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Weekly Update Volume 36, Issue 35

12/11/2006

LITIGATION

NEPA, MOOTNESS:

The Ninth Circuit held that BLM's EA for a logging project in Oregon violated NEPA and that the lower court erred in dismissing the case as moot. Although the harvested trees cannot be restored, harm to old growth species may yet be remedied by any number of mitigation strategies. Hence, an appropriate EA can yield effective postharvest relief and the case is not moot. In addition, BLM's failure to take the requisite "hard look" in this case has present consequences. The EA failed to disclose and consider quantified and detailed information regarding the cumulative impact of the logging project combined with past, present, and reasonably foreseeable logging projects, and it was tiered to other documents that did not contain the requisite site-specific information about cumulative effects. On remand, the district court must enjoin the remainder of the project until BLM provides a revised EA, including the required hard look at cumulative impacts of the logging already completed on contiguous habitat areas or neighboring habitat areas to be impacted by contemplated future sales. Oregon Natural Resources Council v. United States Bureau of Land Management, No. 05-35245, 36 ELR 20244 (9th Cir. Dec. 4, 2006) (16 pp.).

NUCLEAR POWER, PERMIT PROCEEDINGS:

The Seventh Circuit upheld the Atomic Safety Licensing Board's dismissal of environmental groups' intervention in early site permit proceedings for new nuclear power facilities in Clinton, Illinois. The groups contended, among other things, that the applicant failed to adequately consider energy efficiency or combinations of wind or solar power with fossil-fueled plants. But it was reasonable for the Board to conclude that NEPA did not require the consideration of energy efficiency alternatives. Likewise, it was reasonable for the Board to delay the need-for-power analysis until the combined license application takes place. In addition, because the applicant is a private company engaged in generating energy for the wholesale market, the Board's adoption of baseload energy generation as the purpose behind the permit was not arbitrary or capricious. Last, the Board satisfied NEPA's procedural requirements and rendered a decision that thoughtfully considered all reasonable alternatives. Environmental Law & Policy Center v. United States Nuclear Regulatory Comm'n, No. 06-1442, 36 ELR 20239 (7th Cir. Dec. 5, 2006) (15 pp.).

CAA, GREENHOUSE GASES, RIPENESS:

A district court denied Vermont's motion to dismiss automobile manufacturers' claims that the state's greenhouse gas regulations are either preempted by or violate the CAA and the Energy Policy and Conservation Act. Vermont's regulations are identical to California's standards, which have yet to receive EPA approval. Because EPA has not yet granted California's waiver application, Vermont argued that the manufacturers' suits for declaratory and injunctive relief are not yet ripe for judicial action. But the manufacturer's challenges to the regulations are neither abstract nor hypothetical. They have alleged current injury that is not contingent upon future events, as well as the threat of future injury should EPA grant the waiver from preemption. While the issue of whether EPA grants the waiver may remain unanswered for months, if not years, there is no question that the preemption and constitutional challenges to Vermont's greenhouse gas regulations are as concrete and fit for decision today as they would be if and when the regulations are enforced. Green Mountain Chrysler Plymouth Dodge Jeep v. Dalmasse, Nos. 2:05-CV-302, -304, 36 ELR 20243 (D. Vt. Nov. 30, 2006) (Sessions, C.J.) (7 pp.).

ESA, CONSULTATION REQUIREMENTS:

A district court dismissed an environmental group's ESA claims against the Administrator of EPA and the Director of the Oregon Department of Environmental Quality for failing to initiate and complete formal consultation with the FWS in connection with the state's issuance of an NPDES permit to the Klamath Irrigation District. The groups successfully established standing. However, the group's ESA claim against the director of the state agency was dismissed because the state agency is not a federal agency. The group failed to present any cases in which courts have found that a state would be required to comply with federal ESA consultation requirements on grounds that the state program was "federalized" by virtue of receiving state funding, and the court declined to create new law on this issue. And the EPA Administrator was not required to comply with the ESA consultation requirements in this case as it was the state of Oregon, not EPA, that issued the permit. Oregon Natural Resources Council v. Hallock, No. 02-1650-CO, 36 ELR 20242 (D. Or. Nov. 30, 2006) (Cooney, M.J.) (5 pp.).

PROPERTY LAW, ATTORNEYS FEES:

A California appellate court upheld the award of attorneys fees in favor of a county in a case involving a state agency's proposal to convert agricultural land into wildlife habitat. Although the action was ultimately dismissed, the county's action resulted in the modification of a conservation easement to permit grazing on the property at issue. Hence, the county was a successful party. In addition, the county's action enforced an important right affecting the public interest, conferred a significant benefit on a large group of people, and was necessary. The award of attorneys fees was therefore proper. County of Colusa v. California Wildlife Conservation Board, No. C051270, 36 ELR 20240 (Cal. App. 3d Dist. Oct. 19, 2006) (34 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, RECORD OF PROCEEDINGS:

A California appellate court reversed an award of costs that a lower court made to an irrigation district after denying farmers' petition for a writ of mandate to enforce the California Environmental Quality Act with respect to a proposal to construct high-voltage electricity transmission lines across the farmers' properties. The lower court awarded the irrigation district $33,422.24 for preparing a 4,107-page record of proceedings. But the record contains documents that were created after the project was approved. These post-approval documents are not properly part of the record; therefore, the time spent preparing them was not a necessary and reasonable cost. In addition, the minimal factual information submitted by the district was insufficient to justify the unusually high per page cost for preparing the record. Lastly, the information submitted did not allow for separation of the time the district and its consultants reasonably spent assembling, organizing, and indexing documents reflecting the actual proceedings from the time they spent furthering their own interests. Wagner Farms, Inc. v. Modesto Irrigation District, No. F049966, 36 ELR 20241 (Cal. App. 5th Dist. Dec. 6, 2006) (20 pp.).

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

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

AIR:

  • EPA amended NESHAPs for industrial, commercial, and institutional boilers and process heaters. 71 FR 70651 (12/6/06).
  • SIP Approvals: Delaware (preconstruction air quality permits) 71 FR 70883 (12/7/06). Missouri (particulate matter with a diameter of 10 microns or less (PM10) emissions) 71 FR 70312 (12/4/06); (construction permit exemptions rule) 71 FR 70315 (12/4/06); (operating permits program updates) 71 FR 70468 (12/5/06). South Carolina (definitions and general requirements) 71 FR 70880 (12/7/06).
  • SIP Proposals: Delaware (preconstruction air quality permits; see above for direct final rule) 71 FR 70914 (12/7/06). Michigan (eight-hour ozone NAAQS) 71 FR 70915 (12/7/06). Missouri (PM10 emissions; see above for direct final rule) 71 FR 70339 (12/4/06); (construction permit exemptions rule; see above for direct final rule) 71 FR 70338 (12/4/06); (operating permits program updates; see above for direct final rule) 71 FR 70476 (12/5/06). Ohio (volatile organic compound emission control measures) 71 FR 70699 (12/6/06). South Carolina (definitions and general requirements; see above for direct final rule) 71 FR 70914 (12/7/06).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a settlement under CERCLA for reimbursement of past response costs incurred at the Constitution Road Drum Superfund site in Atlanta, Georgia. 71 FR 71166 (12/8/06).
  • EPA entered into a settlement under CERCLA for reimbursement of past response costs incurred at the Jehl Cooperage Superfund site in Memphis, Tennessee. 71 FR 71166 (12/8/06).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Pittsburgh Metal and Equipment Superfund site in Hudson County, New Jersey, that requires the settling parties to pay a total of approximately $59,500.00 in reimbursement of response costs incurred at the site. 71 FR 71167 (12/8/06).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Marsh Valve Superfund site in Dunkirk, New York, that requires the settling party to pay $2,540,000 in response costs to the hazardous substance Superfund. 71 FR 70764 (12/6/06).

TOXIC SUBSTANCES:

  • EPA amended the Testing of Certain High Production Volume Chemicals test rule promulgated under TSCA §4. 71 FR 71058 (12/8/06).

WILDLIFE:

  • FWS announced a 90-day finding on a petition to list the distinct vertebrate population segment of the northern water snake in the upper tidal Potomac River as endangered under the ESA; the agency determined that listing is not warranted at this time. 71 FR 70715 (12/6/06).
  • FWS announced a 12-month finding on a petition to list the cerulean warbler as threatened under the ESA and to designate critical habitat for the species; the agency determined that the petitioned actions are not warranted at this time. 71 FR 70717 (12/6/06).
  • FWS announced a 90-day finding on a petition to remove the Sacramento Mountains thistle from the list of threatened and endangered plants; the agency determined that delisting is not warranted at this time but that it will initiate a five-year review of the species to consider information that has become available since it listed the species as threatened on June 16, 1987 (52 FR 22933). 71 FR 70479 (12/5/06).
  • FWS announced a 90-day finding on a petition to list the tricolored blackbird as threatened or endangered under the ESA; the agency determined that listing is not warranted at this time. 71 FR 70483 (12/5/06).
  • FWS announced the availability of a final comprehensive conservation plan and FONSI for the Okefenokee National Wildlife Refuge in Florida. 71 FR 70421 (12/4/06).
  • NOAA announced a 15-day extension of temporary restrictions that apply to lobster trap and anchored gillnet fishermen in an area east of Portland, Maine; the purpose of this action is to provide immediate protection to an aggregation of Northern right whales. 71 FR 70319 (12/4/06).
  • NOAA announced a 15-day extension of temporary restrictions that apply to lobster trap and anchored gillnet fishermen in an area south of Portland, Maine; the purpose of this action is to provide immediate protection to an aggregation of Northern right whales. 71 FR 70321 (12/4/06).

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Note: Citations below are to the Congressional Record (Cong. Rec.).

PUBLIC LAWS:

  • S. 101 (land conveyance), which conveys to the town of Frannie, Wyoming, certain land withdrawn by the Commissioner of Reclamation, was signed by President Bush on Dec. 1, 2006. Pub. L. No. 109-380, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • S. 435 (wild and scenic rivers), which amends the Wild and Scenic Rivers Act to designate a segment of the Farmington River and Salmon Brook in the state of Connecticut for study for potential addition to the National Wild and Scenic Rivers System, was signed by President Bush on Nov. 27, 2006. Pub. L. No. 109-370, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • S. 819 (Pactola Dam and Reservoir), which authorizes the Secretary of the Interior to reallocate costs of the Pactola Dam and Reservoir, South Dakota, to reflect increased demands for municipal, industrial, and fish and wildlife purposes, was signed by President Bush on Nov. 27, 2006. Pub. L. No. 109-371, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • S. 1131 (land exchange), which authorizes the exchange of certain federal land within the state of Idaho, was signed by President Bush on Nov. 27, 2006. Pub. L. No. 109-372, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • S. 2464 (Native Americans), which revises a provision relating to a repayment obligation of the Fort McDowell Yavapai Nation under the Fort McDowell Indian Community Water Rights Settlement Act of 1990, was signed by President Bush on Nov. 27, 2006. Pub. L. No. 109-373, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • S. 4001 (wilderness areas), which designates certain land in New England as wilderness for inclusion in the National Preservation system and certain land as a National Recreation Area, was signed by President Bush on Dec. 1, 2006. Pub. L. No. 109-382, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • H.R. 409 (land exchange), which provides for the exchange of land within the Sierra National Forest, California, was signed by President Bush on December 1, 2006. Pub. L. No. 109-375, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • H.R. 1129 (land exchange), which authorizes the exchange of certain land in the state of Colorado, was signed by President Bush on Dec. 1, 2006. Pub. L. No. 109-377, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • H.R. 3085 (National Trails System Act), which amends the National Trails System Act to update the feasibility and suitability study originally prepared for the Trail of Tears National Historic Trail and provide for the inclusion of new trail segments, land components, and campgrounds associated with that trail, was signed by President Bush on Dec. 1, 2006. Pub. L. No. 109-378, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).
  • H.R. 5842 (Native Americans), which compromises and settles all claims in the case of Pueblo of Isleta v. United States, to restore, improve, and develop the valuable on-reservation land and natural resources of the Pueblo, was signed by President Bush on Dec. 1, 2006. Pub. L. No. 109-379, 152 Cong. Rec. D1127 (daily ed. Dec. 5, 2006).

CHAMBER ACTION:

  • S. 214 (United States-Mexico Transboundary Aquifer Assessment Act), which would authorize the Secretary of the Interior to cooperate with the states on the border with Mexico and other appropriate entities in conducting a hydrogeologic characterization, mapping, and modeling program for priority transboundary aquifers, was passed by the House. 152 Cong. Rec. H8853 (daily ed. Dec. 6, 2006).
  • S. 895 (Rural Water Supply Act of 2005), which would direct the Secretary of the Interior to establish a rural water supply program in the reclamation states to provide a clean, safe affordable, and reliable water supply to rural residents, was passed by the House. 152 Cong. Rec. H8846 (daily ed. Dec. 6, 2006).
  • S. 997 (land conveyance), which would direct the Secretary of Agriculture to convey certain land in the Beaverhead-Deerlodge National Forest, Montana, to Jefferson County, Montana, for use as a cemetery, was passed by the Senate. 152 Cong. Rec. S11537 (daily ed. Dec. 7, 2006).
  • S. 1219 (water rights), which would authorize certain tribes in the state of Montana to enter into a lease or other temporary conveyance of water rights to meet the water needs of the Dry Prairie Rural Water Association, Inc., was passed by the house, clearing the measure for the President; 152 Cong. Rec. H8695 (daily ed. Dec. 5, 2006).
  • S. 1529 (land conveyance), which would provide for the conveyance of certain federal land in the city of Yuma, Arizona, was passed by the Senate.152 Cong. Rec. S11537 (daily ed. Dec. 7, 2006).
  • S. 1535 (Cheyenne River Sioux Tribe Equitable Compensation Amendments Act), which would amend the Cheyenne River Sioux Tribe Equitable Compensation Act to provide compensation to members of the Cheyenne River Sioux Tribe for damage resulting from the Oahe Dam and Reservoir Project, was passed by the Senate. 152 Cong. Rec. S11546 (daily ed. Dec. 7, 2006).
  • S. 1548 (land conveyance), which would provide for the conveyance of certain forest Service land to the city of Coffman Cove, Alaska, was passed by the Senate. 152 Cong. Rec. S11539 (daily ed. Dec. 7, 2006).
  • S. 2003 (watershed restoration), which would make permanent the authorization for watershed restoration and enhancement agreements, was passed by the Senate. 152 Cong. Rec. S11539 (daily ed. Dec. 7, 2006).
  • S. 2054 (Vermont water resources), which would direct the Secretary of the Interior to conduct a study of water resources in the state of Vermont, was passed by the Senate. 152 Cong. Rec. S11539 (daily ed. Dec. 7, 2006).
  • S. 2150 (land conveyance), which would direct the Secretary of the Interior to convey certain BLM land to the City of Eugene, Oregon, was passed by the Senate. 152 Cong. Rec. S11539 (daily ed. Dec. 7, 2006).
  • S. 2403 (national parks), which would modify the boundaries of Grand Teton National Park to include certain land within the Grand Teton Park Subdivision, was passed by the Senate. 152 Cong. Rec. S11540 (daily ed. Dec. 7, 2006).
  • H.R. 394 (national parks), which would direct the Secretary of the Interior to conduct a boundary study to evaluate the significance of the Colonel James Barrett Farm in the Commonwealth of Massachusetts and the suitability and feasibility of its inclusion in the National Park System as part of the Minute Man National Historical Park, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11540 (daily ed. Dec. 7, 2006).
  • H.R. 395 (Lowell National Historical Park Boundary Adjustment Act), which would adjust the boundary of Lowell National Historical Park, was passed by the House. 152 Cong. Rec. H8697 (daily ed. Dec. 5, 2006).
  • H.R. 482 (Pine Springs Land Exchange Act), which would provide for a land exchange involving federal lands in the Lincoln National Forest in the state of New Mexico, was passed by the Senate. 152 Cong. Rec. S11541 (daily ed. Dec. 7, 2006).
  • H.R. 854 (Native Americans), which would provide for certain lands to be held in trust for the Utu Utu Gwaitu Paiute Tribe, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11381 (daily ed. Dec. 6, 2006).
  • H.R. 1674 (U.S. Tsunami Warning and Education Act), which would authorize and strengthen the tsunami detection, forecast, warning, and mitigation program of NOAA, to be carried out by the National Weather Service, was passed by the House. 152 Cong. Rec. H8788 (daily ed. Dec. 6, 2006).
  • H.R. 4588 (Water Resources Research Act), which would reauthorize grants for and require applied water supply research regarding the water resources research and technology institutes established under the Water Resources Research Act of 1984, was passed by the Senate. 152 Cong. Rec. S11381 (daily ed. Dec. 6, 2006).
  • H.R. 5132 (River Raisin National Battlefield Study Act), which would direct the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of including in the National Park System certain sites in Monroe County, Michigan, relating to the Battles of the River Raisin during the War of 1812, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11542 (daily ed. Dec. 7, 2006).
  • H.R. 5110 (More Water and More Energy Act of 2006), which would facilitate the use for irrigation and other purposes of water produced in connection with development of energy resources, was passed by the House. 152 Cong. Rec. H8696 (daily ed. Dec. 5, 2006).
  • H.R. 5466 (Captain John Smith Chesapeake National Historic Trail Designation Act), which would amend the National Trails System Act to designate the Captain John Smith Chesapeake National Historic Trail, was passed by the House, 152 Cong. Rec. H8694 (daily ed. Dec. 5, 2006), and the Senate, clearing the measure for the President. 152 Cong. Rec. S11542 (daily ed. Dec. 7, 2006).
  • H.R. 5946 (Stevens-Inouye International Fisheries Monitoring and Compliance Legacy Act), which would amend the Magnuson-Stevens Fishery Conservation and Management Act to authorize activities to promote improved monitoring and compliance for high seas fisheries, or fisheries governed by international fishery management agreements, was passed by the Senate. 152 Cong. Rec. S11535 (daily ed. Dec. 7, 2006).
  • H.R. 5782 (Pipeline Safety Improvement Act), which would amend title 49, U.S. Code, to provide for enhanced safety and environmental protection in pipeline transportation, to provide for enhanced reliability in the transportation of the Nation's energy products by pipeline, was passed by the House, 152 Cong. Rec. H8834 (daily ed. Dec. 6, 2006), and the Senate, clearing the measure for the President. 152 Cong. Rec. S11535 (daily ed. Dec. 7, 2006).

COMMITTEE ACTION:

  • S. 2803 (mine safety) was reported by the Committee on Health, Education, Labor, and Pensions. S. Rep. No. 109-365, 152 Cong. Rec. S11324 (daily ed. Dec. 6, 2006). The bill would amend the Federal Mine Safety and Health Act of 1977 to improve the safety of mines and mining.
  • H.R. 4591 (pesticides) was reported by the Committee on Energy and Commerce. H. Rep. No. 109-714, 152 Cong. Rec. H8742 (daily ed. Dec. 5, 2006). The bill would implement the Stockholm Convention on Persistent Organic Pollutants, the Protocol on Persistent Organic Pollutants to the Convention on Long-Range Transboundary Air Pollution, and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
  • H.R. 5782 (pipelines) was reported by the Committee on Transportation and Infrastructure and the Committee on Energy and Commerce. H. Rep. No. 109-717, pts. 1 and 2, 152 Cong. Rec. H8742 (daily ed. Dec. 5, 2006). The bill would amend title 49, U.S. Code, to provide for enhanced safety and environmental protection in pipeline transportation and to provide for enhanced reliability in the transportation of the Nation's energy products by pipeline.

BILLS INTRODUCED:

  • S. 4076 (Thomas, R-Wyo.) (energy) would amend the Energy Policy Act of 2005 to provide an alternate sulfur dioxide removal measurement for certain coal gasification project goals. 152 Cong. Rec. S11194 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 4079 (Hatch, R-Utah) (dams) would amend the Reclamation Safety of Dams Act of 1978 to authorize improvements for the security of dams and other facilities and for other purposes. 152 Cong. Rec. S11194 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 4084 (Feinstein, D-Cal.) (San Joaquin River) would authorize the implementation of the San Joaquin River Restoration Settlement. 152 Cong. Rec. S11325 (daily ed. Dec. 6, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 4096 (Voinovich, R-Ohio) (invasive species) would require the Secretary of the Army to operate and maintain as a system the Chicago sanitary and ship canal dispersal barriers to prevent the spread of aquatic invasive species into the Great Lakes, and to determine the feasibility of a dispersal barrier project at the Lake Champlain Canal. 152 Cong. Rec. S11325 (daily ed. Dec. 6, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 4101 (Inhofe, R-Okla.) (FWPCA) would amend FWPCA to provide more effective permitting and enforcement mechanisms for stormwater discharges associated with residential construction activity. 152 Cong. Rec. S11499 (daily ed. Dec. 7, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 4104 (Smith, R-Or.) (renewable resources) would amend the Internal Revenue Code of 1986 to provide credit rate parity for all renewable resources under the electricity production credit. 152 Cong. Rec. S11499 (daily ed. Dec. 7, 2006). The bill was referred to the Committee on Finance.
  • S. 4105 (Landrieu, D-La.) (hurricanes) would authorize a project for hurricane and storm damage reduction from Morganza to the Gulf of Mexico, Louisiana. 152 Cong. Rec. S11499 (daily ed. Dec. 7, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 4106 (Schumer, D-N.Y.) (energy efficiency) would provide for research into the development of energy-efficient technologies and to foster the introduction of energy-efficient technologies into the marketplace, with the goal of reducing United States oil imports. 152 Cong. Rec. S11499 (daily ed. Dec. 7, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 4108 (Bingaman, D-N.M.) (Colorado River) would amend the Colorado River Storage Project Act and Public Law 87-483 to authorize the construction and rehabilitation of water infrastructure in Northwestern New Mexico, to authorize the use of the reclamation fund to fund the Reclamation Water Settlements Fund, to authorize the conveyance of certain Reclamation land and infrastructure, to authorize the Commissioner of Reclamation to provide for the delivery of water, and for other purposes. 152 Cong. Rec. S11499 (daily ed. Dec. 7, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 6354 (Burgess, R-Tex.) (biodiesel) would amend the Internal Revenue Code of 1986 to increase the credit for biodiesel used as a fuel. 152 Cong. Rec. H8743 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Ways and Means.
  • H.R. 6356 (Costello, D-Ill.) (ethanol) would provide for the research, development, and demonstration of coal gasification technology as an energy source in ethanol production. 152 Cong. Rec. H8743 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Science.
  • H.R. 6361 (Doolittle, R-Cal.) (national parks) would authorize the Secretary of the Interior to conduct a special resources study of the Tule Lake Segregation Center in Modoc County, California, to determine the suitability and feasibility of establishing a unit of the National Park System. 152 Cong. Rec. H8743 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6362 (Fortenberry, R-Neb.) (CAA) would amend the CAA to exclude agricultural particulates from the national ambient air quality standards for particulate matter, and for other purposes. 152 Cong. Rec. H8743 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6365 (Israel, D-N.Y.) (electricity; hurricanes) would authorize the Director of FEMA to make grants to distributors of electricity for the purpose of upgrading their electrical distribution systems to provide protection against hurricanes. 152 Cong. Rec. H8743 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 6368 (Maloney, D-N.Y.) (oil and gas leases) would provide for a study by the National Academy of Engineering regarding improving the accuracy of collection of royalties on production of oil, condensate, and natural gas under leases of federal lands and Indian lands, and for other purposes. 152 Cong. Rec. H8743 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6373 (Renzi, R-Ariz.) (land exchange and conveyance) would authorize and direct the exchange and conveyance of certain National Forest land and other land in southeast Arizona. 152 Cong. Rec. H8744 (daily ed. Dec. 5, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6377 (Radanovich, R-Cal.) (San Joaquin River) would authorize the implementation of the San Joaquin River Restoration Settlement. 152 Cong. Rec. H8888 (daily ed. Dec. 6, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6396 (Jefferson, D-La.) (environmental justice) would ensure environmental justice in the areas affected by Hurricanes Katrina and Rita. 152 Cong. Rec. H8889 (daily ed. Dec. 6, 2006). The bill was referred to the Committee on Energy and Commerce and the Committee on Resources.
  • H.R. 6409 (Simpson, R-Idaho) (National Forest System) would promote the economic development and recreational use of National Forest System lands and other public lands in central Idaho, designate the Boulder-White Cloud Management Area to ensure the continued management of certain National Forest System and BLM lands for recreational and grazing use and conservation and resource protection, and add certain National Forest System and BLM lands in central Idaho to the National Wilderness Preservation System. 152 Cong. Rec. H8978 (daily ed. Dec. 7, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6413 (Herger, R-Cal.) (Sacramento River) would establish the Sacramento River National Recreation Area consisting of certain public lands administered by BLM in Tehama and Shasta Counties, California. 152 Cong. Rec. H8979 (daily ed. Dec. 7, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6417 (Meehan, D-Mass.) (tax subsidies) would repeal tax subsidies enacted by the Energy Policy Act of 2005 for oil and gas and certain other oil and gas subsidies in the Internal Revenue Code of 1986, and establish a greenhouse gas intensity reduction investment tax credit. 152 Cong. Rec. H8979 (daily ed. Dec. 7, 2006). The bill was referred to the Committee on Ways and Means.
  • H. Con. Res. 498 (Young, R-Alaska) (NOAA) would recognize 200 years of research, service to the people of the United States, and stewardship of the marine environment by NOAA and its predecessor agencies, and for other purposes. 152 Cong. Rec. H8744 (daily ed. Dec. 5, 2006). The resolution was referred to the Committee on Resources and the Committee on Science.

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. For a cumulative listing of materials reported in 2006, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to 2006, visit the ELR Archives.

The states below have updates this week:

Arkansas Missouri Pennsylvania Delaware New York Texas Indiana North Carolina Wisconsin Iowa Oklahoma   Maine Oregon  

ARKANSAS

Water:

  • The Arkansas Pollution Control and Ecology Commission will hold a public hearing to receive comments on a third-party proposal by Lion Oil Company to change the Arkansas Water Quality Standards (PC&EC Regulation No. 2) for two streams affected by Lion’s wastewater discharge. The hearing will be held December 19, 2006. See http://www.adeq.state.ar.us/poa/pa/pn_reg_notice.asp

DELAWARE

Air:

Fisheries:

Water:

INDIANA

Air:

  • The Air Pollution Control Board held a public hearing on amendments to the applicability of the volatile organic compounds miscellaneous operations rule at 326 IAC 8-5-1 and new sections for foundry core making processes and fuel grade ethanol production operations at 326 IAC 8-5-6 and 326 IAC 8-5-7. The hearing will be was held December 6, 2006. See http://www.in.gov/legislative/register/20061004-IR-326050197PHA.xml.pdf

IOWA

Air:

  • The Environmental Protection Commission announced its intent to amend Chapter 21, Compliance, Chapter 22, Controlling Pollution, Chapter 23, Emission Standards for Contaminants, Chapter 25, Measurement of Emissions, and Chapter 34, Provisions for Air Quality Emissions Trading Programs, of the Iowa Administrative Code. The purpose of the proposed amendments is to adopt into the state air quality rules several federal regulations that U.S. EPA recently finalized.  See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB061206.htm

Hazardous and Solid Waste:

  • The Environmental Protection Commission will hold a series of public hearings on proposed amendments to Chapter 101, Solid Waste Comprehensive Planning Requirements, Chapter 102, Permits, and Chapter 104, Sanitary Disposal Projects with Processing Facilities; to rescind Chapter 111, Financial Assurance Requirements for Municipal Solid Waste Landfills; and to rescind Chapter 113 and adopt new Chapter 113, Sanitary Landfills for Municipal Solid Waste: Groundwater Protection Systems for the Disposal of Nonhazardous Wastes, of the Iowa Administrative Code. The hearings will be held January 22, 24, and 26, 2007. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB061206.htm

Water:

  • The Environmental Protection Commission announced its intent to amend Chapter 61, Water Quality Standards, of the Iowa Administrative Code. The proposed amendment will provide water quality certification pursuant to CWA §401 (33 U.S.C. §1341) for 49 nationwide permits and 3 regional permits issued by the U.S. Army Corps of Engineers. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB061206.htm

MAINE

Fisheries:

  • The Department of Marine Resources is soliciting public comment on proposed regulations that would adopt, through the regular rulemaking process, changes that become effective with the adoption of the emergency rules establishing the 2006-2007 shrimp season. The proposed season would take place from December 1, 2006, through April 30, 2007. The season for the harvest of shrimp by trawl and by trap would be the same. Comments are due December 22, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/112206.htm
  • The Department of Marine Resources has adopted emergency regulations to begin the process of establishing the 2006-2007 Northern Shrimp season in compliance with the Atlantic States Marine Fisheries Commission Northern Shrimp Fishery Management Plan set November 6, 2006. These emergency rules became effective November 22, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/112206.htm
  • The Department of Marine Resources adopted regulations in Chapter 25.96 based on a referendum response by Zone D members and a recommendation of the Zone D Lobster Management Council members to the Commissioner. These regulations establish two new requirements: apprentices who wish to enter Zone D must complete their apprenticeship in that zone; and sponsors of Zone D apprentices must have held a Class I, II, or III lobster and crab fishing license for at least 5 years. These regulations become effective January 1, 2007. See http://www.maine.gov/sos/cec/rules/notices/2006/120606.htm
  • The Department of Marine Resources has adopted changes to Chapter 305, Natural Resource Protection Act Permit by Rule Standards. These amendments became effective December 5, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/120606.htm

MISSOURI

Air:

  • The Air Conservation Commission will hold a public hearing on proposed amendments to 10 CSR 10-2.390, Kansas City Area Transportation Conformity Requirements, and 10 CSR 10-5.480, St. Louis Area Transportation Conformity Requirements. The hearing will be held February 1, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n23/v31n23a.pdf (pp. 1956 and 1965)

NEW YORK

Fisheries:

NORTH CAROLINA

Wildlife:

  • The Wildlife Resources Commission will hold a series of public hearings on the proposed rules cited as 15A NCAC 10B .0125 and 10H .0110 and .1301-.1302, and proposed amendments to the rules cited as 15A NCAC 10B .0105, .0113, .0116, .0201-.0205, .0209, .0302; 10D .0102 -.0103; 10H .0801; and 10J .0102. Many, but not all, of these rules concern hunting seasons and limitations. The hearings will be held January 8, 10, 11, 16, 17, 18, 23, 24, and 25, 2007. See http://www.ncoah.com/rules/register/Volume21Issue11December12006web.doc (p. 925)

OKLAHOMA

Hazardous and Solid Waste:

Water:

  • The Department of Environmental Quality will hold a series of public hearings on the proposal to amend §§252:606-1-3 and 252:606-1-4 to update rules concerning the adoption of the Phase II rules concerning cooling water intakes for power plants and the date of the incorporation by reference of certain federal regulations from July 1, 2006, to July 1, 2006. The hearings will be held January 9, 2007, and February 23, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-06.htm
  • The Department of Environmental Quality will hold a series of public hearings on the proposal to amend Chapter 611-1-3, General Water Quality, to update rules concerning the date of the incorporation by reference of certain federal regulations. The hearings will be held January 9, 2007, and February 23, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-06.htm
  • The Department of Environmental Quality will hold a series of public hearings on proposed amendments to Chapter 616, Industrial Wastewater Systems, to include above ground storage tanks that contain industrial wastewater, to change the definition of waste class to include industrial sludge, to amend tank system requirements to require above ground tank systems to have secondary containment, and to amend industrial sludge requirements to meet the requirements of state statute concerning sludge management plans and heavy metals. The proposal would also amend permitting and closure requirements for certain Class III impoundments such that if they are designed in accordance to the requirements of new Appendix D and/or closed pursuant to the requirements of new Appendix E, then a Registered Professional Engineer, certified by the state of Oklahoma, is not necessary for said design, construction, or closure. The hearings will be held January 9, 2007, and February 23, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-06.htm
  • The Department of Environmental Quality will hold a series of public hearings on proposed amendments to Chapter 623, Pre Treatment for Central Treatment Trusts, to bring the rules into compliance with federal regulatory requirements, update the incorporation by reference date to July 1, 2006, and make other cleanup language changes. The hearings will be held January 9, 2007, and February 23, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-06.htm
  • The Department of Environmental Quality will hold a series of public hearings on proposed amendments to Chapter 626, Public Water Supply Construction Standards; Chapter 631, Public Water Supply Operation; and Chapter 690, Water Quality Standards Implementation. The hearings will be held January 9, 2007, and February 23, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-06.htm

OREGON

Wildlife:

PENNSYLVANIA

Water:

  •  The Environmental Quality Board is soliciting public comment on proposed amendments to Chapter 109, relating to safe drinking water, and on adding Chapter 110, relating to water resources planning. The proposed rulemaking specifies who is required to register, keep records, and report information regarding withdrawals of water and details the information that is to be recorded and reported to the Department of Environmental Protection. Comments are due January 2, 2007. See http://www.pabulletin.com/secure/data/vol36/36-48/2345.html

TEXAS

Water:

WISCONSIN   Water:

  • The Department of Natural Resources will hold a series of public hearings on the creation of subch. III of ch. NR 328, Wis. Adm. Code, relating to bank erosion control on rivers and streams. The purpose of the proposal is to create additional general permits to streamline the review of applications for erosion control structures. The hearings will be held December 11, 12, 13, and 14, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html.
  • The Department of Natural Resources will hold a series of public hearings on the creation of ch. NR 820, Wis. Adm. Code, relating to annual reporting of groundwater pumping information from high capacity wells, designation of groundwater management areas, environmental review of high capacity well applications for impacts on groundwater protection areas and springs, and evaluation of wells with greater than 95 percent water loss. The hearings will be held December 13, 15, 18, 19, and 20, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html.

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

INDIA PREPARES FOR GLOBAL WARMING

According to the World Bank's lead environmental specialist for South Asia, India is ahead of most developing nations in taking precautions to help adapt to climate change. The building of new infrastructure and the implementation of water management projects are well under way as the country prepares for problems associated with rising sea levels. Experts say that with more unpredictable weather on the way, India's biggest challenge will be access to water in rural areas and the effect of climate change on crop production. See http://www.alertnet.org/thenews/newsdesk/DEL310961.htm

DEMOCRATIC REPUBLIC OF CONGO RESERVE GRANTED MORE FUNDING

A recent agreement between the African Wildlife Foundation and the French Development Agency will designate about $1.025 million (U.S.) for the Lomako Yokola Faunal Reserve in the Democratic Republic of Congo. The funds will support local programs that aim to decrease the hunting of bushmeat along with wildlife and habitat conservation, fauna management, and economic development. See http://www.enn.com/net.html?id=1746

FORMER PRESIDENT CLINTON LAUNCHES MANGROVES FOR THE FUTURE INITIATIVE IN THAILAND

On a recent trip to Phuket, Thailand, former President Clinton launched the World Conservation Union (IUCN)/United Nations Development Programme "Mangroves for the Future" Initiative. The initiative aims to strengthen coastal ecosystems in the countries hit by the December 2004 tsunami. "Building back better must include a commitment to conservation," Clinton stated. "This project will help to ensure that environmental sustainability is part of the recovery process region-wide, and that regional ecosystems will promote both livelihoods and disaster risk reduction." See http://www.iucn.org/en/news/archive/2006/12/4_mangroves_future.htm

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

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