The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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Issue #17 soil, site investigations, and emergency closure of some geo- thermal exploration wells. EPA estimates that it may cost $40 million more to complete the remaining cleanup activities. The property is part of the former Sulphur Bank Mercury Mine and is owned by Bradley Mining Company and Worthen Bradley Trust. Mining activities at the site began in 1865 and continued off and on until the site was abandoned in 1975. Mercury ore was the primary product after the site was initially mined for sulfur. The remaining waste piles contain heavy metals including mercury, arsenic, and antimony and are the source of mercury polluting the local ground and surface water. The site also includes an open pit mine known as the Herman Impoundment where acidic water contaminated with heavy metals has accumulated. The site has been on the National Priorities List since 1990. The impact of contamination from the mine on the local environment has been documented primarily through the bioaccumulation of mercury found in plants, animals, and soils in the nearby Clear Lake ecosystem. California has issued fishing advisories for Clear Lake due to the high mercury levels. For info: Larry Bradfish, EPA Region 9, email: bradfishlarry @epa.gov. CWA PUBLIC NOTICE US GENERAL PERMITS COURTS SPLIT On June 13, 2005, the 7th Circuit Court of Appeals in Texas Independent Producers & Royalty Owners Association (TIPROA), et al. v. EPA (Case NOs. 03 -3277, et al.) held that the CWA only requires EPA to seek public participation during the development of the General Permit (NPDES General Permit for stormwater discharges from construction activities). The court explained the general permit system: with "a general permit, the EPA issues a permit for specific types of activities and establishes specific rules for complying with the permit. Then, rather than apply for an The Water Report individual permit, operators must file a Notice of Intent ( "NOI ") stating that they plan to operate under the general permit, and absent a negative ruling by the EPA, discharges that comply with the terms of the general permit are automatically authorized." Id. at 3. The court decided that "NOIs and SWPPPs [Storm Water Pollution Prevention Plans] are not permits or permit applications and therefore the CWA's public notice and hearing requirements do not apply." Id. at 28. The 7th Circuit's decision is in apparent conflict with decisions in two other appellate courts: Waterkeeper Alliance Inc., et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005) and Environmental Defense Center, Inc. et al. v. EPA, 344 F.3d 832 (9th Cir. 2003). The appeals courts in those cases decided that NOIs and SWPPs are subject to public participation requirements. Waterkeeper involves concentrated animal feeding operations (CAFOs), while EDC involved municipal separate storm sewer systems (MS4s). Agriculture industry officials are supposedly reviewing their options to appeal Waterkeeper, particularly in light of the recent TIPRDA holding. The split between the three circuit courts may push the US Supreme Court to review the case if it is appealed. See TWR #13 and #15, Water Briefs regarding the Waterkeeper case. For info: TIPRO decision: 7th Circuit website: www.ca7.uscourts.gov /fdocs/ docs.fwx; Waterkeeper decision: http:// caselaw.lp.findlaw.com/scripts/ getcase.pl ?court= 2nd &navby = title &v 1= Waterkeeper +Alliance WATERSHED PROTECTION US EPA WEBCAST On June 22, EPA's Watershed Academy sponsored its first -ever Webcast featuring Tom Scheuler with the Center for Watershed Protection. The seminar, entitled The Eight Tools of Watershed Protection in Developing Areas, attracted more than 550 participants from 40 States, the Virgin Islands, and Puerto Rico, with people participating via streaming audio or phone lines, and viewing the PowerPoint presentation on the Internet. Scheuler explained the effects of impervious cover and offered tools that communities and others can use to minimize its effects on water resources, such as buffets and conservation design strategies. The entire presentation can be viewed along with other archived seminars at the Clu -In website. For info: EPA Clu -In website: www.clu- in.org /conf /tio/ watershedtools_062205 /; Watershed Academy website: www.epa.gov/ owo w /watershed /wac ademy/ COLUMBIA RIVER SPILLS NW FAST TRACK APPEAL Litigation has moved onto a fast track concerning operation of the Federal Columbia River Power System ( FCRPS) following US District Court Judge Redden's June 10 order granting plaintiffs' preliminary injunction request. The order calls for a regime of additional summer spill and remanded NOAA Fisheries 2004 Biological Opinion on operation of FCRPS for salmon and steelhead. The order specifically requires the Corps of Engineers to provide spill of all water in excess of that required for station service from June 20, 2005 through August 31, 2005 at the Lower Granite, Little Goose, Lower Monumental and Ice Harbor Dams on the lower Snake River, and to spill all flows above 50,000 cubic feet per second at McNary Dam on the Columbia River from July 1 through August 31. The June 10 order can be viewed at the NOAA website listed below. See TWR #16 regarding Judge Redden's May 26 ruling invalidating NOAA Fisheries' 2004 Biological Opinion. The federal defendants and the Bonneville Customers Group immediately moved to stay the injunction order during their appeal, but the 9th Circuit Court of Appeals on June 21 denied their motions for a stay of the spill operations. The federal agencies were seeking to rely, instead, on their plan to barge salmon downstream below the lowest dam on the system, rather than relying on spill, The federal defendants are proceeding with an appeal of the decision. The 9th Circuit's June 21 order set a briefing schedule for the 28 Copyright@O 2005 Envirotech Publications; Reproduction without permission strictly prohibited.