LEGAL ISSUES
Clean Water Act Case: United States v. Cundiff, 2007 WL 957346 (W.D. Ky. March 29, 2007) By Jim Murphy -- National Wildlife Federation – April 11, 2007 In this Kentucky case, Defendants appealed a permanent injunction from discharging dredge and fill material on wetlands adjacent to Pond and Caney Creeks, tributaries of the navigable Ohio and Green Rivers, without complying with Clean Water Act.  Defendants argued that the wetlands were not jurisdictional because they do not meet Justice Scalia's test from Rapanos.  The court disagreed.  It ruled that, under Rapanos, jurisdiction can be established pursuant to either Justice Kennedy's "significant nexus" test or Justice Scalia's "relatively permanent," "continuous surface connection" test.  It then found that the wetlands were jurisdictional under both tests. In finding that jurisdiction can be established under either Justice Kennedy's or the plurality's tests, the court agreed with the First Circuit Court of Appeal's decision in United States v. Johnson court that in interpreting splintered rulings, such as Rapanos, where the majority in judgment had no common rationale, all opinions, including the dissent, should be evaluated by lower courts for principles embraced by a majority of the Court.  Looking to Justice Stevens' dissent, the court said: "[s]ignificantly, in accordance with this case law, the four dissenting Justices in Rapanos stated explicitly that they would sustain the exercise of federal regulatory jurisdiction under the CWA whenever either the plurality's standard or Justice Kennedy's standard is satisfied."  Id. at *3.In applying Justice Kennedy's test, the court looked to expert witness testimony that demonstrated that the wetlands function as water storage, pollutant filtration, and habitat support for the navigable Green River.  Id.at *4.  Expert testimony also showed that filling the wetlands diminished capacity for storing water, leading to flooding downstream that affected navigation and crop production (commerce), stream bank erosion and sedimentation.  Evidence was also presented that destruction of the wetlands allowed acid mine drainage to move quickly into the Creeks and Rivers without being first filtered out by the wetlands.  Thus, the court found that because the wetlands "alone and in combination with other area wetlands 'significantly affect the chemical, physical and biological integrity' of the Green River," there exists a "significant nexus," satisfying Justice Kennedy's test.  Id. at *5.
Clean Water Act Case: United States v. Fabian, 2007 WL 1035078 (N. D. Ind. Mar. 29, 2007) By Jim Murphy -- National Wildlife Federation – April 11, 2007 In a case out of the Federal District Court for the Northern District of Indiana, a judge ruled that wetlands separated by a levee from the Little Calumet River were jurisdictional because they were adjacent to a navigable-in-fact river.  The case concerned a landowner who had filled approximately 7.5-10 acres of wetlands on site containing up to about 19.5 acres of wetlands.  The wetlands at issue did not have surface flow to the river, though the United States alleged that the wetlands did contribute to the base flow of the river. Applying Justice Kennedy's test, the court concluded that the wetlands were adjacent to the Little Calumet River because Justice Kennedy upheld the Corps' current broad definition of adjacency, which includes wetlands separated from other waters "by man-made dikes or barriers."  2007 WL 1035078 at *13 (citations omitted).  The court then examined whether the Little Calumet River was navigable-in-fact, stating: "Fabian would have this Court believe that the distinction between navigable-in-fact and non-navigable-in-fact waters is irrelevant here, and that in either case Justice Kennedy's substantial nexus test must be applied. That is not the case. Justice Kennedy's concurring opinion states that:  When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction. Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries."Id. at *13 (citation omitted).  The court concluded that "[i]f the Little Calumet River is navigable-in-fact, Justice Kennedy would find as a matter of law that jurisdiction exists."  Id. at *14.  Because the four dissenting votes in Rapanos would find that "jurisdiction exists regardless of whether the Little Calumet River is navigable-in-fact because it is without question that the Little Calumet River is a tributary of a navigable in fact water," Justice Kennedy's analysis is dispositive.  Id.  The court then relied on evidence that the river supports canoe boat traffic to find that it is navigable-in-fact, even though the court questioned "how likely it is that this body of water will be used for substantial interstate commerce."  Id. at *14-15.  Thus, the court ruled that the wetlands were jurisdictional. The court also decided that the area at issues was indeed wetlands, that Fabian's movement of earth to fill the wetlands was not incidental fallback, and that, depending on further factual inquiry, "[a]t this point, it appears from the record [that restoration of the wetlands is an appropriate remedy]."
Environmental Protection Agency v. Defenders of Wildlife (06-549); Natl. Assoc. of Home Builders v. Defenders of Wildlife (06-340) By Cecelia Sander – LII Bulletin/Cornell Law School – April 17, 2007 This case involves the intersection of two landmark environmental statutes, the Clean Water Act and the Endangered Species Act. Under the Clean Water Act, the EPA issues permits for discharging pollutants into the water. The statute provides for the transfer of permitting authority to a state when certain requirements are met. Section 7 of the Endangered Species Act imposes an obligation on agencies to insure that their actions do not cause harm to endangered species and to consult with other federal services to achieve this end. However states are not bound by Section 7’s obligations. Defenders of Wildlife challenge the EPA’s decision to transfer to Arizona permitting authority under the Clean Water Act. For the full bulletin, visit: http://www.law.cornell.edu/supct/cert/06-549.html   For additional information on these cases, visit: http://eswr.com/courts/ussc/06340.htm
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Reports
3.6 Million Acres of Wetlands Conserved Since 2004 USFWS News – April 22, 2008 Wetland acres restored, created, improved and protected in the past four years has exceeded the President's goal, set on Earth Day 2004, to conserve three million acres by 2009. Today the Council on Environmental Quality (CEQ) released a new report highlighting how the President’s goal was achieved one year early. Conserving America’s Wetlands 2008: Four Years of Partnering resulted in Accomplishing the President’s Goal documents this natural resource conservation success story. For the full report, go to: http://www.whitehouse.gov/ceq/wetlands/2008/index.html
Report Released on the Economic Importance of America's Estuaries Restore America's Estuaries announces the release of its report, The Economic and Market Value of Coasts and Estuaries: What's At Stake? The report examines the high costs of losing coastal and estuarine environments.  Restore America's Estuaries held a Congressional Briefing on the findings of the report on May 22.  Dr. Linwood Pendleton of the Ocean Foundation's Coastal Ocean Values Center presented the findings and answered questions at the well attended briefing.  For more information or to read the report: http://www.estuaries.org/assets/documents/FINAL%20ECON% 20WITH%20COVER%20PDF%205-20-2008.pdf
Conserving America’s Wetlands 2008: Four Years of Partnering Resulted in Accomplishing the President's Goal On Earth Day 2004, the Council on Environmental Quality established a national wetland initiative to restore or create (by 2009), at least one million wetland acres; improve or enhance at least one million wetland acres; and protect at least one million wetland acres. On Earth Day 2008 the council reported that the goals had surpassed the 2004 projections. The current figures indicate that approximately 1,197,000 acres have been restored or created, 1,079,000 acres improved, and 1,324,000 acres have been protected. For the complete report, visit the Council on Environmental Quality website at http://www.whitehouse.gov/ceq/wetlands/2008/index.html
Public Review Draft Available for Comment -- National Water Program Strategy: Response to Climate Change Last year, the EPA Office of Water initiated an assessment of the impacts of climate change on water programs.  Today, EPA is releasing a draft of the National Water Program Strategy: Response to Climate Change and is seeking comments on the document over the next 60 days.  More information, including a copy of the draft Strategy, is available at http://www.epa.gov/water/climatechange/
Survey Says: Army Corps No Scalian Despot by Kim Diana Connolly -- Environmental Law Institute's ELR News & Analysis -- May 2007 Editor's Summary: Justice Antonin Scalia and others have described the U.S. Army Corps of Engineers’ (the Corps’) administration of the CWA§404 permitting process as burdensome and inefficient. Empirical data gathered from the Corps, however, do not bear out this assessment. In this Article, Kim Diana Connolly evaluates data collected from Corps Customer Service Surveys as well as the apparent disconnect between applicant experiences and the public’s negative perception of the permitting process. For a link to this article, go to: http://www.aswm.org/ fwp/survey_ says_0507_ connolly.pdf
"Significant Nexus" Clean Water Act Jurisdiction Draft Decision Paper Availabe for Review and Comment ASWM has posted a draft discussion paper that provides a detailed description of the Carabell/Rapanos decision and other relevant court cases. It includes recommendations on how the agencies should proceed as they pursue guidance and/or rulemaking. It is posted as a draft document and comments and ideas are welcome through the end of December. The full document: "Significant Nexus" and Clean Water Act Jurisdiction The summary and recommendation section: Recommended Actions to Clarify Clean Water Act Jurisdiction Following Issuance of the Consolidated Decision, Rapanos v. U.S. 126 S. Ct. 2208 (S.Ct. 2006)
ASWM Press Release, March 30, 2006 Ponds Proliferate, but Wetland Losses Continue The good news in the recently-released report by the U.S. Fish and Wildlife Service-Status and Trends of Wetlands in the Conterminous United States: 1998 to 2004-is the continued decline in the rate of wetland loss. The bad news is that while the rate of wetland loss has declined, tidal salt marshes and shrub swamps continue to be lost at significant levels. Unfortunately, the report's seemingly-good conclusion that the nation has achieved "no net loss of wetlands" is misleading. The "no net loss of wetlands" is largely due to the proliferation of ponds, lakes and other "deepwater habitats," as the report points out. These ponds include ornamental lakes for residential developments, stormwater detention ponds, wastewater treatment lagoons, aquaculture ponds and golf course water hazards. (More)
U.S. Supreme Court Issues Complicated Decision; Remands Rapanos and Carabell to Lower Courts for More Fact-Finding Additional information is available at: http://www.aswm.org/fwp/rapanos_state2006.htm
S. D. Warren: Unanimous Decision in Support of the States and the Clean Water Act   In a unanimous decision the Supreme Court held that "Because a dam raises a potential for a discharge; Section 401 is triggered and state certification is required."
· Syllabus - S.D. Warren v. Maine Board of Environmental Protection, et. al. · Opinion of the Court - S.D. Warren v. Maine Board of Environmental Protection, et. al. · Transcript of Oral Arguments - S.C. Warren v. Maine Board of Environmental Protection, et. al. (PDF)
"Waters of the U.S." After SWANCC. This paper was prepared for a workshop on Clean Water Act Jurisdiction held by ASWM in October 2005. The paper includes an examination of the Clean Water Act definition of waters, the SWANCC decision, and court cases and administrative guidance relevant to SWANCC. It also includes discussion on legal and factual issues important to identifying jurisdictional wetlands in the field. The draft paper is posted at: http://www.aswm.org/calendar/legal/legalpaper.pdf.
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Guidance Documents
Revised Guidance addressing Clean Water Act jurisdiction following Rapanos decision
EPA News Release – December 3, 2008 On June 5, 2007, the Environmental Protection Agency (EPA) and the Department of the Army issued guidance clarifying Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States. The agencies received 66,047 public comments on the Rapanos Guidance (65,765 form letters, 282 non-form letters), from States, environmental and conservation organizations, regulated entities, industry associations, and the general public. EPA and the Department of the Army jointly reviewed the comments and released a revised version of the guidance on December 2, 2008 in consideration of those comments and consistent with the agencies' experience implementing the guidance. The revised guidance and a set of questions and answers on the guidance are posted at: http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html  Specifically three documents have been revised: For the revised Q&A, go to: http://www.epa.gov/owow/wetlands/pdf/Rapanos_%20Guidance_QA%20120208.pdf For the revised guidance, go to: http://www.epa.gov/owow/wetlands/pdf/CWA_Jurisdiction_Following_Rapanos120208.pdf For the revised comments, go to: http://www.epa.gov/owow/wetlands/pdf/Comments_Response_120208.pdf For a related press release, Revised EPA “Guidance” Amplifies Need for Clean Water Restoration Act by National Wildlife Federation, Contact: Aileo Weinmann – December 4, 2008 “The revised Guidance clearly points to the need for Congress to clean up the legal mess and restore full protections to our Nation’s waters.” For press release, go to: http://ww.pennnet.com/display_article/347036/41/ARTCL/none/none/1/Revised-EPA-
House and Senate Hearings Held on Clean Water Restoration Act
On April 16 the House Transportation and Infrastructure Committee held a hearing on the Clean Water Restoration Act.  The committee received testimony from the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, the U.S. Department of Justice, the U.S. Department of Agriculture's Natural Resources Conservation Service, representatives of State and local governments, environmental, agricultural, and industry interests, legal practitioners, and other stakeholders on the Clean Water Restoration Act of 2007.  More information about the hearing including the live webcast, background paper and testimony is available at:http://transportation.house.gov/hearings/hearingDetail.aspx?NewsID=486 The live webcast and written testimony for the hearing on April 9, 2008 is available at http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID= 116d6ddd-802a-23ad-4f2f-4d329c912bb2
Update to Coastal and Estuarine Land Conservation Program Guidelines NOAA’s Coastal and Estuarine Land Conservation Program (CELCP) was established in 2002 to provide state and local governments with matching funds to permanently protect coastal and estuarine lands of ecological, conservation, recreational, historical or aesthetic significance.  Administration of CELCP is currently guided by the Final Guidelines for Coastal and Estuarine Land Conservation Program, published in the Federal Register in 2003.  The Guidelines establish the eligibility, procedural, and programmatic requirements for the CELCP, including criteria for financial assistance, criteria and processes for developing state CELCP plans, selecting and nominating land conservation projects from states to a national competitive process, and the national project selection process.  After five years of implementing CELCP under these Guidelines, NOAA plans to clarify certain provisions and consider other changes.  In April, NOAA announced the Guidelines update in the Federal Register, inviting states, NGOs, and other interested parties to provide comments or suggestions for revision to the Guidelines within a 60-day comment period (73 Fed. Reg. 19, 193, April 4).  More information about CELCP and a copy of the Federal Register Notice are available at http://coastalmanagement.noaa.gov/land/celcp_indepth.html.  Comments are requested by June 9, 2008.
Legislation in the 110th Congress Related to Global Climate Change News from Pew Center on Global Climate Change Members of the 110th Congress (2007-2008) are introducing legislation related to global climate change at a faster pace than any previous Congress. As of March 2008, lawmakers had introduced more than 195 bills, resolutions, and amendments specifically addressing global climate change and greenhouse gas (GHG) emissions—compared with the 106 pieces of relevant legislation the previous Congress submitted during its entire two-year (2005-2006) term. For more information, visit: http://www.pewclimate.org/what_s_being_done/in_the_congress/110thcongress.cfm
Final Mitigation Rule Will be Available March 31 The final mitigation rule has cleared the review process and is expected to be published in the Federal Register at the end of next week.  However, before that, there will be a formal announcement and press conference on the final rule the morning of Monday, March 31.  The final rule will be posted on the EPA Wetlands Division website at: http://www.epa.gov/wetlandsmitigation/ late in the morning of March 31.
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News December 2008
USDA Annouonces New Office of Ecosystem Services and Markets
Washington, D.C. – December 18, 2008 Agriculture Secretary Ed Schafer today announced the intention to establish a new USDA Office of Ecosystem Services and Markets and the creation of a federal government-wide Conservation and Land Management Environmental Services Board to assist the Secretary of Agriculture in the development of new technical guidelines and science-based methods to assess environmental service benefits which will in turn promote markets for ecosystem services including carbon trading to mitigate climate change. For full article, click here.
U.S. Fish and Wildlife Service Director Announces Grants to Protect Coastal Wetlands Across the Nation
Contact: Joshua Winchell – US FWS News Release – December 17, 2008 H. Dale Hall, Director of the U.S. Fish and Wildlife Service, announced today that twenty-five conservation projects benefiting fish and wildlife on more than 13,543 acres of coastal habitat in twelve States will be funded with $20.1 million from 2009 National Coastal Wetlands Conservation Grant Program. The grants will be used to acquire, restore or enhance coastal wetlands and adjacent uplands to provide long-term conservation benefits to fish, wildlife and their habitat. States receiving funds include Alaska, California, Connecticut, Florida, Georgia, Maine, New Jersey, Oregon, Texas, Virginia, Washington, and Wisconsin. These federal grants will be matched by nearly $27 million in partner contributions from state and local governments, private landowners and conservation groups. View projects funded by the 2009 grant program at http://www.fws.gov/home/feature/2008/pdf/039367winchellNRcoastalgrants2009.pdf For full press release, go to: http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=45E871BF-A842-ABC2-09E3874BDA9B5F0A
Deterioration of the Nation’s Clean Water Act Enforcement Program
Committee on Oversight and Government Reform Press Release – December 16, 2008 Oversight and Government Reform Committee Chairman Henry A. Waxman and Transportation and Infrastructure Committee Chairman James L. Oberstar wrote to President-elect Obama regarding their investigation into the drastic deterioration of the Clean Water Act enforcement program. “One of the legacies of the Bush Administration is its failure to protect the safety and health of the nation’s waters,” said Chairman Waxman. “Our investigation reveals that the clean water program has been decimated as hundreds of enforcement cases have been dropped, downgraded, delayed, or never brought in the first place. We need to work with the new Administration to restore the effectiveness and integrity to this vital program.” For full press release, go to: http://oversight.house.gov/story.asp?ID=2292 For the letter from Henry Waxman and James Oberstar to President-Elect Obama, go to: http://oversight.house.gov/documents/20081216114005.pdf For the memo re: Decline of Clean Water Act Enforcement Program, go to: http://oversight.house.gov/documents/20081216113810.pdf For a related press release by NWF, go to: http://www.nwf.org/news/story.cfm?pageId=40F4AE51%2D5056%2DA868%2DA017C338E5CA2546
New Regulation Opens Loophole in Endangered Species Act
American Bird Conservancy – December 11, 2008 The Secretary of the Interior Dirk Kempthorne announced today a final rule change that weakens implementation of the Endangered Species Act (ESA). At issue are Section 7 consultations with endangered species experts at the Fish and Wildlife Service (FWS) and National Marine Fisheries Service, which are currently mandatory for any federal agency where their actions may affect endangered species, even if no negative impacts are likely. For full press release, go to: http://www.abcbirds.org/newsandreports/releases/081211.html
Wetlands Grant Database Available Online
The Wetland Grant Database (WGD) houses grant data for Wetland Program Development Grants (created by EPA in 1990 under the Clean Water Act Section 104(b)(3) authority), as well as for a three-year demonstration pilot program (the "Pilot Grants"), for which a portion of the national grant appropriation could be used for program implementation. The WGD also houses grant Case Study narratives, and Model Products created by the grant program. For more information, visit: http://www.epa.gov/owow/wetlands/initiative/#financial
Fish and Wildlife Service Proposes Addition of Penguin Species to Endangered Species List
Contact: Craig Rieben – USFWS News Release – December The U.S. Fish and Wildlife Service is proposing to list one penguin species as endangered and five penguin species as threatened under the Endangered Species Act (ESA). The Service also found that three species of penguins do not warrant listing throughout their range and is proposing listing one species as threatened in a significant portion of its range. For full press release, go to: http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=471BA860-0EA0-7F90-972F3B8DD9F6E185
Back to Reality – Restoring Science in Government
By Olivia Judson – Blog – New York Times – December 2, 2008 President-elect Obama already has a long to-do list. But here’s another item for it: to restore science in government. The most notable characteristic of the Bush administration’s science policy has been the repeated distortion and suppression of scientific evidence in order to fit ideological preferences about how the world should be, rather than how it is. In his disturbing book “Undermining Science: Suppression and Distortion in the Bush Administration,” the journalist Seth Shulman describes case after case of intimidation of scientists in government posts, the suppression of scientific evidence and the perpetuation of misinformation. For full blog entry, go to: http://judson.blogs.nytimes.com/2008/12/02/back-to-reality/
Obama Embraces 'Green Path' in Stimulus Plan to Aid Environment
ENN (Bloomberg News) – December 2, 2008 President-elect Barack Obama is considering a stimulus package that will include a heavy dose of spending on environmentally friendly projects aimed at creating “green-collar jobs” and saving energy. While the package will focus on short-term outlays for traditional infrastructure projects to jumpstart an economy now officially declared to be in recession, it will also include longer-term measures to safeguard the environment. For full story, go to: http://www.enn.com/top_stories/article/38763
Archived News
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News November 2008
EPA, Interior Dept. Chiefs Will Be Busy Erasing Bush's Mark
By Juliet Eilperin – Washington Post – November 28, 2008 Few federal agencies are expected to undergo as radical a transformation under President-elect Barack Obama as the Environmental Protection Agency and the Interior Department, which have been at the epicenter of many of the Bush administration's most intense scientific and environmental controversies. For full article, go to: http://www.washingtonpost.com/wp-dyn/content/article/2008/11/27/AR2008112702184.html?wpisrc=newsletter
Dems look to stop endangered species Endangered Species rule changes
ENN – November 20, 2008 With the Bush administration on the verge of relaxing regulations protecting endangered species, Democratic leaders are looking at ways to overturn any last-minute rule changes. The Bush administration has until Friday to publish new rules in order for them to take effect before President-elect Barack Obama is sworn in. Otherwise, Obama can undo them with the stroke of a pen. For full story, go to: http://www.enn.com/top_stories/article/38695
Election of Barack Obama Holds ‘Great Promise for Restoration of Great Lakes’
Coalition Vows to Work with President-Elect, New Congress to Restore and Protect Lakes, Boost Regional Economy. Statement by Jeff Skelding, national campaign director, Healing Our Waters-Great Lakes Coalition on election of Sen. Barack Obama to President of the United States. November 5, 2008 - “The Healing Our Waters-Great Lakes Coalition is excited about Sen. Barack Obama’s victory and looks forward to working with his Administration and the new Congress for the change we need to restore and protect the Great Lakes—a national icon that is the foundation of our national economy and the source of our drinking water, health and way of life. “The election of Barack Obama holds great promise for the restoration of the Great Lakes. During his tenure as a Great Lakes senator, President-elect Obama championed the restoration of the Great Lakes. He further showed his leadership for healthy lakes and healthy lives during his campaign for the White House by proposing a five-point restoration plan – including $5 billion in new federal funds - to address the serious threats to the lakes such as aquatic invasive species, toxic pollution, and sewage overflows. For full press release, go to: http://www.healthylakes.org/news-events/2008/11/05/election-of-barack-obama-holds-%e2%80%98great-promise-for-restoration-of-great-lakes%e2%80%99
Archived News
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News October 2008
Bush’s Last-Minute Rule Making Has Environmental Implications
By Tom Zeller – The New York Times – October 31, 2008 Last May, the White House chief of staff, Joshua Bolten, sent a memo to regulatory agencies advising them to pull together any proposed rule changes they might wish to pursue by June 1, with an aim toward making them final by Nov. 1. This, Mr. Bolten explained, was to avoid a mad dash for midnight regulations — those last-minute tweaks to federal rules made in the twilight of a departing administration. For full story, go to: http://greeninc.blogs.nytimes.com/2008/10/31/bushs-last-minute-rule-making-has-big-environmental-implications/
Stagnant Waters: The Legacy of the Bush Administration on the Clean Water Act
Report by the House Committee on Transportation and Infrastructure – October 18, 2008 Over the past eight years, the Bush administration has slowed the progress in cleaning up the nation’s waters, and has taken steps to undermine the successes already achieved – to virtually eliminate any Federal “safety-net” in protecting the nation’s water-related environment. The Bush administration has presided over the slow, but steady, dismantling of the Clean Water Act. However, unlike earlier overt attempts by Republicans in Congress, the Bush administration’s weakening of the Act has been subtle – eliminating Federal clean water protections in favor of market-based, pro-industry philosophies that will result in dirtier water throughout the United States. For the full report, visit:   http://transportation.house.gov/Media/File/Full%20Committee/Stagnant% 20Waters%202008%20Clean%20Water%20Act%20Report.pdf
Archived News
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News September 2008
E.P.A. Kills Water Project in Delta
The New York Times – September 5, 2008 The Environmental Protection Agency killed a federal plan to build the world’s largest water pump in the Mississippi River Delta. It is the first time since 1990 that the E.P.A. has vetoed a project proposed by the Army Corp of Engineers. The $220 million proposal would have moved six million gallons of water a minute from 67,000 acres of wetlands along the Yazoo River. The agency said the project would cause unacceptable damage to fish, wildlife and waterfowl. For a link to this story, go to: http://www.nytimes.com/2008/09/03/washington/03brfs-EPAKILLSWATE_BRF.html?_r=1&ref=us&oref=slogin
States Plan to Sue U.S. EPA Over Final Permit Fee Rule
ECOSwire – Environmental Council to the States - September 5, 2008 U.S. EPA has submitted to the Federal Register for publication the final rule to implement a new NPDES permit fee incentive allotment formula starting in fiscal year (FY) 2009. The agency received 717 comments on the proposal. In rejecting the major state argument against the rule, EPA claims it has the authority to create the program and issue the rule. That authority will be challenged in an upcoming lawsuit being planned by the attorneys general from New York and Nevada. Other states are likely to join the suit. EPA rebuffs the states’ criticisms of the rule by declaring it is “voluntary” and that input was solicited and considered from ECOS and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA). The agency appears to see something for everyone in the rule, even declaring that it responds directly to the State Resource Analysis Report (the gap) in that states that create or expand permit fee programs to qualify for the incentive funds will realize a net increase in available water program funding. The rule has had little, if any, support since it was proposed in the President’s FY 2007 Budget Request for EPA. Although the budget language was never enacted into statute, EPA determined it had the statutory authority to promulgate the rule. The agency says it will submit the final rule to Congress in accordance with the Congressional Review Act, which is likely to draw the attention of lawmakers who also opposed the rule. The final rule (http://www.epa.gov/owm/cwfinance/npdes-permit-fee.htm) changes the base fiscal year that EPA will use to determine if an allotment will be made from FY 2006 to FY 2008, which means that the incentive funds will only be available if Congress allocates more than $171 million for Section 106 grants in any fiscal year. The deadline for states to certify eligibility to receive the funds is November 14, 2008.
Archived News
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News August 2008
Proposed Rule Amending the Endangered Species Act Section 7 Consultation Regulations Published in the Federal Register
By Elizabeth Lake, et.al. – Holland & Knight Newsletter – August 15, 2008 The Department of Interior and the National Oceanic and Atmospheric Administration published a proposed rule on August 15, 2008, Vol. 73 Fed. Reg. 47868 significantly revising the Section 7 Consultation process under the federal Endangered Species Act (ESA) for the first time since 1986. The proposed rule, which claims to merely implement lessons learned and make minor procedural changes, reflects the Department’s desire to reduce the regulatory burden of the consultation process and remove consideration of greenhouse gas (GHG) emissions from the consultation process. According to the Department, “While this rule will help avoid misuse of the ESA to regulate climate change, the rule will also generally improve the consultation process.”1 However, the proposed changes may have some unintended consequences that could adversely affect development projects seeking Section 7 Consultations across the United States. For full article, go to: http://www.hklaw.com/id24660/PublicationId2437/ReturnId31/contentid52282/
Wildlife protections threatened
By Dina Cappiello - Delaware Online – August 12, 2008 The Bush Administration wants federal agencies to decide for themselves whether highways, dams, mines and other construction projects might harm endangered animals and plants. New regulations that don't require the approval of Congress would reduce the mandatory independent reviews government scientists have been performing for 35 years, according to a draft first obtained by the Associated Press. Interior Secretary Dirk Kempthorne said late Monday the changes were needed to ensure that the Endangered Species Act would not be used as a "back door" to regulate the gases blamed for global warming. In May, the polar bear became the first species declared threatened because of climate change. Warming temperatures are expected to melt the sea ice the bear depends on for survival. For full story, go to: http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20080812/NEWS08/808120358/1006/ NEWS&GID=G+hAH/DyMG13/WVJ+dWI3lrS4NgSpHfqAhmVnUhh3S8%3D For a related Los Angeles Times story, go to: http://latimesblogs.latimes.com/greenspace/2008/08/the-public-will.html
Archived News
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Federal Agency Links of Interest
U.S. Environmental Protection Agency
Office of Water Office of Wetlands, Oceans and Watershed Wetlands Division Regional Wetland Offices
	Region 1 New England Biological Assessment of Wetlands Work Group Region 2 Office of Water Region 3 Water Protection Division Region 4 Wetlands Section Region 5 Water Division Region 6 Marine & Wetlands Section Region 7 Water, Wetlands, and Pesticides Region 8 Water Programs Region 9 Water Programs Region 10 Office of Water Issues
EPA Wetland Research Programs
	Research & Development Research Programs
U.S. Army Corps of Engineers
Civil Works Wetland Regulatory Program Division and District Offices
	Corps Regulatory District Offices Corps Division and Districts Offices
Institute for Water Resources Engineer Research and Development Center (ERDC) Waterways Experiment Center
	Civil Programs - Wetlands Wetlands Research and Technology Center
U.S. Fish and Wildlife Service
Proposed Wetland Mapping Standard Division of Habitat and Resource Conservation National Wetland Inventory Service Wetland Programs Partners for Wildlife National Wildlife Refuges U.S. Fish and Wildlife Service Office Directory
U.S. Geological Survey
USGS Biological Resources USGS Water Resources of the United States National Wetlands Research Center USGS The National Map Geo-spatial One Stop
USDA Natural Resources Conservation Service
NRCS National Conservation Programs Centers and Institutes States and Regions NRCS Wetland Team Wetlands Reserve Program Wetland Conservation Provisions (Swampbuster) Contact NRCS
National Oceanic and Atmospheric Administration (NOAA)
Office of Habitat Conservation: Habitat Protection Division NOAA Restoration Center Coasts Coastal Zone Management State and Territory Coastal Management Program Summaries National Weather Service
National Mitigation Action Plan Federal Highways Administration Wetland Page

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