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This slender “Holiday Issue” of the Will & Carlson Newsletter reflects the absence of legislative activity in the Capital due to the Congressional winter recess and Federal holidays.  Although Congress returns to session on January 20, our Newsletter will continue to track issues of concern for our clients and Volume VI, Issue 1 will be posted to our website on January 5.

As we prepare for the 2^nd Session of the 108^th Congress, we’d like to provide you with a status report regarding actions from the 1^st Session and activities that will carry over to the 2^nd Session.

Congress completed the Energy and Water Appropriations Bill (funding for Bureau of Reclamation, Army Corps of Engineers, Department of Energy) and completed action on the Interior Appropriations Bill (funding the Fish & Wildlife Service and USGS).  Remaining to be addressed in the 2^nd Session is the VA/HUD Appropriations, Agriculture Appropriations, and Commerce Appropriations.  All of which are included in the Omnibus Appropriations Bill (H.R.2673) which passed the House on December 8.

Also carrying over to the 2^nd Session will be the Energy Bill (S.14) which is still to be taken up on the Senate floor.  Major Western water legislation addressing CALFED, rural water, dam safety, drought, the 21^st Century Water Commission, the Small Reclamation Loan Program, Off-Site Mitigation, the Water Resources Development authorization for the Corps of Engineers, as well as other Reclamation project-specific amendments and various Indian water rights settlement legislation, remain to be addressed in Congress.

We may also see 2^nd Session efforts to address sound science, Endangered Species Act issues and possible amendments to the Clean Water Act.  And Congress will also address a new Transportation Re-authorization Bill.

We at Will & Carlson wish our clients and friends Joy over the Holidays, and Peace in the New Year.  We’ll meet up with you again right here in Newsletter Volume VI, on January 5.

The Draft 500-Day Water Quality Plan

EPA Administrator Mike Leavitt cited a decade of improvements in water quality for public drinking water systems for all Americans as he unveiled the Draft Water Plan for the Environmental Protection Agency on Dec. 8.  Subtitled “Twice as Clean by 2015”,  the new EPA outline lists six major strategies towards this goal: 

• Provide clean and safe drinking water to all Americans. 

• Ensure that all beaches are safe for swimming. 

• Gain one million acres of wetlands. 

• Cut in half the number of "polluted" waters across the Nation. 

• Ensure the safety and sustainability of the Nation's water and wastewater infrastructure. 

• Initiate and lead regional collaborations to solve multi-jurisdictional problems

Each strategic category then lists several Action Items to be taken; few of them currently offer any useful details.  

A River Runs Through It

In an effort to detect and deter pollution in the upper Columbia River and in Lake Roosevelt, the EPA’s Region X Office, based in Seattle, announced in a news conference on Dec. 11 that, after consultation with the U.S. Department of Justice, they had issued a directive to a Canadian company, Teck Cominco Metals Ltd., to study the environmental effects of the 15 million tons of slag that have been dumped directly into the Columbia River from that company's smelter, located just 10 miles north of the United States border.

The Agency is demanding that the Vancouver, B.C.-based company perform a remedial investigation due to its 100-year history of slag dumping, as well as other contaminants, directly into the Columbia River.  In a reply to the EPA demand, and issued on the very same day, a spokesman for Teck Cominco called the order "inflammatory, precipitous, and unnecessary”.

EPA to Remain Lead Agency For Water Security in U.S.

President Bush signed Homeland Security Presidential Directive 7 (Hspd-7)  on Dec. 17, establishing “a national policy for the Federal government to identify, prioritize, and protect critical infrastructure as a part of homeland security”.  Language in the Directive makes the EPA responsible for overseeing the security of drinking water facilities and water treatment systems from possible terrorist activities or other sabotage.

The EPA Inspector General has recently issued a report stating that the EPA had not collected the basic information needed to implement an effective protection strategy for the nation’s critical water infrastructure [see October 6 - Issue 33].  The Agency responded to the IG’s report that although hundreds of “vulnerability assessments" from large systems were submitted to them, as required, the specifics of the bioterrorism law have prevented the EPA from effectively analyzing and "grading" the strategic information received – a step necessary before making recommendations.  Presidential Directive Hspd-7 is available at http://www.whitehouse.gov/news/releases/2003/12/20031217-5.htmlon 

Security-Minded Report from Environmental Law Institute

After a comprehensive review of Federal laws, programs, and policies to increase homeland security, the Environmental Law Institute issued an EPA-funded report on December 15 entitled Homeland Security and Drinking Water: An Opportunity for Comprehensive Protection of a Vital Natural Resource.  One of the purposes of the report is to coordinate security activities and information to the responsible parties, such as utilities, emergency responders, State and Federal governmental agencies, environmental groups, the legal sector, as well as the general public.  The report is divided into five categories of activity which “intersect” and are “ripe for collaboration”.  They are:  water infrastructure, public engagement, public health, technological advances, and emergency preparedness.  The report is available at:  http://www.elistore.org/reports_detail.asp?ID=10928=Water

Appeals Court: The Meaning of Ditch

In a ruling which may help to further clarify the legal definition regarding the extent of Federal jurisdiction over “waters of the United States” under the Clean Water Act, the U.S. Court of Appeals for the Fifth Circuit said on Dec.16 that a Louisiana couple is liable for the $200,000 clean up costs from an oil spill in a ditch on their property because the oil eventually reached a bayou that is adjacent to a navigable waterway (United States v. Needham).  

Lower courts had supported the claim of the residents, James and Janelle Needham, who were being sued by both the EPA and the U.S. Coast Guard for cleanup costs, that the spill did not affect navigable waterways; ruling that although the ditch was adjacent to Bayou Cutoff, the bayou was not "navigable-in-fact".  However, the Fifth Circuit Court found that because the oil eventually made its way from Bayou Cutoff into a secondarily adjacent body of water called Bayou Folse, which is adjacent to an inland waterway called the Company Canal, which does accommodate shipyards and dry docks and shipping activities…. that therefore the oil spill into the ditch did eventually affect navigable waters of the United States, and was therefore covered under the Oil Pollution Act (amended to the Clean Water Act in 1990).  The couple have filed for bankruptcy.

Western States Newspaper Headlines

“River authority bans ground fires”  December 18, 2003  The Austin American-Statesman  www.statesman.com/metrostate/

“City loses appeal over aquifer land.  Developer does not have to abide by stricter standards, Court rules”  December 19, 2003  The Austin American-Statesman www.statesman.com

“EPA won't cut back wetlands protection”  December 17, 2003  The Argus Leader www.argusleader.com

“Finality unlikely in river report”  December 18, 2003  The Argus Leader www.argusleader.com

“River outcome is considered vital to several species”  December 18, 2003  The Argus Leader www.argusleader.com

“Decision supports upstream interests”  December 18, 2003  The Argus Leader www.argusleader.com

“Fed up with border dike, landowners are mulling a lawsuit against Canada”  December 15, 2003  The Bismarck Tribune  www.bismarcktribune.com/30dayarchives/

“Dorgan wants delay in flood plain map”  December 15, 2003  The Bismarck Tribune  www.bismarcktribune.com/30dayarchives/

“Local View: Wells don't 'dry up' Platte”  December 15, 2003  Lincoln Journal Star  www.journalstar.com

“Water Policy Task Force needs at least $4.7 million”  December 18, 2003  Lincoln Journal Star  www.journalstar.com

“Government scientists affirm need for low flows on Missouri River”  December 18, 2003  Lincoln Journal Star  www.journalstar.com

“Mighty Mo is at a new low, but utilities aren't worried”  December 19, 2003  Lincoln Journal Star  www.journalstar.com

“Tualatin survey shows support for fluoridated water”  December 19, 2003  The Oregonian  www.oregonlive.com

“Work starts on reservoirs but no solution decided”   December 19, 2003  The Oregonian  www.oregonlive.com

“Water agency aims to show sustainability in new office”  December 18, 2003  The Oregonian  www.oregonlive.com

“Court finds utility's repair service illegal”  December 17, 2003  The Oregonian  www.oregonlive.com

“Klamath Tribes will unveil vision for reclaiming lands”  December 16, 2003  The Oregonian  www.oregonlive.com

“Drought Plan: City may face veto on water”  Las Vegas Review-Journal  December 17, 2003  www.reviewjournal.com

“Lawns and life could get ugly if lake keeps falling”  December 17, 2003  Las Vegas Review-Journal  www.reviewjournal.com

“Gardening: Watering schedule doesn't apply to drip irrigation”  December 18, 2003  Las Vegas Review-Journal  www.reviewjournal.com

“Suburb of Los Angeles: Nevada still No. 1 in growth”  December 19, 2003  Las Vegas Review-Journal  www.reviewjournal.com

“Phoenix seeks to raise fees for both water, wastewater”  December 15, 2003  The Arizona Republic  www.azcentral.com

“California closes trout stream over snails”  December 19, 2003  The Arizona Republic  www.azcentral.com

“EPA pulls its officers off homeland security”  December 16, 2003  The Sacramento Bee  www.sacbee.com

“Lodi's in deep water trouble”  December 21, 2003  The Sacramento Bee  www.sacbee.com

“W. Sac accepts $2.1 million for loss of trees to sewer line”  December 21, 2003  The Sacramento Bee  www.sacbee.com

“State air pollution may be big contributor to drought”  December 21, 2003  The Sacramento Bee  www.sacbee.com

News Found on the Web

“Predicting Invasions of Non-Indigenous Plants and Plant Pests”               2002  198 pages   Read it online for free

By the Committee on the Scientific Basis for Predicting the Invasive Potential of Non-indigenous Plants and Plant Pests in the United States, National Research Council.  "...A readable and informative look at the problem--one that can be understood by any educated layperson and which well balances its contextual and descriptive elements. ... Suitable as an extended 'executive summary' synopsis of the problem, general reading, or for college courses on related subjects."  -- Choice, January 2003  Go to: http://www.nap.edu/books/0309082641/html/

Adaptive Monitoring and Assessment for the Comprehensive Everglades Restoration Plan   by Linda Blum and William Logan

From the Water Science and Technology Board Newsletter of the National Academies of Science.  Volume 20, Number 2, May/June 2003

Ecological performance measures and system level conditions are identified for the Comprehensive Ecosystem Restoration Plan’s (CERP) Monitoring and Assessment Plan (MAP) and the way that these measures and conditions will be used to assess progress in restoration.  For more information, go to:  http://www7.nationalacademies.org/wstb/

Secretary Veneman Announces Proposed Rule for the Conservation Security Program; Water Quality Enhancement is Top Priority

Washington, Dec. 17, 2003 – Agriculture Secretary Ann M. Veneman today announced the release of a proposed rule to implement the new Conservation Security Program (CSP) designed to reward the best conservation stewards of the most environmentally sensitive areas in targeted watersheds.  For more information, go to: http://www.usda.gov/news/releases/2003/12/0425.htm

USDA Signs Agreements with Three New Tribal Conservation Districts

Washington, Dec. 17, 2003—During the first Annual National Tribal Conservation District Conference, held recently in Las Vegas, Nev., the U.S. Department of Agriculture commemorated the addition of three new Tribal conservation districts.  USDA recently signed mutual agreements with the following Tribes that bring the total number of Tribal conservation districts to 26 in 11 states…  For more information, go to:  http://www.nrcs.usda.gov/news/releases/2003/tribal.html

EPA and Army Corps State Wetlands Position Washington, D.C. 

December 16, 2003 - “President Bush, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) today reiterated the Administration's commitment to the goal of "no net loss" of wetlands in the United States.  EPA and the Corps announced that they would not issue a new rule on Federal regulatory jurisdiction over isolated wetlands.”  For more information, go to:  http://yosemite.epa.gov/opa/admpress.nsf

Remarks by Agriculture Secretary Ann M. Veneman Regarding the Conclusion of the U.S.-Central America Free Trade Agreement (CAFTA)

December 17, 2003 - “The United States and four Central American countries – El Salvador, Guatemala, Honduras and Nicaragua – today concluded a free-trade agreement that further advances trade liberalization and expands economic opportunities for America’s farmers, ranchers and exporters.”  For more information, go to:  http://www.usda.gov/news/releases/2003/12/0426.htm

See a related story in Volume V, Issue 42 / Dec. 10, 2003 in the Archives Section of this website.

Bills Introduced in the Senate: December 15-19, 2003

Bills Introduced in the House: December 15-19, 2003

Federal Register Notices:  December 15-19, 2003

EPA.  Notice of the Availability of the Final Document for the U.S.- Mexico “Border 2012” Program.  Notice.  The U.S. Environmental Protection Agency announces the availability of the Border 2012: U.S.-Mexico Environmental Program Framework Document.  “Border 2012” is a 10-year, binational, results-oriented, environmental program for the U.S.-Mexico border region, which has been developed by the U.S. EPA and SEMARNAT, Mexico's Secretariat of Environment and Natural Resources.  Dated: December 10, 2003.  FR  12/16/03  p.70012

HOMELAND SECURITY.  Emergency Preparedness and Response Directorate.  FEMA.  Changes in Flood Elevation Determinations.  Interim rule.  This interim rule lists communities [in Texas and New Mexico] where modification of the Base Flood Elevations (BFEs) is appropriate because of new scientific or technical data.  Any person may request changes to the modified BFEs during the 90-day period following the date of the second publication of these changes in a newspaper of local circulation.  FR  12/16/03  p.69959

INTERIOR.  Office of the Secretary.  National Invasive Species Council.  Invasive Species Advisory Committee; Request for Nominations.  Nominations must be received by January 15, 2004.  FR  12/16/03  p.70026

EPA.  Significant New Uses of Certain Chemical Substances.  Direct final rule.  EPA is promulgating significant new use rules (SNURs) under section 5(a)(2) of the Toxic Substances Control Act (TSCA) for 65 chemical substances which were the subject of pre-manufacture notices (PMNs) and subject to TSCA section 5(e) consent orders issued by EPA.  The effective date of this rule is February 17, 2004, without further notice, unless EPA receives adverse or critical comments, or notice of intent to submit adverse or critical comments before January 16, 2004.  FR 12/17/03  p.70155

EPA.  Exposure Modeling Work Group; Notice of Public Meeting.  Notice.  The Exposure Modeling Work Group (EMWG) will hold a 1-day meeting on January 6, 2004. This notice announces the location and time for the meeting and sets forth the tentative agenda topics.  FR 12/17/03  p.70247

INTERIOR.  Bureau of Land Management.  Notice of Realty Action; Recreation and Public Purposes (R&PP) Act Classification; Idaho.  Notice of realty action.  Jerome County, Idaho has applied for an R&PP lease on public lands along the north rim of the Snake River Canyon for recreation purposes.  Dated: October 20, 2003.       FR 12/17/03  p.70285

EPA.  Notice of Request for Initial Proposals (IPs) for Projects To Be Funded From the Water Quality Cooperative Agreement Allocation (CFDA 66.463--Water Quality Cooperative Agreements).  Notice.  EPA is soliciting Initial Proposals (IPs) from States, Tribes, local governments, universities, non-profits, and other eligible entities interested in applying for Federal assistance for Water Quality Cooperative Agreements under the Clean Water Act (CWA) section 104(b)(3).  EPA Headquarters intends to award an estimated $3.5 million to eligible applicants through assistance agreements ranging in size from $10,000 up to $500,000.  EPA will consider all IPs received on or before 5 p.m. Eastern Time, February 17, 2004.  FR 12/17/03  p.70502

INTERIOR.  Fish and Wildlife Service.  Endangered and Threatened Wildlife and Plants; 90-Day Finding for a Petition to De-list the Preble's Meadow Jumping Mouse in Colorado and Wyoming.  Notice of 90-day petition finding.  We find that the petition and additional information in our files did not present substantial scientific or commercial information indicating that delisting may be warranted.  The Preble's meadow jumping mouse … may be dependent upon some amount of open water.  Loss of riparian habitats and other factors associated with urbanization appear to be the major threat to the species.  FR 12/17/03  p.70523

INTERIOR.  Fish and Wildlife Service.  Aquatic Nuisance Species Task Force Mississippi River Basin Panel Meeting.  Notice of meeting.  The Mississippi River Basin Regional Panel will meet on January 8 and 9, 2004.  Minutes of the meeting will be available for public inspection during regular business hours, Monday through Friday.  FR 12/17/03  p.70529

AGRICULTURE.  Forest Service.  Payette National Forest, Krassel and McCall Ranger Districts, Idaho; and Boise National Forest, Cascade Ranger District, Idaho; South Fork Salmon River Sub-basin Noxious Weed Management.  Notice of intent.   The USDA Forest Service will prepare an environmental impact statement (EIS) for management of noxious and invasive weeds in the South Fork Salmon River (SFSR) Sub-basin.  The analysis area includes headwater streams to the Salmon River, and the sub-basin is immediately adjacent to and upstream of the Frank Church River of No Return (FC-RONR) Wilderness.  Comments must be received by January 19th, 2004. The Draft EIS is expected in October 2004, and the Final EIS is expected in April 2005.  FR 12/17/03  p.70846

INTERIOR.  Office of Self-Governance and Self-Determination.  Office of the Assistant Secretary--Indian Affairs; Application Deadline for Self-Governance in 2005.  In this notice, the Office of Self-Governance and Self- Determination (OSG) establishes a March 1, 2004, deadline for tribes/consortia to submit completed applications to begin participation in the tribal self-governance program in fiscal year 2005 or calendar year 2005.  Completed application packages must be received by March 1, 2004.  FR 12/17/03  p.70520

AGRICULTURE.  Animal and Plant Health Inspection Service.  Salt cedar; Availability of an Environmental Assessment.  Notice of availability and request for comments.  We are advising the public that the Animal and Plant Health Inspection Service has prepared a draft environmental assessment relative to the control of salt cedar (Tamarix spp.).  The draft environmental assessment considers the effects of, and alternatives to, the release of a non-indigenous leaf beetle, Diorhabda elongata, into the environment to reduce the severity of salt cedar infestations in 14 Western States.  We will consider all comments that we receive on or before January 20, 2004.  FR 12/18/03  p.70755

INTERIOR.  Bureau of Land Management.  Notice of Availability of the Draft Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the Imperial Irrigation District's Desert Southwest Transmission Line Project, California.  Notice of availability.  This project may involve an amendment to the applicable BLM land use plan: The California Desert Conservation Area (CDCA) Plan of 1980, as amended.  Comments will be accepted until 90 days have elapsed after publication of a notice of availability of this document, in the Federal Register, by the EPA.  FR 12/19/03  p.70832