S moke S ignals
MAY 1, 2018
11
Tribe consults with EPA regarding water
By Dean Rhodes
Smoke Signals editor
Four Tribal Council members
consulted with representatives
from the federal Environmental
Protection Agency simultaneous-
ly in person and on the phone on
Thursday, April 19, in Tribal Coun-
cil Chambers.
In person, the agency’s Region-
al Administrator for the Pacific
Northwest and Alaska, Chris Hlad-
ick, was accompanied by four staff
members that included Portland
Harbor Project Manager Sean
Sheldrake, Office of Environmental
Cleanup Director Sheryl Bilbrey,
Remedial Cleanup Program Man-
ager Cami Grandinetti and Trib-
al and Air Toxics Unit Manager
Wenona Wilson (Colville).
On the phone was a bevy of offi-
cials from the agency’s Seattle and
Washington, D.C., offices, which
included Lee Forsgren, deputy as-
sistant administrator of the Office of
Water; Rose Kwok, an environmen-
tal scientist with the Office of Water;
and Ryan Fisher, principal assistant
secretary of the Army Corps of En-
gineers, 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 defini-
tion of “waters of the United States”
under the Clean Water Act, as well
as to check in with regional EPA
representatives regarding the agen-
cy’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 wa-
terways under the Clean Water Act.
Current EPA Administrator
Scott Pruitt sued the Obama ad-
ministration over the regulation
when he was attorney general in
Oklahoma, arguing that the vague
language that asserts federal reg-
ulatory powers over “traditionally
navigable waters of the United
States” amounted to government
overreach.
In repealing the “waters of the
United States” definition, the agen-
cy would revert to a 1986 defini-
tion 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 Environmen-
tal Resources Specialist Meagan
Flier wrote in a staff report that
the Tribe believes that EPA’s pro-
posed 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 prac-
tices were not sufficient for Tribal
consultation on the matter “thus
eroding Tribal sovereignty over
Tribal lands and waters.”
“In multiple ways this would con-
stitute unacceptable behavior to-
ward federal trust responsibilities
on EPA’s part,” Tribal staff wrote.
It was a message that Tribal
Photo by Danielle Frost
Four Tribal Council members and several Tribal staff members consulted with representatives from the Environmental
Protection Agency regarding proposed rule changes to the Clean Water Act and the status of the Portland Harbor
cleanup on Thursday, April 19, in the Tribal Council conference room. Tribal Council Vice Chair Chris Mercier, far left,
chaired the consultation and the highest ranking EPA official in attendance was Chris Hladick (arms crossed), regional
administrator for the Pacific Northwest and Alaska Region of the EPA.
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 con-
sumers 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 peo-
ple,” 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 ad-
ministration was not in effect in
numerous states.
George said she was concerned
about the EPA’s “extremely rapid
schedule” of reviewing the defini-
tion 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 wa-
ter discharge permits is something
the Tribe and its staff would find
valuable.
Fisher, on the phone from Wash-
ington, 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 Wash-
ington, D.C., said the EPA is consid-
ering scheduling regional meetings
and that she would relay the Tribe’s
request to her supervisors.
Changing the definition of “wa-
ters 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 Port-
land 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 ar-
ticle,” 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 de-
cision, 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 pro-
posed near-shore area cleanup of the
river was deemed as going beyond
what is necessary for some contam-
inants and the change in allowable
toxicity concentration levels will cut
$30 million of “unnecessary clean-
up” between the St. John’s Bridge
and the railroad bridge.
In response to a question from Giff-
en, 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 pres-
sure, 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, encour-
aging him to provide leadership in
ensuring the river is cleaned up.
Giffen said that the Tribe does not
use chemical sprays on its timber-
lands 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 con-
cluded 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 Par-
tridge and Lands Department
Project Administrator Brandy
Humphreys.