGary Federal would get 30 each.

“Apologies for taking this long to get back to you. Eli and I had to run this way up the chain (as you can imagine). The short of it is that we got approval from Dr. Karp and the Board to go ahead with the modified 40/30/30 breakdown proposed,” Steckman wrote. “These were not fun conversations, but we are committed to this team and we can optimize the cost structure in the long term (let’s demonstrate success and then take over this market).”

Two weeks before the planning came crashing down with exposure of the emails, Woods sent an “urgent” email to Barr. Woods wrote on Jan. 26, 2011, that he had another client that might be interested and wanted the intelligence contractors to work through Booz Allen Hamilton, a management consulting firm. This is an apparent reference to Bank of America, which hired Booz Allen to assist in preparing it for a threatened “take down” by WikiLeaks.

A controversial anti-secrecy group, WikiLeaks, has released tens of thousands of classified military and diplomatic records. In late 2010 and early 2011 it was threatening to release a huge cache of data belonging to a major American bank. It was widely believed WikiLeaks was talking about Bank of America because a year earlier the group’s head, Julian Assange, said he had obtained the hard-drive of one of Bank of America’s executives.

Hours after Woods wrote to Barr about another Hunton & Williams client that might be interested in Team Themis’s services, Booz Allen Senior Vice President Bill Wansley sent an email to Barr, apparently following up on a conservation they had.

“Nice talking to you,” Wansley wrote. “We will plan a meeting this Friday at 10:30 to discuss how you may be able to support our project.”

It was serendipitous that Hunton & Williams’ negotiations with military espionage contractors ever came to light.

Barr, whom Chamber Watch describes as a “boundlessly ambitious former Navy cryptologist,” claimed to the Financial Times on Feb. 5, 2011, that he had uncovered the leaders of a group of computer hackers known as “Anonymous.” The group, which says it is loosely associated and has no leaders, denied the claim and retaliated by penetrating HBGary Federal’s computers and posting thousands of emails on the Internet.

“A consortium of private intelligence contractors has provided a frightening example of how the U.S. government’s military intelligence programs, vastly expanded in the wake of 9/11, can be turned against American citizens, public interest organizations, labor unions and journalists,” Chamber Watch said in email memo to Natural Resources News Service.

“Most troubling about the scheme was that Team Themis may have been planning to use counter-terrorism tools and technologies developed for the U.S. government to target national security threats against U.S. citizens engaged in nothing more sinister than free speech and the right of association.”

In his Feb. 15, 2011, column, Greenwald did not accept Palantir’s apology, but he singled out Hunton & Williams as the firm that deserved the most attention. He wrote:

“Whatever else is true, Palantir’s knowledge of and involvement in these proposals is more extensive than it originally claimed, and extends beyond the 26-year-old scapegoat just placed on leave.

“But the real party here which deserves much more scrutiny is Hunton & Williams — one of the most well-connected legal and lobbying firms in DC – and its partner John Woods. Using teams of people scouring all the available emails, FDL (Firedoglake) has done its typically thorough job of setting forth all the key facts and the key players — including from Booz Allen — and Woods is at the center of all of it:  the key cog acting on behalf of the Bank of America and the Chamber. It’s Woods who is soliciting these firms to submit these proposals, pursuant to work for the Chamber and the Bank; according to Palantir emails, H&W was recommended to the Bank by the Justice Department to coordinate the anti-WikiLeaks work.

Despite being at the center of this increasingly disturbing scandal, Woods and H&W steadfastly refuse to comment to anyone. … For a lawyer to be at the center of an odious and quite possibly illegal scheme to target progressive activists and their families, threaten the careers of journalists as a means of silencing them, and fabricate forged documents intended for public consumption — and then steadfastly refuse to comment — is just inexcusable. …In exchange for the privileges lawyers receive (including the exclusive right to furnish legal advice, represent others, and act as officers of the court), members of the Bar have particular ethical obligations to the public. At the very least, the spirit — if not the letter — of those obligations is being seriously breached by a lawyer who appears to be at the center of these kinds of pernicious, lawless plots and then refuses to account to the public for what he did.”

The released emails and the subsequent media coverage made Hunton & Williams a joke on Comedy Central’s The Colbert Report. Greenwald appeared on the show to talk about the firm.

“What is most significant here is that you have these plans that are clearly crossing a legal line, with very serious players involved. Law firms like Hunton & Williams are the most powerful in D.C. And no one at any point said, ‘Maybe this goes a little too far, maybe we shouldn’t be doing this.’ … It clearly shows that this sort of stuff in this world of corporate and government consortium of power is pretty normal, is par for the course.”

Hunton & Williams continues to refuse to comment on the emails.

Velvet Revolution and Stop the Chamber, another Chamber critic, filed an ethics complaint against the Hunton & Williams lawyers with the District of Columbia Bar Association. The D.C. bar says it is not permitted to comment on a specific complaint and could say only that the three lawyers have “no disciplinary history.”

Who is Virginia Albrecht?

Albrecht worked as an associate for Hunton & Williams over summers during law school and kept in touch after graduating. She worked for about 15 years at Beveridge and Diamond, a Washington, D.C- based law firm, before returning to Hunton & Williams.

Admirers attribute Albrecht’s success to her simple, clear prose and keen legal mind.

“I’m not at all surprised she’s succeeded,” says U.S. Judge John Paul Wiese of the Court of Federal Claims, for whom Albrecht clerked as a lawyer fresh out of law school. “The quality of her legal analysis and writing ability was outstanding.”

Jan Goldman-Carter, a lawyer for the National Wildlife Federation, has opposed Albrecht in many environmental battles over the past 20 years. She describes Albrecht as “determined” and says she benefits from money not available to the public interest bar.

“She has dramatically more resources than the nonprofit attorneys and the government attorneys that she’s going up against,” Goldman-Carter says. She’s got the massive resources that come with representing industry groups that will pay high fees.”

On a shelf in Albrecht’s office sits her 100-plus-page copy of the Clean Water Act, dog-eared and heavily scribbled with notes in the margins. She says she rereads it whenever she has a new case. Albrecht describes herself as a tough boss who expects those she supervises to love exploring the law’s nuances as much as she does.

“I am a nerd and I’m very demanding in terms of work product in that it be really good and that you really think about it,” Albrecht says. “That’s what I really want. If they really think and they tell me things I haven’t ever thought, I love that.”

Albrecht was born on the South Side of Chicago to William and Joe Swisshelm, a metallurgic engineer for Inland Steel and a homemaker and community activist. Albrecht and a younger brother grew up in what she describes as the gritty steel town of Highland, Ind., about 20 miles outside of Chicago. To help pay her way through college, she worked summers taking inventory in a steel mill, wearing steel-toed shoes and a hard hat to work.

Albrecht graduated from the University of Wisconsin in 1964 and earned a Master’s in communication from the University of Pennsylvania three years later. She worked as a film critic for a public radio station while living in Nashville and still counts movies as one of her favorite hobbies. Albrecht says she decided to go to law school at age 36 when she was looking at her two toddlers, Leslie and Robbie.

“I thought they’re going to grow up overnight and I need to figure out something to do,” Albrecht says. “Law school was a natural because basically I’ve always been interested in policy issues and how the government works.”

Albrecht, who graduated from Vanderbilt Law School in Nashville in 1981, frequently returned home to Indiana with her family on spring and fall breaks. Former classmate and now Nashville lawyer Andree Blumstein recalls wondering how Albrecht found time to study. In the first year, students read voluminous amounts of case law on property and torts, wrongful acts that result in injury to another.

“Oh, it’s easy,” Blumstein recalls Albrecht telling her. “She was always so upbeat.”

Albrecht told Blumstein she turned the cases they were studying into stories and told them to her children on the long rides home. Albrecht laughs at the recollection. She also told stories to her children’s kindergarten and preschool classes, she says.

“Those are like Grimm’s Fairytales,” Albrecht says. The first case she turned into a story focused on Mr. Post, who went out hunting one day in the 1700s and chased a fox through rural Virginia, finally trapping it; and Mr. Pierson, who shot it and took it away.

“You would have twenty four-year-olds looking at you and you would tell the story of Mr. Pierson and Mr. Post and you would say whose fox is it? And you would get the most interesting conversation going on with these little kids.”

Says fellow Hunton & Williams partner Kathy Robb, who works out of the New York office: “When I think about her, it’s always with a smile on her face and a lightness of spirit. That’s just sort of who she is.”

Albrecht lives with her husband, Robert, a retired businessman, in an upscale condominium in the heart of Washington just minutes from her law office. She owns two beach houses on the Outer Banks of North Carolina, each worth about $1 million.

In addition to her legal and lobbying activities, she is also an adjunct professor at the University of Miami School of Law where she teaches a course on wetlands.

Tulloch Rule

As Albrecht approaches retirement, she leaves behind some landmark victories for industry in the form of weakened regulation under the Clean Water Act, and losses for environmentalists, who try to strengthen the law. Among them is defeat of the so-called “Tulloch rule.”

In the mid-1980s two North Carolina developers, with help from the Corps’ regional office in Wilmington, found a loophole in the section 404 regulations protecting wetlands. Of critical importance to the nation’s rivers, streams and other waterways, wetlands filter out toxins, act as sponges during heavy rainstorms and provide habitat for fish and wildlife. Land qualifies as wetland if water is at or near its surface for some period of time, vegetation that thrives in wet conditions is present and the soil is periodically saturated.

Ammons Northchase Corp. wanted to build a housing development and a shopping center, and Landfall Associates wanted to build the city’s first gated community with a swimming pool and two golf courses, including one designed by Arnold Palmer.

The companies faced one hurdle. The land was interspersed with 700 acres of wetlands, including 600 acres of poquosons, relatively rare and valuable wetlands in the Southeast. The developers wanted to avoid the lengthy process of a permit, according to a suit filed by the National Wildlife Federation and its North Carolina chapter against the developers and the Corps on Nov. 30, 1990. Guided by the regional office of the Corps, the developers simply drained the wetlands so that they would no longer qualify for protection, the suit says.

The developers brought in backhoes, ripped up delicate vegetation and tore down trees, according to the lawsuit. They placed a wooden dam in the ground, flooding numerous acres of wetland to create a pond that would function as a water hazard for the golf course.

The case settled out of court in March 1992. The Corps agreed to promulgate a rule that would close the loophole and the companies agreed to set aside wetlands and pay for their upkeep. Howe Creek, a vibrant stream with shell fishing, designated by the state as outstanding resource waters, would be protected, the developers agreed. Neither promise fared well.

“Of course, now the creek’s been overwhelmed by the pollution from the development,” Derb Carter, director of the North Carolina office of the Southern Environmental Law Center says. “It won’t look that different. It’s just polluted. There were a lot of oysters, clams in the creek that were harvested and safe to eat but that’s no longer the case.”

On Aug. 19, 1993, the Corps and the EPA signed off on a regulation known as the “Tulloch rule,” which took its name from the former U.S. Army colonel who then headed the regional office in Wilmington. The rule redefined the discharge of dredged or fill material to include small, incidental fallback during “activity including mechanized land clearing, ditching, channelization or other excavation.” The rule said that if even a small amount of soil fell back to the ground from a bucket during excavation or draining it would be considered a discharge and trigger the need for a permit.

Five days later, before the rule was published in the Federal Register, Albrecht filed suit on behalf of the American Mining Congress. She argued that the rule had no basis in the Clean Water Act. The U.S. District Court for the District of Columbia agreed and struck down the law on Jan. 23, 1997. The court said Congress intended to regulate the discharge of pollution into waterways but not the removal of soil from wetlands. (The lawsuit became known as National Mining Association after American Mining Congress changed its name.)

On June 19, 1998, the U.S. Court of Appeals for the District of Columbia affirmed the district in striking down the Tulloch rule. The Court left the door open, however, for some regulation. It said, for example, that soil removed and then deposited at some distance away could possibly be regulated.

Tulloch II

Encouraged by the judge’s remarks, the Corps and the EPA gave it another try. In what became known as the Tulloch II rule, the agencies declared that all mechanized earth-moving activities result in the discharge of dredged material unless “project-specific” evidence shows otherwise.

The EPA announced plans to adopt Tulloch II on Jan. 9, 2001, and Albrecht sued three weeks later, this time on behalf of the National Association of Homebuilders. Albrecht argued that the agencies lacked the authority to impose the regulation and that it was arbitrary and capricious.

The case bounced between district and circuit court, and the district court finally tossed  it out on Jan. 30, 2007, saying it was too vague and exceeded the agencies’ authority.

Environmentalists and regulators say the court’s decision to throw out the Tulloch rule acted as a go-ahead for developers who wanted to avoid regulation. In announcing its plans to move forward with Tulloch II, the EPA said that the circuit court’s decision to throw out the first Tulloch rule in 1998 had a devastating impact.

“After the court decision upwards of 20,000 wetland acres were targeted for ditching, draining and destruction and approximately 150 miles of streams channelized,” the EPA wrote.

Albrecht dismisses the figures.

“EPA often makes claims like that but when you ask them to actually document them, it’s hard to get them documented,” Albrecht says. “We litigated that for 13 years. And every court that ruled on it at every level rejected what EPA was doing.”

Albrecht helped launch herself as an expert in the Clean Water debate with publication of the book, “Wetlands Regulation in the Real World,” which she co-wrote with Bernard Goode, then a co-worker at Beveridge and Diamond. Goode headed the national regulatory program at the Corps of Engineers for eight years before accepting a job as a consultant at the law firm.

The book looked at 410 applications for wetlands permits in 1992 and concluded that it took an average of 373 days to process a permit and over half the applications were withdrawn because of the long delays. The book became a manifesto for conservatives fighting the EPA and the Corps. Environmentalists said Albrecht and Goode selected a group of the most difficult applications out of 4,292 filed in 1992 and then skewed the statistics to make them say what they wanted.

Goode said he met Albrecht while he was working at the Corps but she had nothing to do with his hiring at the law firm. He said they became very good friends after he joined the firm. They did “a lot of chit-chatting together over the years about regulatory issues,” and when he came up with the idea for the book he asked her to write it with him.

“I had this idea that people don’t really understand what 404 really does to people and I could gather a lot of information and even canvas all 38 Corps districts for horror stories, if you will, and ask them about permitting time and so on,” Goode said. “And she liked that and we jumped all over it.”

Albrecht helped launch herself as an expert in the Clean Water debate with publication of the book, “Wetlands Regulation in the Real World,” which she co-wrote with Bernard Goode, then a co-worker at Beveridge and Diamond. Goode headed the national regulatory program at the Corps of Engineers for eight years before accepting a job as a consultant at the law firm.

The book looked at 410 applications for wetlands permits in 1992 and concluded that it took an average of 373 days to process a permit and over half the applications were withdrawn because of the long delays. The book became a manifesto for conservatives fighting the EPA and the Corps. Environmentalists said Albrecht and Goode selected a group of the most difficult applications out of 4,292 filed in 1992 and then skewed the statistics to make them say what they wanted.

Goode said he met Albrecht while he was working at the Corps but she had nothing to do with his hiring at the law firm. He said they became very good friends after he joined the firm. They did “a lot of chit-chatting together over the years about regulatory issues,” and when he came up with the idea for the book he asked her to write it with him.

“I had this idea that people don’t really understand what 404 really does to people and I could gather a lot of information and even canvas all 38 Corps districts for horror stories, if you will, and ask them about permitting time and so on,” Goode said. “And she liked that and we jumped all over it.”

Clean Water Act – Which Water?

Oct. 18 marks the 40th anniversary of passage of the Clean Water Act. Congress overwhelmingly passed the law the day after President Richard Nixon vetoed it. But debate still abounds over the most basic aspect of the law: which waters Congress meant to protect. The act empowers the EPA and the Corps to regulate, at various points, “navigable waters” and the more expansive “waters of the United States.” The latter has been interpreted to include isolated wetlands and small streams that are part of a larger ecological system.

Environmentalists note that the first sentence in Title I of the act says the goal is “to restore and maintain the chemical, physical and biological integrity of the nation’s waters.” That, they say, establishes that Congress intended a broader interpretation. They say “navigable waters” is simply a carryover from water bills dating back to the 1800s. The confusion, they contend, was caused by the muddled Supreme Court decisions of Rapanos and SWANCC. (See Bulldog Blog Timeline, Jan. 9, 2001.)

Industry argues that Congress draws it power to regulate from the commerce clause of the Constitution, which allows Congress to regulate interstate commerce. The Clean Water Act, they say, is based on earlier bills enacted to keep waters clear for navigation and thus the narrower “navigable waters” applies.

This year, with the Congress hopelessly divided and most members facing re-election, the battles over federal authority moved from the legislature to the courtroom.

“So then what you need to do if you want to have an effect on policy is begin to try and educate the courts,” Albrecht says. “We file a lot of amicus briefs in the Supreme Court to educate the court on the implications, the legislative history.”

Courts in the past that sided with the EPA and others in lawsuits trying to enforce and strengthen the Clean Water Act cited Congress’s authority under the commerce clause. But in his surprise ruling to uphold President Obama’s Affordable Care Act in June, Chief Justice John Roberts took great pains to point out that he supported his conservative colleagues’ opinions that Congress did not have authority under the commerce clause to pass the mandate for health insurance. For decades conservatives and libertarians have tried to blunt Congressional authority under the commerce clause. They are now claiming victory, and Roberts’ decision could have far-reaching ramifications.

Albrecht’s efforts in the courtroom and on Capitol Hill are part of a larger effort by industry and others to limit the powers of the federal government. Called new federalism or cooperative federalism, this philosophy seeks to limit the powers of the federal government, especially through the commerce clause, and turn more power over to state and local governments. Some of Albrecht’s opinions have been championed by the Federalist Society, a conservative and libertarian organization started during the Reagan administration to promote strict constitutional interpretations of the law. During the George W. Bush administration it offered itself as an alternative to the American Bar Association to vet the qualifications of candidates for federal judgeships.

In her April 2008 testimony before Congress when Albrecht testified on behalf the Waters Advocacy Coalition, she referred to “cooperative federalism” as part of her interpretation of the Clean Water Act.

“It is essential to recognize the critical importance of the states in this process. Much of the burden for overseeing the CWA’s requirements is shouldered by the states, which are on the front line of monitoring, assessing and protecting the health of our nation’s waters. The federal government works hand-in-hand with the states through cooperative federalism – the architectural underpinning of the CWA,” she said.

Government cooperation seems like a good idea, but most state and local agencies are not equipped, staffed or funded to provide the necessary oversight in many areas, especially the environment, which is often the biggest target of these efforts.

In two days last March, courts issued rulings that sided with industry on key environmental issues.

On March 21, the Supreme Court sided with an Idaho couple in a four-year battle with the EPA to build their dream home, handing developers and other industries regulated by the agency a major win. (Sackett v. U.S. Environmental Protection Agency). The court said Chantell and Michael Sackett had the right to file an immediate court challenge to an EPA ruling that declared their property wetlands and prohibited them from building on it.

Before the Sackett ruling the EPA and the Corps could issue what is known as a “compliance order” and a property owner could not ask for a judicial review without first going through administrative steps at the agencies.

A compliance order demands that a party take action to prevent damage to wetlands by a certain date or face stiff fines. The Sackett decision could allow industry to tie up the EPA and the Corps in lengthy court battles over steps the agencies say must be taken to protect wetlands. The ultimate intent is to limit waters covered under the Clean Water Act, according to Hunton and Williams attorneys Karen Bennett and Brian Barner. They wrote, “This decision is important for recipients of CWA administrative orders because it allows them to challenge the Corps’ or EPA’s assertion of jurisdiction over the territory included within the order prior to accruing stiff enforcement penalties.”

The Sacketts became the cause celebre, around which industry and conservative politicians rallied this summer. Even Republican presidential candidate Mitt Romney cited the Sacketts as an example of how EPA overreach “interferes with personal freedom.” But of the 1,337 compliance orders issued last year, according to EPA records, only 33 were directed at individuals. The bulk were directed at industry, sewer systems and localities. Albrecht filed an amicus brief in the Sackett case on behalf of 12 trade groups, including the American Petroleum Institute, the National Association of Realtors and the National Mining Association.

These huge corporations and their associations have more resources to make their case than the nonprofit environmental groups and the beleaguered EPA on the other side. But the corporate public relations, lobbying and legal efforts often portray their battles as fights to protect “the little guy.” They also argue that they are battling “job-killing” regulations.

Two days after the Sackett ruling, Judge Jackson ruled in favor of Albrecht’s clients and against the EPA (Mingo Logan v. EPA).

Happy Anniversary – Clean Water Act

Albrecht, testifying on behalf of the Waters Advocacy Coalition on April 16, 2008, urged a House panel not to pass legislation that would clarify the language to include a broader interpretation of the law. Albrecht told the House Committee on Transportation and Infrastructure that such action would trample on Congress’s original intent.

“Congress’s judgment in 1972 to limit its authority to ‘navigable waters,’” Albrecht said, “reflects the fact that Congress understood some waters are federal and some are not and that the nation’s water resources are best protected by building the separate yet complementary roles of state and federal government.”

Others who participated in enacting the legislation disagree with Albrecht’s analysis of the law’s intent.

Former Rep. Oberstar, who lost his seat when Republicans swept the House in 2010, was chief legislative aide to the late Rep. John Blatnik (D-Minn.), one of the authors of the Clean Water Act, and assisted in months of negotiations between the House and Senate before the bill was enacted.

Oberstar says Blatnik’s first effort to clean up the nation’s waters came with the Federal Water Pollution Control Act of 1956 after he took a trip down the Mississippi River.

“What he saw [were] increasing amounts of raw sewage as he went downstream toward New Orleans and the Gulf of Mexico,” Oberstar says. “He said, ‘This is terrible. We have a catastrophe on our hands.’”

Blatnik and his colleagues saw protecting the nation’s water as a national responsibility, Oberstar says. The 1956 law and other piecemeal legislation was not strong enough, he says, which led to passage of the Clean Water Act.

“Water runs among states from one to another. It crosses boundaries,” Oberstar says. “What we intended with that legislation was to provide clean, safe water as a basic right for all Americans – that was the Clean Water Act of 1972.”

Worlds Apart

Clean Water Act opponents have accelerated their efforts to limit the law’s reach and weaken enforcement by regulatory agencies. Demand for coal in the United States is declining as utilities turn to cleaner and cheaper energy sources. More and more coal mined in West Virginia is going to China and other overseas markets, according to a report by Democratic Representatives on the House Natural Resources Committee.

In the hollows surrounding Blair, West Va. are ponds of polluted water mostly hidden from view. The stench is overwhelming. It is a world away from the corridors of wealth and power in Washington in which Albrecht and thousands of other corporate lawyers and lobbyists live and work. But Charles Bella, Reta Conley and millions of other ordinary Americans live with the consequences of the corporate gamesmanship every day.

Rose Ellen O’Connor is an award-winning investigative journalist whose work has appeared in the Los Angeles Times, NBC News, People magazine and The Oregonian.

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