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<br />Western States Water Council <br />Water Quality Committee <br /> <br />Sheridan, Wyoming <br />October 5, 2006 <br /> <br />. <br /> <br />I think it goes with what Bob was saying about trying to come to common ground together as <br />much as possible. <br /> <br />Rapanos Guidance Update <br /> <br />Rapanos has been at the highest levels in EPA, the Corps, DOJ and CEQ. As you know, it's <br />definitely changed the landscape on how we look at things. We haven't made a decision on the <br />rulemaking, but we know guidance can only go so far. We are trying to interpret the significant <br />nexus tests. In regards to a timeframe, there's concern on getting it out too early or too late. When <br />it's something as broad as this it's impacting all of our waters, not just wetlands. <br /> <br />Defenders of Wildlife Update re: Arizona's NPDES Delegation <br /> <br />EP A has a new deadline of October 23rd to decide whether they apply for certiori on behalf <br />of the United States or not. <br /> <br />Joan stated there was the denial for petition for rehearing in the 9th Circuit. A stay at the 9th <br />Circuit, allows Arizona to be status quo, pending the supreme court decision. A September 6th <br />petiti?,n ~ohr chert Hwas filBed ?IYd theAHom~ B~ilderls Associathio.n. On October ?th, AArri~ona fidl~dd ~ ufiwle . <br />agree WIt t e orne Ul ers . ssocmtlOn, p us gave t elr state perspectIve. Izona I n tIe <br />petition for cert per se. The third deadline was granted for the federal government. <br /> <br />Joan Card provided a briefbackground. In early 2000, Arizona was well into the process of <br />seeking the NPDES delegation - - about the 45h state to get the delegation, and so we were late in the <br />game. As part of that, there was a consultation between EP A and the Fish and Wildlife Service <br />about effects to threatened and endangered species as a result ofthe delegation from the 9th Circuit <br />to Arizona. That consultation was challenged by two environmental groups. It quickly got to the 9th <br />Circuit - - iIt basically bypassed the federal district court and went right to the 9th Circuit. The 9th <br />Circuit found the consultation sufficient because EP A and the Fish and Wildlife Service failed to <br />adequately address the indirect effect of no more Section 7 for permitting in Arizona, because <br />without EP A in the mix, there is no ESA requirement for Section 7 consultation. The environmental <br />groups believed that that was an effect that was significant and should have been analyzed from a <br />biological standpoint by the agencies. The 9th Circuit said it wasn't, and agreed with the NGOs, and <br />found that the consultation was insufficient and they vacated the delegation. That decision has not <br />been put into effect. So Arizona has been in status quo since August 2005. <br /> <br />Many people think it would be more likely that cert would be granted if the United States was <br />a party to the action. The question was asked if Arizona requested support from other states. <br /> <br />The filing Arizona made was called an amicus. Joan sais she didn't know if we were at leave <br />to do that because we were a party to the case. In my understanding, amicus comes into play once <br /> <br />. <br /> <br />14 <br />