WATER, ENVIRONMENTAL, AND NATURAL RESOURCES LAW NEWSLETTER
Scott L. Campbell
♦ Dylan B. Lawrence
♦ Norman M. Semanko
♦ Andrew J. Waldera
THOUGH ODDS OF SUCCESS ARE LONG, SOME IN
and the EPA under the CWA by redefining the term
CONGRESS SEEK TO REIN IN EPA
“navigable waters” to include only permanently standing
Members of the United States House and Senate recently
and continuously flowing bodies of water directly
introduced legislation intended to curb EPA enforcement
tributary to navigable-in-fact waters, and navigable-in-
authority under the Clean Water Act (“CWA”). Though
fact waters. The Defense Act excludes CWA jurisdiction
the chances of the legislation passing are long, the
over ephemeral and intermittent streams, and prevents
proposed legislation is at least forcing conversation of
federal agencies from regulating or interpreting the
definition of “navigable waters” without prior Congressional authorization and oversight.
H.R. 4278—The Preserving Rural Resources Act
The Defense Act also contains express provisions
Representatives Altmire (D-PA) and Robert Hurt
reaffirming individual states’ primary authority over the
(R-VA) recently introduced the Preserving Rural
land and water within their boundaries, and it prohibits
Resources Act (“Act”). The Act seeks to reinforce and
federal agents from entering upon private property
protect the express agricultural and silvicultural
without prior landowner consent. Last, in an effort to
exemptions afforded under Section 404(f) of the CWA.
curb overzealous wetlands designations, the Defense Act
Farmers, ranchers, and foresters have long expressed
requires the government to pay double the cost of any
concern over regulatory encroachments by the Army
property value diminishment caused by regulatory
Corps of Engineers (“Army Corps”) and the EPA
restrictions imposed upon private property (e.g.
narrowing the scope of the CWA’s exemptions.
determination that jurisdictional wetlands exist, thereby
The statutory exemptions excuse permitting
precluding the use and development of that wetland
requirements for a variety of activities, including the
discharge of dredged or fill material from a variety of
U.S. SUPREME COURT RULES AGAINST EPA IN
native farming and ranching activities (such as plowing,
FAVOR OF IDAHO COUPLE
seeding, cultivating, and harvesting); a variety of irrigation activities (such as the construction or
In Sackett v. EPA
, the United States Supreme Court
maintenance of stock ponds and irrigation ditches); and
ruled that Mike and Chantell Sackett of Priest Lake,
the construction of farm and forest roads.
Idaho are entitled to seek preenforcement review of an EPA jurisdictional wetlands determination that:
Bob Stallman, President of the American Farm Bureau
(1) precluded the Sackett’s from building a home; and
Federation (“AFB”), calls the regulatory encroachments
(2) that carried a potential $37,500 per day fine for
a “critical issue.” AFB cites increased regulatory
failure to comply with a cease and desist order.
paperwork, compliance costs, and restrictions on land use as running contrary to the purpose and spirit of the
In 2007, after obtaining all necessary local and county
long-standing agricultural and silvicultural exemptions.
permits and grading a lot for purposes of building their home, EPA issued the Sacketts a cease and desist order
S. 2122—The Defense of Environment and Property
asserting that their residential lot comprised wetlands
Act of 2012
protected under the Clean Water Act (“CWA”). In
In parallel with the Preserving Rural Resources Act,
addition to ceasing all construction, the EPA order
Senator Rand Paul introduced the Defense of
required the Sacketts to remove fill and gravel and to
Environment and Property Act of 2012 (“Defense Act”).
restore the lot as near as possible to its native state.
The Defense Act largely seeks to codify the plurality
Removing the fill dirt and gravel alone cost the Sacketts
more than they initially paid for the property.
, 547 U.S. 715 (2006). Specifically, the Defense
After hiring their own wetlands consultant who
Act seeks to address the jurisdiction of the Army Corps
disagreed with the EPA’s wetlands determination, the
Nothing contained in this newsletter should be construed or relied upon as legal advice or the legal opinion of the authors or
Moffatt, Thomas, Barrett, Rock & Fields, Chartered, on any specific facts or circumstances. The information contained in this newsletter is current
as of the date of this newsletter, but changes in the law may occur at any time subsequent and the newsletter may not reflect the changes or
modifications in the law. The contents of this newsletter are intended for general information purposes only. You are urged to consult an attorney
concerning your own situation and any specific legal questions you may have.
Sackett’s found themselves without the ability to
THE GREATER YELLOWSTONE COALITION MULLS
challenge the EPA’s decision unless and until the agency
POTENTIAL LAWSUIT AGAINST J.R. SIMPLOT CO.
brought a formal enforcement action against them first.
OVER SELENIUM STANDARDS
Both the Federal District Court for the District of Idaho
J.R. Simplot Co. (“Simplot”) has filed an application for
and the Ninth Circuit Court of Appeals held that the
the creation of site-specific water quality standards under
CWA precluded preenforcement review of the EPA’s
the Clean Water Act in Crow and Sage Creeks in
compliance order. Under the courts’ rationale, the EPA
southeast Idaho. Existing selenium discharge standards
could actively restrict use of the Sackett’s property
in the creeks dictate, in part, the scope of remediation
without the Sacketts having the ability to challenge the
efforts stemming from the Company’s “Smoky Canyon”
EPA determination in court. Thus, the Sacketts were left
with two options: (1) comply with the EPA’s order; or (2) disobey the order, continue with their construction,
The application, supported by scientific research
and face potential civil and criminal penalties of up to
commissioned by the Company, contends that the creeks
are capable of handling greater Selenium loads than are presently allowed under current standards. The
In overruling the EPA and the Ninth Circuit, the U.S.
application requests that site-specific standards be
Supreme Court decided that the Sacketts do have the
developed based upon fish tissue concentrations of the
ability to seek review of the EPA’s wetlands
element rather than water sample-based concentrations.
determination short of the EPA first bringing a judicial action of its own enforcing the terms of its
Seizing upon the picture of a two-headed fingerling trout
administrative compliance order. The Court’s decision
spawned from cutthroat trout egg samples taken from a
has potentially far-reaching implications because the
tributary of Crow Creek during the course of the
EPA issues approximately 3,000 compliance orders
Company’s research, the Greater Yellowstone Coalition
is weighing possible legal action should the Company’s application for site-specific standards succeed. While
FEDERAL DISTRICT JUDGE UPHOLDS NMFS-
the Simplot research concedes the existence of the
REQUIRED NO SPRAY BUFFERS REGARDING THE USE
mutant fish, the report also notes the production of
OF MALATHION, DIAZINON, AND CHLORPYRIFOS
similar deformities in a control group of hatchery eggs
NEAR SALMON-BEARING STREAMS
used in the study with no connection to the creeks.
In ruling against pesticide manufacturers Dow AgroSciences, Makhteshim Agan, and Cheminova,
FDA RESTRICTS USE OF CERTAIN ANTIBIOTICS IN
Judge Alexander Williams, District of Maryland, upheld
and applied a 2002 ruling requiring EPA to confer with
The Federal Drug Administration (“FDA”) is restricting
the National Marine Fisheries Service (“Service”) over
the use of cephalosporins (a class of antibiotics including
the use of several different pesticides in the vicinity of
the name brands of Cefzil and Keflex) in cattle, swine,
chickens and turkeys over concerns that use of the drugs in food supply livestock contributes to drug-resistant
Among several other pesticides, the Service requires
strains of infections in humans. The antibiotics are
EPA to enforce application buffers ranging between 500
routinely added to livestock feed to maximize animal
and 1,000 feet of salmon habitat for applications of
Malathion, Diazinon, and Chlorpyrifos depending upon whether the application is aerial or ground-based. The
In humans, cephalosporins are among the most common
ruling requires EPA to include application buffer
antibiotics prescribed to treat strep throat, bronchitis,
requirements on pesticide labels, and to enforce the same
urinary tract infections, and a wide range of skin
with respect to the above-referenced organophosphates.
infections. Surgeons also use the antibiotics to prevent infections before and after surgical procedures.
Food producers in Oregon, Washington, and Idaho are particularly concerned with the ruling given the quantity
According to the FDA, mounting data suggests
of ESA-listed salmon habitat located within those states.
agricultural applications of the antibiotics are promoting
According to the farm organization Oregonians for Food
the development of drug-resistant bacterial strains that
and Shelter, approximately 50 percent of Oregon’s
affect humans. The FDA contends that agricultural
production agriculture lands could be impacted by the
applications of the antibiotics represent an overuse of the
enforcement of pesticide buffer requirement.
drugs that is limiting their efficacy in human applications.
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Important information about your prescription benefits Effective July 1, 2013 Within the Prescription Drug List (PDL), medications are grouped by tier. The tier indicates the amount you pay when you fill a prescription. Your lower-cost options are found in Tier 1. Medications moving to a lower tier Medications may move from a higher tier to a lower tier, which can occur at any time
Neuhausen SL, Brummel S, Ding YC, Steele L, Nathanson KL, Domchek S, Rebbeck TR, Singer CF, Pfeiler G , Lynch HT, Garber JE, Couch F, Weitzel JN, Godwin A, Narod SA, Ganz PA, Daly MB, Isaacs C, Olopade OI, Tomlinson GE, Rubinstein WS, Tung N, Blum JL, Gil en DL. Genetic Variation in IGF2 and HTRA1 and Breast Cancer Risk among BRCA1 and BRCA2 Carriers. Cancer Epidemiol Biomarkers Prev. 201