Other News of Note

Martha L. Noble
mnoble@msawg.org

Legislation to Expand Clean Water Act Jurisdiction Over Small, Isolated Waters
Bills introduced in July in both the House and the Senate would expand Clean Water Act (CWA) jurisdiction to cover small, non-navigable waters that the Supreme Court ruled were beyond CWA jurisdiction in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 121 S. Ct. 675 (2001). Reps. James Oberstar (D-Minn.) and John Dingell (D-Mich.) introduced H.R. 5194 on July 24, 2000. Designated the "Clean Water Authority Restoration Act of 2002" the measure would replace the term "navigable waters" with "waters of the United States" and would define that term to include "all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes ... to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution." Sen. Russ Feingold offered a similar bill (S. 2780) in the Senate.

Final Klamath Biological Opinions Released
The U.S. Fish and Wildlife Service issued a final biological opinion on May 31, 2002, finding that the Klamath Basin irrigation project is likely to jeopardize the continued existence of Lost River and shortnosed suckers and specifying "reasonable and prudent alternatives" (RPAs) to diminish the likelihood of jeopardy. The National Marine Fisheries Service issued a similar report concluding that the project is likely to jeopardize the continued existence of coho salmon and adversely modify its designated critical habitat. The Bureau of Reclamation has objected to the jeopardy findings, while announcing that it will provide water to Klamath Basin farmers this irrigation season in accordance with the RPAs. Copies of the final opinions may be obtained by calling the Bureau of Reclamation's Klamath Basin Area Office at 541/883-6935.

Water Quality Trading
EPA released a draft policy on May 15, 2002, describing how industrial operations, municipalities, farms, and other sources might trade water pollution credits to achieve Total Maximum Daily Loads (TMDLs) or to improve water quality prior to TMDL development. The policy would not directly establish a trading program, but is designed to "signal EPA support for soundly designed water quality trading programs developed by States and Tribes." EPA's Proposed Water Quality Trading Policy (April 25, 2002) and additional information are available at http://www.epa.gov/owow/watershed/trading/tradingpolicy.html.

NAS Study on AFO Air Emissions
The interim report of an ongoing National Academy of Sciences study concludes that EPA and USDA efforts to address air pollution problems associated with Animal Feeding Operations (AFOs) face significant challenges. The report concludes that it will be extremely difficult for EPA to model and estimate air emissions from AFOs for purposes of any regulatory program, because the operations vary dramatically in size, species of animal, farming practices, geography, composition of waste produced, and weather to which they are subject. A copy of the interim report can be viewed through the National Academies Website at http://www.nap.edu/catalog/10391.html.

Aquatic Pesticides in Irrigation Canals
EPA issued an interpretive statement on March 29, 2002, clarifying that application of aquatic pesticides in accordance with label instructions to maintain irrigation conveyances does not require a Clean Water Act discharge permit. EPA's statement responds to confusion that arose in the wake of the Ninth Circuit's decision in Headwaters, Inc. v. Talent Irrigation District, which held that an irrigation district was required to obtain a Clean Water Act permit for a pesticide application under the facts at issue in that case. See 243 F.3d 526 (9th Cir. 2001). EPA's statement solely relates to irrigation-related pesticide use, which EPA explained is within the scope of the Clean Water Act's exemption for irrigation return flows. EPA has not yet explicitly addressed how the Talent ruling may affect other pesticide use that occurs in accordance with pesticide label requirements. The EPA March 29 statement is available at http://www.epa.gov/npdes/pubs/talentfinal.pdf.

NAS Study on Regulation of Transgenic Plants
A National Academy of Sciences committee released a report in February 2002 urging that the Department of Agriculture more thoroughly review the environmental risks of transgenic plants before approving them for commercial use. The report also recommends greater public and scientific community involvement in the approval process, as well as continued monitoring after approval of transgenic plants for commercial use. The committee found "that the transgenic process presents no new categories of risk compared to conventional methods of crop improvement but that specific traits introduced by both approaches can pose unique risks." Commenting that the potential risks of conventionally improved crops should be reevaluated, the committee found that "immediate regulation of conventional crops" is not recommended "for practical reasons." A copy of the report can be viewed at http://www.nap.edu/catalog/10258.html.

CAST Report on Relative Environmental Impact of Biotechnology-Derived Crops
A June report by the Council for Agricultural Science and Technology (CAST) concludes that the scientific literature indicate that "overall the currently commercialized biotechnology-derived soybean, corn, and cotton crops yield environmental benefits." Comparative Environmental Impacts of Biotechnology-derived and Traditional Soybean, Corn, and Cotton Crops (CAST, June 2002). The report also concludes that such crops do not pose environmental concerns unique to or different from those associated with crop varieties developed through conventional means. The report is available at http://www.cast-science.org/biotechnology/index.html#biotechcropsbenefit.