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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., the 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. States, 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 DISCLAIMER: 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 LIVESTOCK
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. If you would like additional information regarding the topics covered, or if there are additional topics that you would like us to cover in upcoming newsletters, please contact Debby Long at (208) 345-2000 or [email protected], and she will connect you with the appropriate contact. In addition, please contact Ms. Long if you would prefer to receive the newsletter electronically, or if you would like to be removed from our mailing list altogether.

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