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Home My WebLink About19910326 Ver 1_Report_19940330Property Takings t; d; r? I IT C 6(- V ,-wkA11_1 C A6 M.? IL e need for a less encompassing ;ection 404 should be expanded whether any of these activities the 404 program with EPA by called H.R. 350 "a balanced icreases protection of wetlands. ! with the legislation because it ;es. The bill also addresses ers Union representative ling reauthorization bills. "We properly or we will see tidual states," Richard said. ff one of its highest priorities, Laiicu to define mandatory requirements of state programs and provide funding. Substantial additional funding is required to implement expanded nonpoint source controls, Moyer said. "Critics will call a revised section 319 program an unfunded mandate," he warned. "We believe that if Congress strengthens polluted runoff mandates and raises the priority of solving this problem, then funding will be forthcoming." EPA Assistant Administrator for Enforcement Steve Herman, U.S. Public Interest Research Group attorney Carolyn Hartman, and Hal Bozarth, executive director of the Chemical Industry Council of New Jersey, also testified on clean water enforcement issues. In Lawsuit Challenging Extent Of Coastal Protection CLINTON ADMINISTRATION STRONGLY SUPPORTS CZMA INTERSTATE REVIEW The Clinton administration has taken its strongest stance to date in support of coastal states' rights to review and object to federally permitted activities conducted in adjacent or upstream states. The administration is strongly urging a federal court to dismiss a state's lawsuit that challenges such interstate review under the Coastal Zone Management Act (CZMA). If the administration position is successful, states would have the authority to challenge water projects hundreds of miles outside their borders. The administration's court arguments come as the Commerce Department's National Oceanic & Atmospheric-Administration (NOAH) -- which implements CZMA mandates -- begins first-time consideration of a.state's interstate objection under the statute. The final legal outcome of the case, which some sources say could be litigated all the way to the Supreme Court, has potentially broad implications for federally permitted projects upstream from approved state coastal zones. . For, example, opponents of such interstate reviews argue that it would allow coastal states such as Louisiana the right to review and potentially veto all federally permitted activities that take place on the Mississippi River. However, proponents of the review say absence of that authority puts their coastal areas at risk from upstream projects that would not otherwise be compelled to consider downstream impacts. _ The issue is being highlighted by the state of North Carolina's objection to a proposal by Virginia Beach, Va. to withdraw 60-million gallons of drinking water per day from the mutually shared Lake Gaston. North Carolina has long argued that the 85-mile long pipeline project would have "devastating economic and environmental impacts" on Lake Gaston and to the Roanoke river, which flows from Virginia through North Carolina to the Atlantic Ocean. North Carolina officials have also maintained that the project is inconsistent with its CZMA'coastal plan and petitioned for a review of the project under section 307(C)(3)(A) of the statute, which is known as the consistency provision. The Commerce Department, under both the Bush and Clinton administrations has issued conflicting opinions on whether the CZMA -allows for interstate consistency reviews, -with both administrations `22 WATER POLICY REPORT -,March 30, 1994 Coastal Protection alternately supporting and opposing interstate consistency review. Most recently, Commerce Dec. 16, 1993 reversed an earlier Clinton administration opinion against interstate review after the Department of Justice withdrew its legal opinion on the matter. This prompted North Carolina to drop its lawsuit against the government, but quickly brought legal action against the government from Virginia Beach (Wate_ r policy Report . Jan. 19, p15). In the most recent case -- City of Virginia Beach, Va. v. Department of Commerce, et al. (No. 2:93cv1232 in the U.S. District Court for the Eastern District of Virginia) -- Virginia Beach is asking the court to declare Commerce's Dec. 16 decision unlawful and void, and to uphold the Commerce Department's 1992 decision that terminated North Carolina's initial consistency review. ,However, the federal government is asking 'the court to either dismiss the case outright or summarily rule in its favor. In a March 18 brief, the government calls Virginia Beach's suit "premature," says the court has no jurisdiction in the case, and argues that the "language of the CZMA supports" the most recent government interpretation of interstate consistency reviews. The government brief -- which is supported by co-defendant and intervenor North Carolina, as well as by 10 other coastal states which intervened as friends of the court -- in calling for dismissal of the case, argues that judicial action is premature because ongoing administrative procedures could render the outcome of the judicial proceedings moot. In fact, while Virginia Beach characterizes North Carolina's objection to the pipeline project as a "veto," Commerce will ultimately decide through this administrative process whether the project is consistent with the objectives of the CZMA. If Commerce were to disagree with North Carolina's objection, "this case would be moot," states the brief. The brief states that if the court fails to dismiss the case, it should grant summary judgement in favor of the government because the "plain language," policies, and legislative history of the CZMA and its consistency provisions make the department's interpretation "reasonable and worthy of judicial deference." It also notes that the Virginia Beach interpretation of "enforceable policies" would preclude in-state consistency reviews of activities that take place outside of the coastal zone. The district court will hold a hearing April 8 to consider the government motion for dismissal and cross motions for summary judgement. A Virginia Beach official says it is doubtful that the court will dismiss the case, noting that the district court judge recognizes that the merits of the case need to be reviewed. This source adds that the case is centered on the "very straightforward, simple issue" of the legal interpretation of several paragraphs of a statute and its legislative history. The official says that because the government keeps "changing its mind" on its interpretation of the statute, "it's obvious the government doesn't know what the law is." An attorney closely following the case says the judge will probably not dismiss the case, but may hold off any judicial action on reaching the merits of the case until Commerce completes its review of North Carolina's objection. A North Carolina official declined to speculate on the outcome of the April 8 hearing, but sources on both sides of the issue say the final legal decision will likely be appealed to a higher court by the loser. Meanwhile, NOAA closed the consistency review March 10, and is now reviewing all documentation entered into the record (see related story). NOAA officials have said North Carolina's objection to the project will be reviewed under an expedited schedule with a decision expected by June 8. In First-Time Coastal Zone Plan A eal INTERSTATE CONSISTENCY REVIEW TO FOCUS ON WATER QUALITY IMPACTS Water quality impacts and drinking water needs will be key elements of a first-time federal agency review'bf a project being opposed by a neighboring state because it is allegedly inconsistent with its coastal management plan. The issue involves the state of North Carolina's objection to a pipeline project by Virginia Beach, Va. that would withdraw 60-million gallons of water per day from a mutually shared lake. North Carolina has fled a Coastal Zone Management Act (CZMA) objection to the project with the National Oceanic & Atmospheric Administration (NOAA), charging that the project river, and coast. The issue is important because it is helping to definedthevextent of acstate's right wn_ vie_w and object to projects' located in adjacent or upstream`states. ' ht to revew State's rights under section 307 C 3 A of the CZMA to object to projects located wholly in other states -has been subject to differing federal government interpretations of the statute under both the Bush and Clinton administrations. North Carolina's review rights in this case have also `been hotly contested by Virginia Beach,