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Weekly Update Volume 32, Issue 27

09/23/2002

LITIGATION

Note: The cases listed are available from the ELR Document Service.

LAND USE, NATIVE AMERICAN LANDS, ZONING:

The Ninth Circuit affirmed a district court decision that a Washington state county lacked land use jurisdiction over a proposed building project located on land within a Native American reservation and owned in fee simple by registered members of a Native American tribe. The property owners planned to construct a 25-unit subdivision on their land within the reservation. They sought and received approval for construction from the reservation planning office. Nevertheless, the county asserted land use jurisdiction over the property because it was held in fee simple and freely alienable, and the property owners' financing company would not release funds until it was determined if the county had jurisdiction. Thus, the owners sought and received a district court declaratory order that the county did not have land use jurisdiction over the development. The county subsequently appealed. However, state in rem land use regulation does not apply to Native American lands when those lands are freely alienable. Unlike previous precedent which held that alienability of Native American land and taxation of land are inextricably linked, alienation of Native American land and plenary in rem land use regulation are entirely unrelated. Moreover, the U.S. Congress did not expressly authorize plenary state land use regulation over Native American lands when it made certain Native American land freely encumberable. Congress did intend to make alienable lands freely encumberable, but land use regulation is not an encumbrance on the land that passes with the fee. Land use regulation encumbers the transactions and activities involving the land, such as the number of housing units in a subdivision. In addition, exceptional circumstances do not exist that would allow the county to exercise land use regulation over the property owners' land. Gobin v. Snohomish County, No. 00-36031 (9th Cir. Sept. 18, 2002) (16 pp.).

NEPA, ESA, GALLATIN NATIONAL FOREST, TIMBER SALE:

The Ninth Circuit held that the U.S. Forest Service violated NEPA and the ESA while preparing assessments of a proposed timber sale in the Gallatin National Forest. The Gallatin National Forest Plan requires every timber sale to maintain a maximum road density standard throughout the forest, but with the sale at issue and 11 other proposed sales, the road density for the forest will drop below the required density. The Forest Service conceded the insufficient density, but enacted a site specific amendment to the forest plan exempting the timber sale from density requirements. Two environmental groups challenged the sale and the Forest Service ESA-required biological assessment (BA) for the sale. The Forest Service did not violate NEPA by committing the Forest Service to the site specific density amendment for the timber sale at issue and the remaining 11 sales. Although a Forest Service memoranda recommends that each of the 12 sales incorporate a site-specific amendment, the memoranda was not binding for the timber sales, and the Service was free to decide not to seek an amendment for a sale. Likewise, the memoranda did not render all of the proposed density amendments connected, cumulative, or similar actions that require issuance of a single EA or EIS for all of the density amendments. Each of the sales--and, thus, each of the amendments--has independent utility, and each of the sales is subject to an independent density amendment. However, the Forest Service violated NEPA by failing in its EA for the timber sale to analyze the cumulative impacts that all of the reasonably foreseeable road density amendments would have on the forest. Similarly, the Forest Service violated the ESA by preparing an inadequate BA for the timber sale. Both the EA and the BA indicated that the sale would impact the threatened grizzly bear, but in analyzing the effects of the sale on the bears the Forest Service failed to provide adequate explanation as to why it chose the relevant grizzly bear analysis area. The BA contains no evidence or explanation for the choice of the analysis area and, consequently, is inadequate. Due to the NEPA and ESA violations, the court enjoins timber sales until the Forest Service complies with NEPA and the ESA. Native Ecosystems Council v. Dombeck, No. 01-35827 (9th Cir. Sept. 16, 2002) (30 pp.).

NATIONAL FOREST MANAGEMENT ACT (NFMA), NEPA, BOISE NATIONAL FOREST:

The Ninth Circuit held that two U.S. Forest Service timber sales in the Boise National Forest in Idaho violated the NFMA and NEPA. Environmental groups brought suit against the Forest Service seeking to enjoin the sales, but the district court held that the groups failed to administratively exhaust some of their claims and that claim preclusion barred their remaining claims due to a previous case between the parties. However, the groups' claims were not barred by claim preclusion and the claims were administratively exhausted. The prior case between the parties did not address claims identical to the claims presented. Likewise, although the groups failed to clearly express all of their claims at the administrative level, they clearly expressed concern about the proposed sales and their impact on the pileated woodpecker. It would be unreasonable to require the groups to express the exact language of the statute allegedly violated in order to qualify for administrative exhaustion. Further, the Forest Service approval of the timber sales violated the NFMA because when the sales were approved the Boise National Forest forest plan did not comply with the 36 C.F.R. §219.19 requirements that wildlife habitat be managed to maintain existing native and desired non-native species. Specifically, the forest plan's standard for maintaining the viability of old growth dependent species was invalid; the Forest Service failed to comply with the standard by failing to rededicate acres of old growth lost to fire; and the Service failed to ensure that compartments of timber identified as containing old growth actually did contain old growth. The Forest Service's attempt to save the sales by using a new definition of "old growth" fails because the forest plan does not include the new definition and the forest must be managed according to its plan. Moreover, the Forest Service may not use evaluation of timber habitat alone as a proxy for monitoring wildlife population or management indicator species. The Forest Service's monitoring reports indicate that the evaluation of habitat as a proxy does not reasonably ensure viable species populations. In addition, the Forest Service violated NEPA because the EIS for one timber sale was inadequate. The EIS failed to justify the choice of scale it used to conduct a cumulative effects analysis with respect to a number of indicator species. Therefore, the court enjoined the timber sales until they comply with the NFMA and NEPA. Idaho Sporting Congress, Inc. v. Rittenhouse, No. 01-35403 (9th Cir. Sept. 17, 2002) (30 pp.).

NATIONAL FOREST MANAGEMENT ACT (NFMA), NEPA, MOOTNESS, PAYETTE NATIONAL FOREST:

The Ninth Circuit reversed a district court dismissal of two counts of an environmental group's suit alleging that five U.S. Forest Service timber sales in the Payette National Forest in Idaho violate the NFMA and NEPA, but dismissed the group's appeal of the district court's limited grant of summary judgment in the group's favor. The two dismissed counts alleged that the Forest Service failed to monitor and protect certain old growth species from the effects of the timber sale as required by the NFMA. A permanent injunction currently bars the Forest Service from proceeding with any of the five timber sales. Nevertheless, the group's NFMA claims are not moot for two of the sales. Effective relief is still available to mitigate any damage that occurred at two of the sales before the injunction from unlawful logging. Further, although the two counts address forest-wide management requirement under the NFMA, they are sufficiently tied to the group's particular challenge to the two sales as to be reviewable under the APA. Also, issue preclusion does not bar the counts because the issues being litigated are not the issues that had been previously litigated in a separate case between the parties. Therefore, the two counts are remanded to the district court to determine if the Forest Service violated the NFMA at the two sales. However, for the remaining three sales, no logging occurred at these sites before the injunction. Thus, no effective relief is available for these sales and the group's NFMA claims are moot for these sales. In addition, the group has no standing to challenge the summary judgment that the district court issued in its favor on its NEPA claims because the group has suffered no cognizable injury. Idaho Sporting Congress, Inc. v. Alexander, No. 01-35386 (9th Cir. Sept. 5, 2002) (4 pp.).

NEPA, INDIAN GAMING REGULATORY ACT (IGRA), STANDING:

A district court held that the DOI did not violate NEPA or the IGRA when it authorized and issued a FONSI for the taking of land into trust for a California Native American tribe so that the tribe could build a casino. In the early 1900s the federal government recognized the tribe and set aside land for it, but in 1967, the tribe's reservation was terminated. In 1991, the tribe received formal recognition under the Auburn Indian Restoration Act (AIRA), which required the DOI to establish an economic development plan for the tribe and permitted the DOI to accept certain property in trust for the tribe's benefit. As part of its economic development, the tribe proposed a casino on lands the DOI would take into trust. After completing an EA, the DOI authorized taking certain lands into trust for the casino. A citizens group and several towns brought suit alleging NEPA, IGRA, and constitutional law violations and, thus, sought to enjoin the DOI from taking the land into trust. However, the DOI EA took a hard look at the water supply in the area of the proposed casino and reasonably determined, based on the evidence, that a casino well would not have a significant impact on area water supply. Similarly, the DOI properly considered the casino's wastewater disposal options. Likewise, the DOI EA sufficiently discussed the potential effect of the casino on the area's endangered and threatened species. And, the DOI properly identified the EA's scope of alternatives and addressed each in reasonable detail. Moreover, the DOI did not violate the IGRA by failing to determine if taking the land into trust would be in the best interests of the tribe and would not be detrimental to the surrounding community. The IGRA provides an exception to the required determinations for lands restored to tribes that have been restored to federal recognition. "Restored lands" means lands that would return the tribe to its former position, not the lands that the tribe held originally when first recognized in the early 1900s. Further, the AIRA authorizes the DOI to take into trust county lands for the tribes. In addition, the citizens group lacked standing to bring constitutional claims under the Enclaves Act, the Statehood Clause, the Tenth Amendment, the Equal Footing Doctrine, and the Nondelegation doctrine, and if the group had standing, these claims would fail. City of Roseville v. Norton, No. 02-0628 (EGS) (D.D.C. Sept. 11, 2002) (Sullivan, J.) (105 pp.).

CONSTITUTIONAL LAW, TAKINGS:

The Federal Circuit affirmed a Court of Federal Claims determination that the U.S. Army Corps of Engineers did not take developers' property when it denied them a CWA §404 permit to develop their entire property. After several failed attempts to develop the property, the developers sought a §404 permit from the Corps. The Corps originally denied the developers' application and proposed alternatives. Instead of implementing the alternatives, the developers filed suit alleging a taking. While the suit was pending the Corps issued the developers a §404 permit allowing limited property development. The Court of Federal Claims then held that the Corps' actions resulted in neither a categorical taking nor a regulatory taking. The developers appealed. However, the Court of Federal Claims did not err in determining that the parcel of land to be considered under its takings analysis was all of the 13.2 acres of wetlands on the property and not just the 11 acres of wetlands that the Corps would not allow to be developed. The developers raised the argument that the 11-acre parcel was the relevant parcel for the first time on appeal. Consequently, the Court of Federal Claims properly refused to consider the argument. Moreover, the Court of Federal Claims did not err in applying the Penn Central factors and determining that a taking did not occur. The Court of Federal Claims properly analyzed the §404 permit's impact with respect to the entire 14.5 acre property and did not improperly base its analysis on the 13.2 acres of wetlands alone. According to U.S. Supreme Court precedent, the relevant parcel for a takings analysis is the parcel as a whole. Likewise, the Court of Federal Claims committed no error in declining to adjust the value of the property for inflation before determining whether the Corps permit would allow the developers to realize a profit from developing the property. Walcek v. United States, No. 01-5108 (Fed. Cir. Sept. 11, 2002) (12 pp.).

CWA, CITIZEN SUITS, NOTICE, ONGOING VIOLATION:

The Ninth Circuit affirmed a district court decision that an environmental group provided a dairy with adequate notice of a CWA citizen suit against it and that the group adequately proved ongoing violations at the dairy sufficient to prevail at trial. Based on the fact that the dairy's CWA violations originated from the same source, were of the same nature, and were easily identifiable, the group's notice to the dairy was adequate. The notice allowed the dairy to identify the alleged violations contained in the notice and in the appendix to the notice. Moreover, the group's notice included all information required by EPA regulation. Also, the CWA does not require the group to provide an exhaustive list of each individual, specific discharge limitation allegedly violated. The group's notice provided the dairy with sufficient detail of the alleged violations. Further, the district court correctly concluded that there were three ongoing violations of the CWA at the dairy. The evidence supported a finding of ongoing violations from discharges from a dairy truck wash, misapplication or over application of waste waters to fields, and a discharge from a dairy drain. In addition, the dairy drain is a navigable water of the United States, the dairy meets the CWA definition of a confined animal feeding operation (CAFO) and does not meet a CAFO point-source exemption to the CWA, and the district court neither erred in awarding the group attorneys costs nor in determining the amount awarded. Community Ass'n for Restoration of the Environment v. Henry Bosma Dairy, No. 01-35261 (9th Cir. Sept. 16, 2002) (23 pp.).

NEPA, CWA, HIGHWAYS, LEGACY PARKWAY CONSTRUCTION:

The Tenth Circuit held that the EIS completed for the Legacy Parkway highway construction project in Utah violated NEPA and that the U.S. Army Corps of Engineers arbitrarily and capriciously issued a CWA §404 permit for the project. The project EIS improperly eliminated a project alternative based on an inadequate estimate of the alternative's cost. NEPA requires an agency preparing an EIS to verify cost information, but the state department of transportation failed to do so. Also, the EIS and the record lacked any methodology for determining the cost of the alternative. Similarly, the EIS failed to properly consider the alternatives to the sequence of construction for three related transportation projects. Delaying construction of the highway at issue or another related highway until completion of a proposed public transit expansion was a reasonable alternative to the sequence of the construction of the three projects, but the EIS failed to address this alternative, thus, rendering it inadequate. Likewise, the EIS violated NEPA by failing to consider the reasonable alternative of integrating highway construction with public transit expansion. Also, the wildlife impact analysis in the EIS is inadequate under NEPA. The EIS only considered the impact of the highway on wildlife within 1,000 feet of the highway. This was done despite evidence that the project would adversely impact wildlife as far 1.2 miles from the highway. The 1,000 foot limit also failed to adequately address the highway's impact on migratory birds. In addition, the Corps violated the CWA regulations by failing to verify the cost estimates of a highway alternative before issuing the permit. The Corps also lacked sufficient information to determine whether the alternative was practicable. Further, before issuing the §404 permit, the Corps failed to rationally assess whether a narrower highway median was a practicable alternative for the highway construction. Similarly, the Corps failed to adequately consider whether a right of way on the highway median that included a future utility corridor and a berm was a practicable alternative. Also, the Corps failed to properly consider the impact of the highway construction on wildlife. Therefore, the highway construction is enjoined and the EIS remanded to correct its inadequacies. Utahns for Better Transportation v. United States Department of Transportation, No. 01-4216 et al. (10th Cir. Sept. 16, 2002) (76 pp.).

CONTRACTS, UNJUST ENRICHMENT, DISCOVERY:

A district court dismissed several tort and contract claims that a hazardous waste site remediation company brought against the trustees of an Indiana Superfund site and two companies that performed environmental services at the site, but allowed the remediation company to continue with its unjust enrichment action against the trustees. Under the contract between the trustees and the remediation company for the cleanup of the site, the law of Indiana applies to all contract claims. Likewise, under a choice of law analysis the law of Indiana applies to all tort claims brought by the remediation company against the trustees and the environmental services companies because the basis of any of the tort claims is the Indiana site or the contract between the remediation company and the trustees, which is governed by Indiana law. Thus, Indiana has the most compelling interest in the remediation company's claims in both contract and tort. However, applying Indiana law, the remediation company's negligent misrepresentation claims against the trustee must be dismissed. Indiana does not recognize a cause of action for negligent misrepresentation, and the claims cannot be construed as fraud claims because there has been no alleged affirmed misrepresentation of fact and the trustees had no duty to disclose. Similarly, the remediation company's duty of good faith and fair dealing claims against the trustees must be dismissed because to argue that a duty of good faith exists, the existence of a valid contract must be established. A valid contract exists here between the trustees and the remediation company. The contract, however, is governed by Indiana law, and Indiana law does not recognize a claim for breach of duty of good faith or fair dealing and such a duty cannot be implied due to alleged fraud. The remediation company can continue with its unjust enrichment claim against the trustees because if the remediation company were to successfully prove lack of a contract--an as yet unresolved issue--then it could claim unjust enrichment by the trustees. Moreover, the remediation company's negligent misrepresentation claims against the environmental services companies are dismissed because Indiana law does not recognize such claims. Similarly, the remediation company's indemnification and contribution claims against the companies are dismissed because no contractual or implied right to indemnity or contribution exists. In addition, the remediation company's motion to compel discovery is granted in part with respect to certain data documents for the site. Ball v. Versar, Inc., No. IP01-0531-C-H/ (D. Ind. Sept. 6, 2002) (Hamilton, J.) (30 pp.).

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA amended the NESHAPs for pesticide active ingredient production. 67 FR 59335 (9/20/02).
  • EPA proposed to amend the 1983 new source performance standards for bulk gasoline terminals and the 1994 NESHAPs for gasoline distribution facilities. 67 FR 59433 (9/20/02).
  • EPA issued an interim final rule to clarify the scope of the monitoring required in operating permits issued by state and local permitting authorities or by EPA under CAA Title V. 67 FR 58529 (9/17/02).
  • EPA announced the availability of a final document and a CD-ROM titled The Metal Finishing Facility Risk Screening Tool: Technical Documentation and User's Guide. 67 FR 59059 (9/19/02).
  • EPA proposed either to redesignate the Portland, Maine, moderate ozone nonattainment area to attainment for the 1-hour NAAQS or to determine that the Portland area did not reach attainment by November 15, 1997, and must be reclassified to serious. 67 FR 58551 (9/17/02).
  • EPA granted the Massachusetts Department of Environmental Protection the authority to implement and enforce its perchloroethylene air emissions regulation in place of the federal dry cleaning NESHAP for area sources. 67 FR 58339 (9/16/02).
  • EPA approved the New Hampshire Department of Environmental Service's request for delegation of authority to implement and enforce its new source performance standards and NESHAPs. 67 FR 59001 (9/19//02).
  • EPA approved updates to the "Delegation Status of New Source Performance Standards" table to indicate that Utah has been delegated the authority to implement and enforce new source performance standards and to add entries for newly delegated new source performance standards. 67 FR 58998 (9/19/02).

HAZARDOUS & SOLID WASTES:

  • EPA entered into a proposed administrative settlement under CERCLA in connection with the Amchem CERCLA Removal site in Ambler, Pennsylvania. 67 FR 58424 (9/16/02).

PESTICIDES:

  • EPA announced the availability of its report on the Food Quality Protection Act tolerance reassessment progress and risk management decision for chlorpropham. 67 FR 58795 (9/18/02).

TOXIC SUBSTANCES:

  • EPA proposed to grant two petitions submitted by the DOD to import foreign-manufactured PCBs that the DOD currently owns in Japan and Wake Island for disposal in the United States. 67 FR 58567 (9/17/02).

TRANSPORTATION:

  • The U.S. Coast Guard is implementing regulations to include minimum standards for the performance and use of tank level or pressure monitoring devices on single-hull tank ships and single-hull tank barges carrying oil or oil residue as cargo. 67 FR 58515 (9/17/02).
  • DOT's Research and Special Programs Administration amended its regulations concerning registration of persons who transport or offer for transportation in commerce certain categories and quantities of hazardous materials. 67 FR 58343 (9/16/02).

WATER QUALITY:

  • EPA amended the effluent limitations guidelines and standards under the CWA for the pulp, paper, and paperboard point source category. 67 FR 58990 (9/19/02).
  • EPA announced the availability of a proposed NPDES general permit for stormwater discharges from small municipal separate storm sewer systems located in the geographic areas of EPA Region 9 where the NPDES permit program has not been delegated. 67 FR 58802 (9/18/02).

WETLANDS:

  • DOE prepared a floodplain/wetland assessment in connection with its proposal to construct and operate access control and traffic improvements at the Los Alamos National Laboratory in New Mexico. 67 FR 58407 (9/16/02).

WILDLIFE:

  • FWS took emergency action to establish seven additional manatee protection areas in Florida. 67 FR 59407 (9/20/02).
  • FWS and the U.S. Forest Service announced the Federal Subsistence Board's emergency closure of certain public lands in Alaska to protect muskox populations in Unit 26(C) of the Arctic National Wildlife Refuge. 67 FR 58695 (9/18/02).
  • FWS determined that the proposed designation of critical habitat in Los Angeles and Santa Barbara Counties, California, for the unarmored threespine stickleback under the ESA should not be made final. 67 FR 58580 (9/17/02).

DOJ NOTICES OF SETTLEMENTS:

  • In re Borden Chemicals & Plastics Operating Ltd. Partnership, No. 01-1268 (Bankr. Ct. D. Del. Sept. 13, 2002). A settling RCRA defendant that is the parent of the general partner of a debtor that owned and operated a chemical manufacturing facility in Geismar, Louisiana, must come into compliance with RCRA regulations, must perform facilitywide corrective action, and must protect an aquifer underlying the facility; the debtor must perform certain supplemental environmental projects that it has yet to complete under a 1998 consent decree.67 FR 58824 (9/18/02).
  • United States v. City of Toledo, No. 3:91:CV7646 (N.D. Ohio Aug. 28, 2002). A settling CWA defendant must construct improvements to end its practice of discharging raw sewage from its treatment plant; must build an expanded and enhanced primary treatment system; must take additional steps to assure that flows from the plant will receive full biological treatment; must prepare a long-term control plan to address its combined sewer overflows for approval by EPA and the Ohio EPA and construct all improvements set forth in the approved plan; must take specific steps to eliminate discharges from separated sanitary portions of its sewer system; must pay $500,000 in civil penalties--$425,000 to the United States and $75,000 to the state of Ohio; and must undertake two supplemental environmental projects--valued at $1 million--to reconstruct wetlands for public use and to clean up a brownfields site, both located within the city of Toledo. 67 FR 58824 (9/18/02).
  • United States v. City of Waterbury, No. 3:02CV01569 (CFD) (D. Conn. Sept. 5, 2002). A settling CWA defendant that discharged untreated wastewater to navigable waters from its publicly owned treatment works through point sources other than those authorized by its permit must pay a $350,000 civil penalty and must perform injunctive relief to achieve compliance with the CWA and the CAA. 67 FR 58824 (9/18/02).

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved. 

THE CONGRESS

CHAMBER ACTION

  • H.R. 3880 (CAA; transportation conformity), which would provide a temporary waiver from certain transportation conformity requirements and metropolitan transportation planning requirements under the CAA and under other laws for certain areas in New York where the planning offices and resources have been destroyed by acts of terrorism, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S8581 (daily ed. Sept. 12, 2002).

COMMITTEE ACTION

  • S. 198 (noxious weeds; invasive species) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-281, 148 Cong. Rec. S8671 (daily ed. Sept. 17, 2002). The bill would require the Secretary of the Interior to establish a program to provide assistance through States to eligible weed management entities to control or eradicate harmful, nonnative weeds on public and private land.
  • S. 691 (land conveyance) was reported by the House Committee on Resources. H. Rep. No. 107-664, 148 Cong. Rec. H6417 (daily ed. Sept. 19, 2002). The bill would direct the Secretary of Agriculture to convey certain land in the Lake Tahoe Basin Management Unit, Nevada, to the Secretary of the Interior, in trust for the Washoe Indian Tribe of Nevada and California.
  • S. 975 (land use; sustainable development) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-290, 148 Cong. Rec. S8753 (daily ed. Sept. 18, 2002). The bill would improve environmental policy by providing assistance for State and tribal land use planning, to promote improved quality of life, regionalism, and sustainable economic development.
  • S. 1069 (national trails) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-276, 148 Cong. Rec. S8564 (daily ed. Sept. 12, 2002). The bill would amend the National Trails System Act to clarify Federal authority relating to land acquisition from willing sellers for the majority of the trails in the System.
  • S. 1846 (oil and gas drilling; Finger Lakes) was reported by the Senate Commitee on Energy and Natural Resources. S. Rep. No. 107-282, 148 Cong. Rec. S8671 (daily ed. Sept. 17, 2002). The bill would prohibit oil and gas drilling in Finger Lakes National Forest in New York.
  • S. 1865 (national parks) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-279, 148 Cong. Rec. S8618 (daily ed. Sept. 13, 2002). The bill would authorize the Secretary of the Interior to study the suitability and feasibility of establishing the Lower Los Angeles River and San Gabriel River watersheds in California as a unit of the National Park System.
  • S. 1883 (water resources) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-284, 148 Cong. Rec. S8671 (daily ed. Sept. 17, 2002). The bill would authorize the Bureau of Reclamation to participate in the rehabilitation of the Wallowa Lake Dam in Oregon.
  • S. 2018 (Cibola National Forest) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-285, 148 Cong. Rec. S8671 (daily ed. Sept. 17, 2002). The bill would establish the T'uf Shur Bien Preservation Trust Area within the Cibola National Forest in New Mexico to resolve a land claim involving the Sandia Mountain Wilderness.
  • S. 2222 (land conveyances) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-280, 148 Cong. Rec. S8618 (daily ed. Sept. 13, 2002). The bill would resolve certain conveyances and provide for alternative land selections under the Alaska Native Claims Settlement Act related to Cape Fox Corporation and Sealaska Corporation.
  • H.R. 706 (land conveyance) was reported by Senate Committee on Energy and Natural Resources. S. rep. No. 107-287, 148 Cong. Rec. S8671 (daily ed. Sept. 17, 2002). The bill would direct the Secretary of the Interior to convey certain properties in the vicinity of the Elephant Butte Reservoir and the Caballo Reservoir, New Mexico.
  • H.R. 2115 (water resources) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-288, 148 Cong. Rec. S8671 (daily ed. Sept. 17, 2002). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of a project to reclaim and reuse wastewater within and outside of the service area of the Lakehaven Utility District, Washington.
  • H.R. 2828 (water resources) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-288, 148 Cong. Rec. S8671 (daily ed. Sept. 17, 2002). The bill would authorize payments to certain Klamath Project water distribution entities for amounts assessed by the entities for operation and maintenance of the project's transferred works for 2001 and would authorize refunds to such entities of amounts collected by the Bureau of Reclamation for reserved works for 2001.

BILLS INTRODUCED

  • S. 2928 (Jeffords, I-Vt.) (CWA) would amend the CWA and the Water Resources Development Act of 2000 to modify provisions relating to the Lake Champlain basin. 148 Cong. Rec. S8665 (daily ed. Sept. 12, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2937 (Edwards, D-N.C.) (Blue Ridge National Heritage Area) would establish the Blue Ridge National Heritage Area in North Carolina. 148 Cong. Rec. S8618 (daily ed. Sept. 13, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2944 (Baucus, D-Mont.) (taxes; Superfund; oil spills) would amend the Internal Revenue Code of 1986 to extend Superfund, oil spill liability, and leaking underground storage tank taxes. 148 Cong. Rec. S8673 (daily ed. Sept. 17, 2002). The bill was referred to the Committee on Finance.
  • S. 2952 (Bayh, D-Ind.) (national trails) would amend the National Trails System Act to extend the Lewis and Clark National Historic Trail. 148 Cong. Rec. S8753 (daily ed. Sept. 18, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2963 (Johnson, D-S.D.) (U.S. Army Corps of Engineers) would reform the United States Army Corps of Engineers. 148 Cong. Rec. S8754 (daily ed. Sept. 18, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2964 (Levin, D-Mich.) (aquatic nuisances) would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to reauthorize and improve that Act. 148 Cong. Rec. S8754 (daily ed. Sept. 18, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2968 (Sarbanes, D-Md.) (battlefield acquisition) would amend the American Battlefield Protection Act of 1996 to authorize the Secretary of the Interior to establish a battlefield acquisition grant program. 148 Cong. Rec. S8918 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2971 (Bingaman, D-N.M.) (Transportation Equity Act) would amend the Transportation Equity Act for the 21st Century to provide the Highway Trust Fund additional funding for Indian reservation roads. 148 Cong. Rec. S8918 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Indian Affairs.
  • S. 2972 (Snowe, R-Me.) (Magnuson-Stevens Fishery Conservation and Management Act) would amend the Magnuson-Stevens Fishery Conservation and Management Act to provide for a cooperative research and management program. 148 Cong. Rec. S8918 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2974 (Graham, D-Fla.) (Native American lands) would provide that land which is owned by the Seminole Tribe of Florida but which is not held in trust by the United States for the Tribe may be mortgaged, leased, or transferred by the Tribe without further approval by the United States. 148 Cong. Rec. S8918 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Indian Affairs.
  • S. 2977 (Bayh, D-Ind.) (water resources) would authorize the Secretary of the Army to assist in the continued development of the Indianapolis Central Waterfront project in Indianapolis, Indiana. 148 Cong. Rec. S8918 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2978 (Bayh, D-Ind.) (flood control) would modify the project for flood control, Little Calumet River, Indiana. 148 Cong. Rec. S8918 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 5376 (Combest, R-Tex.) (wildfires) would enhance the authorities of the Secretary of Agriculture and the Secretary of the Interior to reduce catastrophic wildfire threats to communities and the environment. 148 Cong. Rec. H6250 (daily ed. Sept. 12, 2002). The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 5379 (Nethercutt, R-Wash.) (national forests) would amend the Secure Rural Schools and Community Self-Determination Act of 2000 to clarify the treatment of title III project funds reserved by counties under such Act for purposes of disbursements under chapter 69 of title 31, United States Code. 148 Cong. Rec. H6250 (daily ed. Sept. 12, 2002). The bill was referred to the Committees on Agriculture, and Resources.
  • H.R. 5395 (Ehlers, R-Mich.) (invasive species) would establish marine and freshwater research, development, and demonstration programs to support efforts to prevent, control, and eradicate invasive species, as well as to educate citizens and stakeholders and restore ecosystems. 148 Cong. Rec. H6373 (daily ed. Sept. 18, 2002). The bill was referred to the Committees on Science, and Transportation and Infrastructure, Resources, and House Administration.
  • H.R. 5396 (Gilchrest, R-Md.) (aquatic nuisances) would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to reauthorize and improve that Act. 148 Cong. Rec. H6373 (daily ed. Sept. 18, 2002). The bill was referred to the Committees on Transportation and Infrastructure, and Resources.
  • H.R. 5399 (Capps, D-Cal.) (water resources) would authorize the Secretary of the Interior to convey certain water distribution systems of the Cachuma Project, California, to the Carpinteria Valley Water District and the Montecito Water District. 148 Cong. Rec. H6373 (daily ed. Sept. 18, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5401 (Hill, D-Ind.) (national trails) would amend the National Trails System Act to extend the Lewis and Clark National Historic Trail. 148 Cong. Rec. H6373 (daily ed. Sept. 18, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5405 (Sherwood, R-Pa.) (ecosystem restoration) would authorize the Secretary of the Army to carry out a program for ecosystem restoration in Appalachia and the Northeast Region. 148 Cong. Rec. H6373 (daily ed. Sept. 18, 2002). The bill was referred to the Committees on Transportation and Infrastructure, and Resources.
  • H.R. 5409 (Issa, R-Cal.) (Cleveland National Forest) would provide an environmentally sound process for the expeditious consideration and approval of a high-voltage electricity transmission line right-of-way through the Trabuco Ranger District of the Cleveland National Forest in California and adjacent lands under the jurisdiction of the Bureau of Land Management and the Forest Service. 148 Cong. Rec. H6417 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5417 (McCollum, D-Minn.) (national trails) would amend the National Trails System Act to designate the route of the Mississippi River from its headwaters in Minnesota to the Gulf of Mexico for study for potential addition to the National Trails System as a national scenic trail, national historic trail, or both. 148 Cong. Rec. H6417 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5425 (Tiahrt, R-Kan.) (water resources) would authorize the Secretary of the Interior to participate in the construction and maintenance of facilities in Wichita, Kansas, to recharge the Equus Beds Aquifer. 148 Cong. Rec. H6417 (daily ed. Sept. 19, 2002). The bill was referred to the Committee on Resources.

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved. 

IN THE STATES

To see archived versions of State UPDATE, please go to the State UPDATE section of the UPDATE archive.

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

GENERAL:

  • An article published in New Scientist says that desert areas in Burkina Faso and across the southern Sahara are retreating, with significant increases in vegetation in the region. See http://www.newscientist.com/news/news.jsp?id=ns99992811
  • The seventh annual meeting of parties to the Convention on the Conservation of Migratory Species of Wild Animals was held in Bonn. British Prince Charles gave a speech concerning the albatross, urging ratification of the Agreement on the Conservation of Albatrosses and Petrels. Only Australia and New Zealand have ratified to date. Mongolia proposed that the Bactrian camel be added to the migratory animal convention's list of protected species. Only about 1,000 are left. The whale shark, the world's largest fish, and the Saiga antelope, the Mongolian gazelle, and 19 bird species were also discussed.
  • The hole in the ozone layer over Antarctica is likely to close by 2050 due to decreased atmospheric chlorine levels, according to scientists with the Commonwealth Scientific and Industrial Research Organization. See http://www.smh.com.au/articles/2002/09/16/1032054763580.html
  • The Earth Policy Institute issued a report which claims that, worldwide, more people die from air pollution than from automobile accidents. See http://www.earth-policy.org/Updates/Update17.htm
  • A United Nations Environment Program-World Meteorological Organization expert panel issued an executive summary of a forthcoming report which reached the same conclusion. See http://www.unep.org/Documents/Default.asp?DocumentID=264&ArticleID=3130
  • Former World Bank environment chief Robert Goodland issued a report, commissioned by several groups, that criticized a proposed oil pipeline project in Ecuador. See http://www.amazonwatch.org/megaprojects/ocp_asses_report_0209.pdf
  • Lebanon asked the United Nations to mediate a dispute with Israel over Lebanon's plan to pump water from rivers in the border region. Israel said it would welcome mediation. See http://www.jpost.com/servlet/Satellite?pagename=JPost/A/JPArticle/ShowFull&cid=1031666184372
  • The United Nations Food and Agriculture Organization (FAO) raised its estimate of the amount
    of toxic obsolete pesticides in Africa by more than 100%. The FAO, which had estimated the amount at 50,000 metric tons, now says the number is at about 120,000 metric tons.

CLIMATE CHANGE:

  • Australian Environment Minister David Kemp said Australia would ratify the Kyoto Protocol only if the U.S. does. Kemp's statement was in contrast to a more conciliatory position recently taken by Prime Minister John Howard. "Australia's position is that it has to be a global approach," Kemp said. "It has to be one that involves developing countries, it has to be one in which the United States can find it can take part. If we don't do that we will have the vast bulk of emissions outside of any regime and we will not satisfactorily address the issue of global warming." Kemp said that recent modeling by the Australian Greenhouse Office showed that the country's gross national product would fall 0.37% by 2020 if it ratified the Protocol. Kemp accused ratification supporters of taking the report out of context. "There has been an outrageous manipulation of the data today and I want to completely refute the suggestion that anything in this data shows other than that Australia's long-term interests are not ratifying the protocol," he said. See http://www.abc.net.au/news/politics/2002/09/item20020916195625_1.htm
  • New South Wales Premier Bob Carr disagreed with Kemp, calling any economic loss negligible and
    pointing out that Australia could lose significant investment if it failed to ratify the agreement. "We can afford it, but it's going to cost us not to be in it, we'll lose investment in new clean, green industries in carbon sink plantations," he said. Victoria, Tasmania and South Australia also support ratification, according to their premiers. Carr said New South Wales would take its own steps if necessary. See http://news.com.au/common/story_page/0,4057,5105630%255E421,00.html
  • The U.N. Framework Convention on Climate Change held a developing-country capacity-building workshop in Dhaka, Bangladesh.
  • The Bangkok Post reported that Thailand's Forestry Department and the Office of Environmental Policy and Planning are split over the decision to reject the Protocol's Clean Development Mechanism.
  • Confusion continued in Canada regarding ratification. The latest installment was a statement from an unknown source in Prime Minister Jean Chrétien's office that "the Prime Minister's always said he would respect the obligations, and the issue is trying to find the implementation plan that would respect those obligations." Environment Minister David Anderson and Natural Resources Minister Herb Dhaliwal have seemingly backed off Chrétien's September 2 statement that Canada will ratify by year-end. Premier Gary Doer of Manitoba spoke out again in favor of ratification, leaving Premier Ralph Klein of Alberta and Premier Bernard Lord of New Brunswick as the major opponents. Chrétien voiced support for ratification in a Liberal party fundraising speech in Calgary.
  • Russian Foreign Minister Igor Ivanov, in a meeting with Japanese Foreign Minister Yoriko Kawaguchi, confirmed that Russia intends to ratify the Protocol. The European Union indicated it would give Russia 2 million euros under the TACIS project (Technical Assistance for the Commonwealth of Independent States) for institutional support of the Protocol.

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved. 

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