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<br />. <br /> <br />. <br /> <br />. <br /> <br />Western States Water Council <br />Water Quality Committee <br /> <br />Washington, DC <br />March 28, 2006 <br /> <br />rehearing en bane which is the full court, the full 9th Circuit is being asked to reconsider the three <br />judge panel decision. We're just awaiting a decision on that. The reason why we wanted to <br />bring it up today is because a number of states are concerned about this decision and have <br />questions about the implication of the decision should it go into effect. <br /> <br />What will EP A do if the 9th Circuit decision goes into effect? <br /> <br />Linda Boornazian: EP A will use every possible avenue we have to continue to fight this. <br />The court has looked at the provisions we have and they have added in ESA. If we can appeal it, <br />we will proceed to do that. We will also seek a stay so that it is not automatically implemented <br />in 7 days. New construction would need a permit in 7 days. We will try to assure that it does not <br />occur. <br /> <br />Joan Card: What consequences to you see for other states In the West seeking <br />delegation? <br /> <br />Linda Boornazian: You would need to look within your own state. We will look at the <br />standards the same way we have always looked at it. <br /> <br />Joan Card: Does that mean that the states would be expected to consult with the Services? <br /> <br />Linda Boornazian: We consult with the Services. But it is not a formal consultation. <br /> <br />Joan Card: Does that mean a BiOp would be offered? <br /> <br />Linda Boornazian: We have not come to that point yet. <br /> <br />Stephen Bernath: This whole issue of standards with ESA and with the trust <br />responsibility EP A has with tribes... there is a federal agreement that was put together years ago. <br />This is another indication about how its not quite working the way it needs to. Another example <br />is we issued a draft storm water permit, about 6 months ago and we got like a 50 page letter from <br />the federal services about how its not good enough. <br /> <br />Paul Frohardt: Water quality standards approval is a federal action that's required under <br />the Act. NPDES context - we've talked about the fact the ESA should not be an issue. <br /> <br />Denise Keehner: You've got it right. The national consultation on the 304(a) criteria was <br />originally seen as a way of expediting the criteria. Example given about diazinon. Cyanide is <br />turning up the exact same issues. <br /> <br />9 <br />