Hickenlooper Administration Sought EPA Alibi on 2012 Water Bill

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The second in a multi-part series.

Top administration officials for Gov. John Hickenlooper asked the Environmental Protection Agency for help killing a 2012 Republican-sponsored water bill that would have saved rural Colorado water districts and their customers millions of dollars, according to recently obtained emails.

Those emails, uncovered by The Competitive Enterprise Institute and CEI senior fellow Chris Horner in October 2013 as part of a Freedom of Information Act request, demonstrate ongoing conversations over several months between officials in the Governor’s Office and the Colorado Department of Public Health and Environment and Region 8 EPA Director Jim Martin, all of whom sometimes used private, unofficial emails for official government business.

The emails show that administration officials asked Martin for EPA help defeating the bill in the Democratic-controlled State Senate because Hickenlooper feared political fallout and would not veto the bill if it made it to his desk.

Senate Democrats on the Senate Agriculture, Natural Resources, and Energy Committee voted to postpone indefinitely the water bill in a party-line vote on May 3, 2012. The vote killed the bill before it reached Hickenlooper.

icon_exclusiveAlan Salazar, Chief Strategy Officer to the Governor of the state of Colorado, and Martha Rudolph, director of Environmental Programs for CDPHE, used a combination of unofficial and official email addresses in their communications with Martin, who was also using an unauthorized, private email account to both receive and send emails pertaining to the Colorado regulation and legislation.

Martin resigned from the EPA on February 15, 2013. In response to a separate FOIA seeking Martin’s private emails to environmental activists, the EPA administrator had denied using “his personal account to conduct official business,” according to The Daily Caller.

While Martin offered in his supplemental declaration at the time that he “did not take any action on these emails sent to my personal email account or otherwise rely on these emails in furtherance of EPA business” with regard to the separate emails discovered by CEI’s other FOIA request, Martin repeatedly received, and sometimes responded to, emails from Rudolph and Salazar from 2011 to 2012 obtained by CEI and the Independence Institute.

‘I would like to strategize on this’

Beginning in December 2011 Rudolph, using her official CDPHE email address, contacted Martin’s private me.com account about proposed regulations targeting “nitrogen and phosphorus discharged from wastewater treatment plants into rivers, streams, lakes and reservoirs” across the state.

On December 14, 2011, Rudolph forwarded an email to Martin that contained a letter written by regional wastewater managers concerned about the fiscal impact the CDPHE Water Quality Control Division’s proposed 85 and 31 regulations would have on small, rural communities.

Rudolph noted the perceived strength of the arguments laid out in the attached letter (see below)—specifically the lack of a mandate for the new regulations, and the need for the EPA to weigh in on behalf of the regulatory proposal.

“We are likely fighting a losing battle on nutrients, see attached letter. We have met with the Governor’s office, and with the Governor, but I fear the comments in the attached letter will outweigh our arguments in support of the regulation. I believe the assertions that this is not federally required and that there is no required timeframe will be too compelling,” Rudolph wrote in the email.

“So we have been talking over here about the possibility of EPA, at the highest level, having a conversation with the Governor – about the need for the regulation, and specifically what EPA would do if Colorado does not act. I would like to strategize on this, if you think it may be doable. There will also be legislation introduced that would prohibit us from adopting a nutrients regulation. When you have a moment perhaps you could call or we could meet,” Rudolph concluded.

The FOIA does not reveal Martin responding to Rudolph’s pleas for EPA assistance.

‘We don’t want to expose the administration to political fire’

The legislation introduced during the 2012 legislative session that Rudolph mentioned—HB 1161, sponsored by then-Rep. Marsha Looper (R-El Paso)—called for a one-year postponement of the proposed water regulations. The bill ordered a report from a “nutrients scientific advisory board” that would consider cost-benefit analysis and compliance with a previous Hickenlooper executive order against regulations not mandated specifically by law, and unfunded mandates.

The wastewater managers in their December letter to the Governor shared both of those concerns—exceeding federal mandates and imposing onerous costs of compliance.

Salazar, using his AOL account, emailed Martin’s private account about the then-pending legislation and his “Thoughts on Nutrients Response” following the bill’s 8-5 approval from the House Agriculture, Livestock, and Natural Resources committee to the House Committee on Appropriations on March 12, 2012.

At 2:54 p.m. on March 17 Salazar wrote, “1. My sense is that it’s fine to take some time with the response. Doesn’t have to be soon – maybe better if it’s not too quick. 2. Specificity and direction with regard to the questions posed would also be helpful. 3. We don’t want to expose the administration to political fire, but also need to see language that articulates the hard legal consequences for the state. 4. Deeply sorry (me to you) but you don’t need to put that in the letter.”

Martin responded to Salazar at 5:32 p.m.

“Thanks, Alan. In a session and missed your call. Amazingly easier to do work when you are sitting in a hotel room far away. Hearing rumors of more changes [to the bill] so unsure of how best to proceed. But speed is not our forte, that’s for sure.

Salazar had written to Martin at 4:52 p.m. as well, with a suggested line.

“How about: Dear Governor: It’s a friggin unfunded mandate, so sit and spin… Sincerely.”

“I could try that. But not sure LPJ (Lisa P. Jackson) would let me keep my corner office. Let me tone it down just a tad,” Martin wrote back at 6:17 p.m.

‘We do know that he will not veto Looper’s bill if it passes’

Two days before the House Appropriations committee would send the bill to the Committee of the Whole, Martin reached out to Rudolph’s Gmail account, seeking an update on “Water quality” on March 21, 2012 at 4:06 p.m.

“Any more insights into what is happening? And how was ECOS? I think I owe you a drink, by the way,” Martin wrote.

Rudolph responded to Martin a few hours later, at 8:55 p.m.

“Don’t know what is happening – I believe the Gov is waiting to see what EPA does. I will try to find out (although I was told by several in the Gov’s office that the Gov was going to Ok the rule two days before he/she sent the letter so even those in the inner sanctum don’t really know what is happening) We do know that he will not veto Looper’s bill if it passes. What do you think EPA’s response will be? ECOS was good – nice to get away,” Rudolph emailed.

She added, “Drinks would be great. Any free time in the next couple of weeks?”

The next morning, at 9:01 a.m., Martin responded.

“Thanks. Have not seen Looper’s bill, but will go looking for it. Could do drinks Mon, Tues, Thurs, Friday of next week. But not before noon. Cheers,” Martin wrote.

‘Bottom line – are comments from EPA helpful or hurtful?’

In the final set of emails from April 2012, Martin asks Rudolph what effect is perceived when the EPA weighs on state-level issues, this time on “Water and arsenic.”

“Martha – your vm stopped before you did, I think. Bottom line – are comments from EPA helpful or hurtful?” Martin queried.

“They have been helpful. Bob Benson knows the difficulties associated with selecting a standard that is below detect [sic] but more significantly below treatable levels. He recommended a level that is protective yet I understand is relatively easy to treat to,” Rudolph responded. Benson is a senior EPA employee with water-related expertise.

“Thanks,” Martin wrote back.

Click here to read Part I of the series.

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