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Weekly Update Volume 30, Issue 21




The D.C. Circuit held that the MBTA prohibits federal agencies from killing migratory birds without a permit from the DOI and, therefore, that the USDA violated MBTA §703 when, without a permit, it killed Canada geese during implementation of its integrated goose management plan. MBTA §703 prohibits anyone from killing any migratory bird without a permit. This includes the federal government even though the MBTA §707(a) criminal penalty provision cannot be enforced against the federal government. Although the term "person" as it is used in MBTA §707(a) does not include the sovereign, MBTA §703 can be enforced against the federal government through a suit against the appropriate federal officer for injunctive relief. In addition, the MBTA implements the International Convention for the Protection of Migratory Birds treaty entered into between the United States and Canada. If the Canadian government slaughtered ducks in Canada, it would be in violation of the treaty. If a federal agency in the United States did the same, it too would violate the treaty. There is no reason to treat the MBTA differently from the treaty since the MBTA was meant to give effect to the treaty. Humane Society of the United States v. Glickman, No. 99-5309 (D.C. Cir. July 18, 2000) (7 pp.). 


The Fifth Circuit held that a neighborhood association's NEPA challenge to the U.S. Army Corps of Engineers' issuance of a permit for the construction of a retail development was moot. The association alleged that the Corps violated NEPA by failing to consider the development's impact on flooding in the area. The association requested injunctive relief staying the permit and requiring the Corps to consider the direct, indirect, and cumulative impacts of the development. The association also sought declaratory relief stating that the Corps was required to consider these impacts before granting the permit. However, even if the court stayed the permit and granted the declaratory relief, the action would have no effect because the construction authorized by the permit has been substantially completed. Further, requested declaratory relief defining the Corps' obligations in evaluating permits for construction on wetlands would amount to an advisory opinion, which federal courts may not render. Such a declaratory judgment does not relate specifically to the case at hand, and granting the requested relief would not affect the rights of the parties in relation to the specific Corps permit issued for the development's construction. In addition, the association's suit does not fall under the exception to the mootness doctrine for issues capable of repetition yet evading review. The association has demonstrated that the same action currently challenged will take place again because there is an expectation of future development that may cause flooding problems. However, the period of time between issuance of a Corps permit and substantial completion of construction will not be too short to allow a challenge to any future permit to be fully litigated. Bayou Liberty Ass'n v. United States Army Corps of Engineers, No. 98-31260 (5th Cir. July 19, 2000) (5 pp.).   


The Fourth Circuit held that environmental cleanup costs incurred by a utility at an unused facility in Richmond, Virginia, constituted permanent improvements to the property that must be capitalized and cannot be deducted as incidental repairs performed as ordinary and necessary business expenses. To distinguish between improvements that constitute deductible repairs and those that must be capitalized, the focus must be not on the amount of value added to the property by the improvements, but on the nature of the improvement. If the improvement permits the property to be utilized in a different way, the improvement is most appropriately considered a capital expenditure. If the property only restores value that existed prior to deterioration or discrete damage, the improvement may be properly treated as a deductible repair expense. Here, the utility identified no deterioration or discrete damage that necessitated repair. Further, the costs of the environmental cleanup may have dwarfed the value of the property prior to cleanup. This disparity belies the contention that the cleanup was a mere incidental repair that did not materially add to the value of the property. In fact, the cleanup did more than create the possibility of a new use for the property; it lifted the property out of an essentially useless condition. Dominion Resources, Inc. v. United States, Nos. 99-1636, -1645 (4th Cir. July 19, 2000) (12 pp.).


The Seventh Circuit affirmed a district court order requiring specific performance of a settlement agreement between a company and an equipment manufacturer for the cleanup of radium 226 on the company's property. The company alleged that the manufacturer's equipment caused the radium contamination. The manufacturer agreed to pay the company $435,000 and deposited another $100,000 into an escrow account that could be used for site cleanup. In exchange, the company agreed to perform all cleanup in full cooperation and to the complete satisfaction of the state department of nuclear safety. Notwithstanding this agreement, the company initiated and completed cleanup without state approval and, in so doing, spent all but $2,000 of the escrow account. The state rejected the company's cleanup, and the manufacturer sued the company requiring the company to submit a cleanup plan to the state. The manufacturer then sued the state as a third-party defendant, but before the third-party claims were resolved, the district court issued the order now in dispute. Although the pending nature of the third-party claim puts appellate jurisdiction in question, the Seventh Circuit has jurisdiction because the district court's order was injunctive in nature, and appeals of injunctions are within appellate jurisdiction. On the merits, the company's appeal is frivolous. The company began cleanup work before seeking state approval, thereby, violating their promise that the state would monitor remediation from beginning to end. Therefore, breach is established and specific performance was an appropriate remedy. In addition, the district court unnecessarily sealed the record below. Union Oil Co. of California v. Leavell, No. 99-3084 (7th Cir. July 18, 2000) (7 pp.).  


The Ninth Circuit affirmed a trial court decision finding several BASE jumpers in the Glen Canyon Recreation Area guilty of air delivery without a permit and disorderly conduct. The National Park Service (NPS) proscribes BASE jumping under its regulations governing aircraft and air delivery. BASE jumping is prohibited by NPS regulation 36 C.F.R. §2.17(a)(3), which bans the delivery of a person by parachute without a permit, and BASE jumping is not permissible under 36 C.F.R. §2.17(a)(1), which allows operation of aircraft over the National Parks. Although technologically sophisticated, the chutes used by BASE jumpers are still parachutes and not powerless flight devices. In fact, the BASE jumpers' own expert testified that the purposes of BASE jumping gear is consistent with that of parachutes. Further, "delivery" under 36 C.F.R. §2.17(a)(3) can include self-delivery. In addition, under the NPS' disorderly conduct regulation, the BASE jumpers recklessly created a risk of harm to the public. United States v. Albers, No. 9910071 (9th Cir. July 17, 2000) (7 pp.). 


A district court held that environmental groups are entitled to an award of attorneys fees under the ESA in connection with their lawsuit against the DOI for failure to timely publish final rules for one endangered butterfly and five endangered plants. After the groups filed their suit but before the court addressed the merits, the DOI published the final rules, and the groups' suit was rendered moot. Nevertheless, the groups are entitled to attorneys fees as prevailing parties. The groups filed suit in order to force the DOI to make and publish final rules for six species, and the DOI subsequently did so. Therefore, the relief sought was of the same general type as the relief actually obtained. Further, because the groups' lawsuit served as a catalyst for the DOI's actions, a causal connection exists between the relief obtained and the groups' suit. Evidence indicates that the DOI expedited the final rule process for at least one of the species at issue. Moreover, the evidence leads to a reasonable inference that the DOI manipulated the process for all six species due to the groups' suit, and the DOI failed to rebut the inference. Additional evidence also indicates that the DOI's ESA listing actions are substantially influenced by litigation. In addition, the groups need not show that they made a substantial contribution to the purposes of the ESA. However, the DOI is granted extra time to negotiate with the groups as to the amount of the attorneys fee award. Extra time will allow the DOI an opportunity to respond to the hourly rates and numbers requested by the groups. Klamath Siskiyou Wildlands Center v. Babbitt, No. CV 99-1044-ST (D. Or. June. 12, 2000) (Stewart, J.) (18 pp.) (Plaintiffs' counsel included Marianne Dugan of Facaros Dugan Rosas Attorneys at Law in Eugene OR). 


A district court held that a NRC regulation's definition of the term "meeting" for purposes of the Sunshine Act neither conflicts with nor undermines the Act. An environmental group argued that the NRC's regulation is fundamentally inconsistent with both the language and legislative history of the Sunshine Act. However, the U.S. Supreme Court held in FCC v. ITT World Communications, Inc., 466 U.S. 463 (1984), that a "meeting" under the Sunshine Act contemplates discussions that effectively predetermine official actions, and such discussions must be sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. This is the definition that the NRC subsequently adopted as its own definition of "meeting," and according to the Supreme Court, this is the definition that Congress intended. Further, ITT is not limited to instances where agency members have not been formally delegated authority to take official action. In addition, the D.C. Circuit is without authority to impose additional procedural requirements sought by the group on non-Sunshine Act discussions. Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, No. 99-1383 (D.C. Cir. July 14, 2000) (11 pp.).


A district court refused to reopen a previous action and dismissed a current action against the federal government in which environmental groups alleged that the U.S. Navy violated NEPA, the ESA, and the MMPA when it conducted SURTASS LFA testing off the coast of Hawaii. SURTASS LFA is a sonar program that the Navy proposed to use to detect enemy submarines, but some claim that SURTASS LFA harms marine animals. The groups failed to establish extraordinary circumstances warranting reopening of the previously dismissed action. The previous action was dismissed as moot because the challenged SURTASS LFA testing had been completed, there were no plans to resume testing, and the permit that provided the Navy with authority to test had expired. In their motion to reopen the action, the groups failed to identify new circumstances that would alter the previous mootness finding. Even if new facts had arisen, the mootness decision would not have come out differently. In fact, there is little credible evidence that the Navy plans to resume SURTASS LFA testing in Hawaii or elsewhere until an EIS for the program is completed. In addition, the groups lacked standing in their present action seeking to enjoin the Navy's SURTASS LFA program due to violations of NEPA, the ESA, and the MMPA. None of the groups claimed injury-in-fact from the alleged procedural violations. The crux of the groups' procedural claims is that they have been harmed by the irreversible and irretrievable commitments of resources that have been made before the issuance of a final EIS for the SURTASS LFA program. However, the groups' allegations of harm are not concrete, particularized, or imminent. In fact, the Navy has yet to take a final action, and in such a case, the groups cannot have suffered an injury-in-fact. Similarly, the groups failed to show a concrete and particularized injury-in-fact as to the substantive allegations that the Navy's SURTASS LFA testing in international waters without permits violated the MMPA and the ESA. Moreover, the groups did not meet the ESA's 60-day notice requirement, and all but two of the groups' claims are not ripe for review because they fail to allege final agency action. Hawaii County Green Party v. Clinton, No. 98-232 ACK (D. Haw. July 10, 2000) (Kay, J.) (70 pp.).

Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved

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Note: Citations below are to the Federal Register.

red bar graphic  AIR:

  • EPA announced its decision to certify equipment under the urban bus retrofit/rebuild program. 65 FR 44047 (7/17/00).
  • EPA proposed NESHAPs for facilities that coat metal coil. 65 FR 44615 (7/18/00).
  • EPA notified the manufacturer of the motor fuel additive methylcyclopentadienyl manganese tricarbonyl (MMT) and other affected registrants of motor fuels and additives containing MMT of the alternative tier 2 health and exposure testing requirements. 65 FR 44775 (7/19/00).
  • EPA rescinded its prior findings that the one-hour ozone NAAQS and the accompanying designations and classifications no longer apply in certain areas.  65 FR 45181 (7/20/00).

red bar graphic  DRINKING WATER:

  • EPA announced that it is seeking comments on proposed additions to the Final Guidelines for the Certification and Recertification of the Operators of Community and Nontransient Noncommunity Public Water Systems65 FR 45057 (7/20/00).

red bar graphic  ENDANGERED SPECIES:

  • FWS proposed to designate critical habitat under the ESA for the Mexican spotted owl. 65 FR 45336 (7/21/00). 


  • EPA announced the availability of human health and ecological risk data and information relating to the hazardous waste identification rule, which would exempt listed hazardous wastes that meet chemical-specific exemption levels from hazardous waste management levels.  65 FR 44491 (7/18/00).
  • EPA entered into a proposed de minimis settlement under CERCLA §122(g) in connection with the Butler Mine Tunnel Superfund site in Pittston Township, Pa. 65 FR 44529 (7/18/00).
  • EPA reissued a no-migration variance for land disposal of hazardous waste to the Exxon Mobil Refining & Supply Company's Billings, Mont., refinery. 65 FR 45052 (7/20/00).
  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Hertel Landfill Superfund site in Clintondale, N.Y. 65 FR 45378 (7/21/00). 

red bar graphic  SMCRA PROGRAM APPROVAL:

red bar graphic  TOXIC SUBSTANCES:

  • The Agency for Toxic Substances and Disease Registry announced the availability of the draft document Environmental Public Health Research Agency, Agency for Toxic Substances, 2002-201065 FR 44536 (7/18/00).

red bar graphic  WATER QUALITY:

  • EPA announced the availability of a document entitled Understanding and Accounting for Method Variability in Whole Effluent Toxicity (WET) Applications Under the NPDES Program. 65 FR 44528 (7/18/00). 
  • EPA announced the availability of a proposed NPDES general permit for offshore oil and gas exploration, development and production operations in federal waters offshore of California. 65 FR 45063 (7/20/00). 

red bar graphic  DOJ NOTICES OF APPROVAL:

  • In re CML, Inc., No. 98-49286-HJB (Bankr. D. Mass. June 27, 2000) (the insurer of settling CERCLA defendants must pay $575,000 in past EPA response costs incurred at the Kearsarge Metallurgical Corporation Superfund site in Conway, N.H.), 65 FR 44807 (7/19/00);
  • U.S. v. EW Holding Corp., No. 00332T (D.R.I. July 6, 2000) (settling OPA defendants connected to an oil spill that occurred on January 19, 1996, in the waters of Block Island Sound, R.I., must implement a lobster restoration program, must pay $8 million to the United States and Rhode Island so their natural resource trustees can implement various restoration projects, and must pay the natural resource trustees for their assessment costs that have not previously been reimbursed), 65 FR 44808 (7/19/00);
  • U.S. v. Nalco Chemical Co., No. 91-C-4482 (N.D. Ill. June 23, 2000) (a settling CERCLA defendant must pay to the Hazardous Substances Superfund $300,000 in past response costs incurred at the Byron Salvage Superfund site in Ogle County, Ill.), 65 FR 44809 (7/19/00);
  • U.S. v. Nalco Chemical Co., No. 91-C-4482 (N.D. Ill. Aug. 3, 1999) (a settling CERCLA defendant must pay $860,900 to the Hazardous Substances Superfund in reimbursement of past response costs incurred at the Byron Salvage Superfund site in Ogle County, Ill., must perform certain soil remediation work, and may be required to make an additional payment), 65 FR 44809 (7/19/00);
  • U.S. v. Royal Oak Enterprises, Inc., No. 99-1506-A (E.D. Va. June 23, 2000) (a settling defendant that violated the CAA at its  Kenbridge, Va., charcoal briquet manufacturing plant must pay a $450,000 civil penalty), 65 FR 44809 (7/19/00).

Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved  


red bar graphic ALABAMA

Dept. of Envtl. Management

Proposed Regulations-Water Quality

Proposed Regulations-Air Quality

  • Proposed SIP revisions regarding implementation of the one-hour ozone standard in the Birmingham nonattainment area. Gasoline sulfur content and Reid Vapor Pressure controls, as well as NOx emission controls on electric utility plants, are among the proposed control strategies. Public hearing on Aug. 16; comments due Aug. 18. Details at http://www.adem.state.al.us/phdiv3.html

Public Notices–Permit Applications 

red bar graphic  ALASKA

Dept. of Envtl. Conservation

Water/Wastewater Operator Certification

Cruise Ship Regulation

Clean Drinking Water Loan Fund

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red bar graphic ARIZONA

Dept. of Envtl. Quality

Water Quality-CWA 305(b) Report

Draft Regulations-UST State Assurance Fund

Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements

red bar graphic ARKANSAS

Dept. of Envtl. Quality

Draft Remedial Action Decisions

red bar graphic CALIFORNIA

Air Resources Board

Draft Guidance-Permitting of New Stationary Diesel-Fueled Engines

Final "Smog Check" Report

Carpool Lane Use-Qualifying Vehicles

red bar graphic COLORADO

Water Quality Control Commission

Proposed Regulations

red bar graphic  CONNECTICUT

Dept. of Envtl. Protection

Request for Proposals

red bar graphic FLORIDA

Dept. of Envtl. Protection

New Legislation-Air Quality

General Permit-Temporary Agricultural Activities

  • Proposed rule will develop permitting criteria for horticultural, seasonal crops that are harvested in one growing season. No additional rule development workshops are currently scheduled. 

Proposed Regulations-NPDES Program; Stormwater

  • Proposed regulations would allow completion of NPDES delegation by incorporating standards governing stormwater and federal facilities. The proposed rule includes fees for implementing the NPDES stormwater program. 

Proposed Regulations-Surface Water Classification

  • Proposed rule amendment would reclassify Prospect Lake in Broward County. 

Proposed Regulations-Drinking Water

  • Proposed amendments will incorporate revisions to federal standards. 

Proposed Regulations-Air

  • Correction of technical errors in standards governing sulfur storage and handling facilities.

State Revolving Fund-Drinking Water

  • Proposed rule amendments would enable funding of additional wastewater management systems.
  • July 27 workshop regarding proposed revisions to the Department's Standard Operating Procedures for Field and Laboratory Operations. The Department proposes to delete all laboratory procedures from the document. 

red bar graphic GEORGIA

Dept. of Natural Resources

Proposed Regulations-Air Quality

  • Proposed amendments to Chapter 391-3-1, Procedures for Testing and Monitoring Sources of Air Pollutants, and amendments to the SIP for attaining the ozone standard in the Atlanta Ozone Nonattainment Area. Public hearing was July 12; will be taken up at July 26 meeting of Board of Natural Resources. For details, see http://www.ganet.org/dnr/environ/

Air Permit Applications

NPDES Permit Applications

red bar graphic IDAHO

Dept. of Envtl. Quality

Proposed Rules-Air Quality

Proposed Rules-Water Quality

  • Proposal will incorporate 40 C.F.R. Part 141, Subparts E and I, as well as 40 C.F.R. Part 142, regarding lead and copper and program primacy. Comments due July 26; no public hearing. For details, see http://www2.state.id.us/deq/rules/58-0108-0001.htm

Outstanding Resource Waters-Petitions

Risk Based Corrective Action

red bar graphic ILLINOIS

Envtl. Protection Agency

Permit Applications

  • NPDES renewal application submitted by City of Chicago Department of Sewers. Comments due Oct. 7; hearing same date. Details at http://www.epa.state.il.us
  • NPDES renewal applications submitted by Metropolitan Water Reclamation District of Greater Chicago. Comments due Sept. 22. Hearing Aug. 23. Details at http://www.epa.state.il.us
  • Clean Harbors Services, Inc. application to modify a RCRA/HSWA permit. Comments due Aug. 7. Details at http://www.epa.state.il.us

Strategic Planning Process

red bar graphic INDIANA

Dept. of Envtl. Management

Final Regulations-Air

Proposed Regulations-Air

Proposed Regulations-Water 

Proposed Regulations-Underground Storage Tank Financial Assurance Board

red bar graphic  LOUISIANA

Dept. of Envtl. Quality

Final Regulations-Fugitive Air Emissions

Final Regulations-RECAP 

Permit Applications

Proposed Settlement

red bar graphic MARYLAND

Dept. of the Environment

Proposed Regulations-Stormwater

Water Quality-Continuing Planning Process Document

Public Meetings/Hearings

Water Quality Standard-Triennial Review

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red bar graphic MASSACHUSETTS

Dept. of Envtl. Protection

Final Regulations-Waterways

Proposed Regulations-Air

Draft Plan-"Beyond 2000 Solid Waste Master Plan"

Enforcement Actions

red bar graphic  MICHIGAN

Dept. of Envtl. Quality

Management Team Public Meeting

Permit Applications-Air

  • For pending applications, see http://www.deq.state.mi.us/cal/dq070300.htm and http://www.deq.state.mi.us/aqd/misc/whnew.html
  • Northern Oaks RDF, for a Renewable Operating Permit. 
  • Venture Industries, for an air permit.
  • Michigan Sugar Co., for a Renewable Operating Permit. 
  • City Environmental Services, for a Renewable Operating Permit.
  • Georgia-Pacific Corp., for a Renewable Operating Permit.  
  • Alchem Aluminum, Inc., for a permit to install a facility to be located in Buena Vista. 
  • Stone Container Corp., for permit for installation and operation of air pollution control systems at facility in Ontonagon.
  • KM Power Company, for installation of a 550 megawatt natural gas-fired power plant in Jackson. 
  • Viking Energy, Lincoln, for increase in allowed tire-derived fuel usage rate.
  • Tuscarora, Inc., for increased emissions from an existing polystyrene foam manufacturing facility in Chesaning.
  • Lafarge Corporation, for a change in raw material mix and increases in HCl emissions from cement kilns in Alpena.

For details, see http://www.deq.state.mi.us/aqd

Air Quality Division Newsletter

Surface Water Quality Division Bulletin

Surface Water Quality Division-Draft Regulations

red bar graphic MINNESOTA

Pollution Control Agency

Malformed Frogs Update

Permit Applications, Other Notices

red bar graphic  MISSOURI

Dept. of Natural Resources

Water Pollution Control-Permit Applications

red bar graphic NEW JERSEY

Dept. of Envtl. Protection

Proposed Regulations-Freshwater Wetlands

Draft Watershed Management Rules

Current DEP Bulletin (Permit Applications; Proposed Regulations)

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red bar graphic NEW YORK

Dept. of Envtl. Conservation

Comparative Risk Project

Proposed Regulations-Landfill Air Emissions 

Environmental Notice Bulletin (Permit Applications)

Permit Applications

red bar graphic  NORTH CAROLINA

Dept. of Envt. and Natural Resources

Clean Water Management Trust Fund

  • Funding will be increased to $100 million per year by fiscal year 2003-2004 under a budget bill signed into law June 30. See http://www.ncga.state.nc.us (Go to "Bill Look-Up"). 

Division of Air Quality-Nitrogen Oxide Emissions

Division of Air Quality Penalty Assessments

DENR Enforcement Data

Water Quality-Basinwide Assessment Reports

red bar graphic OHIO

Envtl. Protection Agency

OPEA Actions, Notices by County

Pending Air Permits

Permit Applications

Draft TMDL

red bar graphic OKLAHOMA

Dept. of Envtl. Quality

Draft Source Water Assessment and Protection Program Document

red bar graphic OREGON

Dept. of Envtl. Quality

Water Quality Permit Applications

Public Notices-Cleanup Remedies

red bar graphic PENNSYLVANIA

Dept. of Envtl. Protection

Proposed Regulations-Coal Refuse Disposal

Proposed Area Designations-Air Quality

Final General NPDES Permit-CAFO Operations

Final Regulations-Air

Proposed General NPDES Permit Revision

NPDES Permit Applications

Corrective Amendment to 25 Pa. Code §89.67(b)

Proposed Envtl. Quality Board Policy for Processing Petitions

  • Regarding petitions for redesignation of streams under Chapter 93 (water quality standards) and the Clean Streams Law (35 P.S. §§691.1-691.1001). 

red bar graphic SOUTH CAROLINA

Dept. of Health and Envtl. Control

Permit Application Notices

red bar graphic  TENNESSEE

Dept. of Environment and Conservation

Proposed Regulations-Water Quality-Fees

Proposed Regulations-Dam Inspection/Construction

Grant Availability-Recycling Marketing

red bar graphic  TEXAS

Natural Resource Conservation Commission

Final Regulations-Solid Waste

Final Regulations-Air

Proposed Regulations

Submitted Report-Air-Protection of Visibility

Permit Hearings

Sunset Advisory Commission

Penalty Assessment

Strategic Plan

red bar graphic  UTAH

Dept. of Envtl. Quality

Permit Applications

red bar graphic VIRGINIA

Dept. of Envtl. Quality

Landfill Closure Proposal

  • Comments accepted through Oct. 13 on reports that propose that certain landfills be closed by 2005, other identified facilities by 2010, and five more by 2020, on the basis of risk of exposure to contaminants. The DEQ has also compiled new data regarding the receipt of out-of-state generated municipal solid waste in 1999. For details, see http://www.deq.state.va.us/news/releases/964019031.html

Proposed Consent Orders

Public Meeting Notices

red bar graphic  WASHINGTON

Dept. of Ecology

Adopted Regulations

Proposed Regulations


red bar graphic WEST VIRGINIA

Dept. of Envtl. Protection

Public Notice Bulletin (Permit Applications, Proposed Regulations)

red bar graphic WISCONSIN

Dept. of Natural Resources

Public Hearing and Meeting Schedule