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Issue #21 CLEAN WATER ACT The Water Report US PESTICIDES INFO WA/OR/CA SUPREME COURT The US Supreme Court agreed on October 11 to accept two cases concerning federal jurisdiction over wetlands. The cases deal with the definition of federally protected wetlands and the scope of jurisdiction under the Clean Water Act (CWA). Jurisdiction questions have abounded since the "isolated wetlands" decision in 2001 in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC case). The two cases both originated in the 61" Circuit Court of Appeals in Michigan: Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004), cert. granted (U.S. Oct 11, 2005) (No. 04- 1034) and Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004), cert. granted (U.S. Oct 11, 2005) (No. 04- 1384). The Supreme Court will be grappling with issues of hydrological connection between a wetland and "navigable waters," the physical remoteness of wetlands to navigable waters, and the reach of jurisdiction under the Clean Water Act regarding actions that affect wetlands (fill and removal permits, etc.). The Supreme Court also accepted a third CWA case that deals with a separate issue. In S.D. Warren v. Maine Department of Environmental Protection (No. 04- 1527), the issue involves a "water quality certification" that is required before making "any discharge" of a "pollutant" into navigable waters. The issue arose in a Federal Energy Regulatory Commission license renewal proceeding for hydroelectric generating dams. This case may provide additional guidance regarding the law on waterway -to- waterway transference that was largely deferred by the Supreme Court in the Miccosukee case (South Florida Water Management District v. Miccosukee Tribe of Indians et al. (March 23, 2004). See Glick, TWR #2. For info: Richard Glick, Davis Wright Tremaine, 503/778 -5210 or email: rickglick@dwt.com JUDICIAL ORDER In an on -going case about the effect of pesticides on ESA listed fisheries, federal Judge John Coughenour ordered the Environmental Protection Agency on October 17"' to take a greater role in informing the public about potential harm to salmon. The recent order followed the January 2004 ruling by Judge Coughenour that banned the use of some pesticides within protective buffers along salmon streams in California, Washington and Oregon (with certain exceptions). The ban remains in place while EPA determines if these chemicals harm threatened and endangered salmon. See Beale, TWR #4 and Goldman, TWR #12. The EPA was ordered to send letters to pesticide retailers, distributors, and wholesalers in three states telling them they are responsible for notifying consumers about the dangers posed to salmon by the chemicals, which are widely available in garden and yard stores. Under the new order, EPA must send letters about the policy to retailers in urban areas with more than 50,000 people and provide stores with a list of the chemicals and the products that contain them. The retailers must post notices warning them about the potential danger to salmon. The warnings apply to pesticides containing the following seven ingredients: 2,4 -D, carbaryl, diazinon, diuron, malathion, triclopyr, and triflura- lin. These pesticides have been fre- quently detected in waterways near urban areas and are in products such as weed & feed products, Sevin, Bug B Gon Granules, malathion insect sprays, and combination slug and insect baits. Diazinon is not longer sold in urban markets. EPA must also list the informa- tion on its website. For info: Erika Schreder, WA Toxics Coalition, 206/ 632 -1545 x119; EPA website: www.epa.gov/oppfeadl/endanger/wtc/ index.html HAWAII DOT FINED HI STORMWATER VIOLATIONS Hawai'i DOT agreed to pay a fine of $1 million to resolve stormwater violations, as well as spending an estimated $50 million on compliance over the next five years. The US Department of Justice, the US Envi- ronmental Protection Agency, and the Hawai'i Department of Health reached the agreement with the Hawai'i Department of Transportation (HDOT) regarding Clean Water Act stormwater violations at highways and airports in Hawai'i. The settlement requires HDOT to undertake a variety of actions to improve management of stormwater runoff from its highways and airports. These actions include requiring HDOT to: update its existing program for management of its storm sewer system for highways on Oahu (includes improving removal of sediment and debris from roadsides and storm drain catch basins, reducing roadside erosion, and controlling other sources of pollution into its storm drainage system); institute new procedures for controlling stormwater at highway construction projects (better processes for the planning and design of pro- posed projects and increasing inspec- tions of contractors constructing projects on HDOT's behalf); improve management of stormwater at airports (enhanced program of inspections and enforcement against non - complying airport tenants). Violations of CWA's stormwater control requirements led the EPA to issue several orders against HDOT in 1999, 2000 and 2002. Inspectors from EPA and the Hawai'i Department of Health found that HDOT was significantly behind other state and local governments in meeting national and state stormwater require- ments. The agreement takes effect when signed by the District Court judge following the conclusion of a 30 -day public comment period. A copy of the consent decree lodged October 6 is available on the US DOJ website at: www.usdoj.gov/enrd/open.html For info: Ravi Sanga, EPA, 206/ 553- 4092 or email: sanga.ravi @epa.gov 22 Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited.