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<br />Northwest, and the federal government's related efforts
<br />to comply with the Endangered Species Act (ESA). It
<br />notes the federal argument that the National Marine
<br />Fishery Service (NMFS) "did a remarkable job given
<br />the limited scientnic information available, that NMFS
<br />fully considered all relevant information, and that
<br />criticisms [of NMFS's actlonsj,..are...scientnic disputes.
<br />beyond the purview of Judicial review."
<br />
<br />The decision, however, takes exception with this
<br />view, After a lengthy analysis of factors Involved in
<br />NMFS's decisionmaklng, the court held that the NMFS
<br />biological opinion amounted to an abuse of the
<br />agency's discretion, The court said: "NMFS has
<br />clearly made an effort to create a rational, reasoned
<br />process for determining how the action agencies are
<br />doing in tho;r efforts to save the listed salmon species.
<br />But the process is seriously, ~significantly' flawed
<br />because It is too heavily geared toward a status quo
<br />that has allowed all forms of river activity to proceed In
<br />a deficit situation - that is, relatively small steps, minor
<br />improvement and adjustments - when the situation
<br />literally cries out for a major overhaul. Instead of
<br />looking for what can be done to protect the species
<br />from jeopardy, NMFS and the action agencies have
<br />narrowly focused their attention on what the
<br />establishment is capable of handling with minimal
<br />disruption. "
<br />
<br />The court also said: "Federal defendants are under
<br />no legal obligation to listen and respond to salmon
<br />plans from every corner of the Northwest, but the ESA
<br />does impose substantive obligations with respect to
<br />the agency's consideration of significant information
<br />and data from well-qualified scientists such as the
<br />fishery's biologists from the states and tribes." The
<br />judge ordered a re-initiation of consultations consistent
<br />with his findings. which will require a redrafting of
<br />NMFS's biological opinion at issue before the court
<br />and a similar opinion for the yesrs 1994-SB released
<br />after the case went to trial, At an April 8 status
<br />conference, the judge approved a settlement plan that
<br />will involve state, federal, and tribal officials in
<br />reworking the biological opinion.
<br />
<br />Idaho Governor Cecil Andrus called the decision "a
<br />stinging indictment of barging and other weak
<br />measures that federal agencies for years have
<br />employed in a vain effort to protect salmon
<br />populations." Environmentalists praised the ruling, one
<br />calling it "a slap upside the head" with respect to the
<br />
<br />status quo. Bruce Lovelin, President of the Columbia
<br />River Alliance for Fish, Commerce, and Communities,
<br />said the decision "turns us in the opposite direction
<br />from the way our region has been headed in its
<br />pursuit of a comprehensive salmon recovery plan,..,
<br />Repercussions will be feit throughout the Northwest,
<br />affecting electric rate payers....[and] communities
<br />economically dependant on the river in terms of
<br />irrigation, recreation and resident fish and wildlne."
<br />
<br />.
<br />
<br />WATER QUAlITYn.rTIGATlON
<br />
<br />Clean Water Acl/Ground Water
<br />
<br />A Colorado federal district court decision, now on
<br />appeal to the Tenth Circuit, held that the CWA's
<br />prohibition against th,a discharge of pollutants inlo
<br />"navigable waters" includes "discharges which reach
<br />'navigable waters' through ground water," Sierra Club
<br />v. Colorado Refining Co., 838 F. Supp. 1428 (D. Colo,
<br />1993). The case arose when the Sierra Club alleged
<br />that the operations of the Colorado Refining Company
<br />which have resuited In "011 spills, pipeline and tank
<br />leaks, and other releases at the refinery site," have
<br />caused "large quantities of petroleum products and
<br />related compounds...to enter the soils and ground
<br />water beneath the refinery." Sierra Club's complaint
<br />continued, "petroleum products and related
<br />compounds released In this manner are discharged
<br />with the ground water into Sand Creek." The refining
<br />company moved to have the case dismissed because
<br />the prohibition against pollutant discharges into
<br />navigable waters under CWA Section 303 does not
<br />extend to discharges Into ground water.
<br />
<br />.
<br />
<br />The district court noted that "the Tenth Circuit has
<br />chosen to Interpret the terminology of the [CWA]
<br />broadly...." With this In mind. the court analyzed
<br />opinions Involving "Isolated/non-tributary ground
<br />water" and "tributary ground water." The court found
<br />that discharges to "tributary ground water" could
<br />eventually enter surface water, and thus the CWA
<br />prohibition of the discharge of pollutants into
<br />"navigable waters" could include discharges that seep
<br />Into ground water and then migrate Into "navigable
<br />waters."
<br />
<br />Oral argument on the appeal is scheduled for May
<br />16, If left In place, and broadly construed, the
<br />decision could have implications for mining, logging,
<br />agricuitural, and other activities,
<br />
<br />.
<br />
<br />The WESTERN STATES WATER COUNCIL is an organization of representatives appointed by the Governors of
<br />member states - Alaska, Arizona, California, Colorado, Hawaii, Idaho. Nevada, New Mexico, North Dakota, Oregon,
<br />South Dakota, Texas, Utah, Washington, and Wyoming, and associ8Ie member states Montana and Oklahoma.
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