Tribe consults with EPA regarding clean water rules, Portland Harbor cleanup

Four Tribal Council members consulted with representatives from the federal Environmental Protection Agency simultaneously in person and on the phone on Thursday, April 19, in Tribal Council Chambers.

In person, the agency’s Regional Administrator for the Pacific Northwest and Alaska, Chris Hladick, was accompanied by four staff members that included Portland Harbor Project Manager Sean Sheldrake, Office of Environmental Cleanup Director Sheryl Bilbrey, Remedial Cleanup Program Manager Cami Grandinetti and Tribal and Air Toxics Unit Manager Wenona Wilson (Colville).

On the phone was a bevy of officials from the agency’s Seattle and Washington, D.C., offices, which included Lee Forsgren, deputy assistant administrator of the Office of Water; Rose Kwok, an environmental scientist with the Office of Water; and Ryan Fisher, principal assistant secretary of the Army Corps of Engineers, among many others.

The consultation was twofold with the Grand Ronde Tribe expressing its concerns about the fast-track changes initiated by a presidential executive order to revise the definition of “waters of the United States” under the Clean Water Act, as well as to check in with regional EPA representatives regarding the agency’s commitment to enforcing the record of decision for the Portland Harbor Superfund cleanup.

The Environmental Protection Agency under Trump is working to repeal an Obama-era regulation and then write on a new definition of the rule that clarifies the reach of federal regulations over wetlands and waterways under the Clean Water Act.

Current EPA Administrator Scott Pruitt sued the Obama administration over the regulation when he was attorney general in Oklahoma, arguing that the vague language that asserts federal regulatory powers over “traditionally navigable waters of the United States” amounted to government overreach.

In repealing the “waters of the United States” definition, the agency would revert to a 1986 definition and would also rely on 2008 guidance from the George W. Bush administration about how to apply that definition to the Clean Water Act.

Ceded Lands Manager Michael Karnosh and Tribal Environmental Resources Specialist Meagan Flier wrote in a staff report that the Tribe believes that EPA’s proposed changes regarding the Clean Water Act could result in reduced protections for water quality in the Tribe’s homelands. In addition, EPA’s notice and comment practices were not sufficient for Tribal consultation on the matter “thus eroding Tribal sovereignty over Tribal lands and waters.”

“In multiple ways this would constitute unacceptable behavior toward federal trust responsibilities on EPA’s part,” Tribal staff wrote.

It was a message that Tribal Council Vice Chair Chris Mercier and Tribal Council members Jack Giffen Jr., Kathleen George and Lisa Leno delivered during the in-person and phone consultation.

Karnosh reiterated during the consultation that Grand Ronde Tribal members have a salmon- and water-centric culture and that all traditional Tribal resources rely on water quality. “This is potentially a really, really critical rule change for Tribal resources,” he said.

Mercier concurred. “A lot of Tribes in the region are big consumers of salmon. … People in the Pacific Northwest, especially Tribal people, are some of the largest fish consumers in the country, so water quality is a big issue to Tribal people,” he said.

Karnosh asked for a comparison between acreage or linear miles of waterways that would be affected by the rule change, but Forsgren said the EPA could not answer that question because the 2015 rule instituted by the Obama administration was not in effect in numerous states.

George said she was concerned about the EPA’s “extremely rapid schedule” of reviewing the definition of “waters of the United States” and about the lack of meaningful consultation with Tribes, including Grand Ronde.

“If we don’t take the time to understand the potential impact of this action, I think it makes it incredibly difficult for Tribes and citizens to be able to engage in a meaningful dialogue about our concerns,” George said. “It seems that a rush rule-making may not be the best approach here.”

George said an analysis of how the new definition would affect water discharge permits is something the Tribe and its staff would find valuable.

Fisher, on the phone from Washington, D.C., said the intent of rule-changing effort is to provide clarity regarding where the federal government can enforce the Clean Water Act.

David Allnutt, director of the Office of Environmental Review & Assessment for Region 10 in Seattle, said over the phone that Oregon has its own waste water discharge rules regarding water quality and issuing permits, so the rule changes might have little effect in the state. “One person’s clarity is another person’s over-regulation or under-regulation,” he said.

Flier asked if the EPA plans to schedule regional consultation opportunities for Tribes as the rule-making process continues its course instead of offering just one consultation opportunity in Washington, D.C., that occurred in February and attracted only 20 Tribal representatives.

Kwok, on the phone from Washington, D.C., said the EPA is considering scheduling regional meetings and that she would relay the Tribe’s request to her supervisors.

Changing the definition of “waters of the United States” in the Clean Water Act is a two-step process, EPA officials said. After the proposed new rule is published in the Federal Register sometime this summer, the proposal will be out for public comment and Tribes will be able to submit their input at that time.

Portland Harbor cleanup

The consultation segued into discussing the Portland Harbor superfund site cleanup and most of the EPA officials on the phone left the meeting.

Mercier said that the Grand Ronde Tribe has been involved in the Portland Harbor cleanup since the late 1990s and remembered writing about the subject as a Smoke Signals reporter in the early 2000s. “And I think I interviewed you for that article,” Mercier said, looking at Tribal Council member Kathleen George, who used to work for the Tribe’s Natural Resources Department.

Bilbrey said that the record of decision, issued in January 2017 just before the Trump administration took office, was not being changed. However, some toxicity levels were being relaxed because EPA found that some chemicals were seven times less toxic than previously thought two weeks after the record of decision was approved.

“We are holding fast to that ROD,” Bilbrey said.

Sheldrake, the Portland Harbor project manager, said that the proposed near-shore area cleanup of the river was deemed as going beyond what is necessary for some contaminants and the change in allowable toxicity concentration levels will cut $30 million of “unnecessary cleanup” between the St. John’s Bridge and the railroad bridge.

In response to a question from Giffen, Sheldrake said the new toxicity standards might not get the harbor’s water “clean,” but it will reach an acceptable level of risk under clean water regulatory standards.

George said the Willamette River is long overdue to be cleaned up and added that she is concerned that something else will be changed in the record of decision, delaying or decreasing the amount of cleanup work required.

“What’s more interesting to me is ‘What else?’ because the EPA, state of Oregon, PRPs (principal responsible parties) and the affected communities have been working on this 23 years now and this river is overdue to be cleaned up,” she said. “The other piece is what I’m more concerned about. … We need to move forward to clean up this river.”

Grandinetti and Sheldrake said that if the record of decision were to be re-opened because of political pressure, it would probably entail another 15 years of work on the superfund site. “The cleanup is happening,” Grandinetti said. “There is pressure to change it (the ROD), but there are parties who want to move forward.”

“We’ve got to get out there and get busy,” George told Hladick, encouraging him to provide leadership in ensuring the river is cleaned up.

Hladick said the combination of Oregon Gov. Kate Brown, Portland Mayor Ted Wheeler and the entire Oregon congressional delegation wanting to see the cleanup accomplished will help ensure the record of decision is maintained.

Giffen said that the Tribe does not use chemical sprays on its timberlands and that the waters flowing off the Reservation are some of the cleanest in Oregon. However, the fish that migrate to Agency Creek to spawn have to swim through 66 miles of contaminated water and through Portland Harbor.

“That is the heart of why we’re so passionate about the Portland Harbor cleanup,” Giffen said.

The 92-minute consultation concluded with Mercier saying that it was “very informative” and that the Tribe will continue to be good stewards of its ceded lands and cultural history because of its ties to the Willamette River.

Also attending the consultation were Tribal Attorney Holly Partridge and Lands Department Project Administrator Brandy Humphreys.