News & Updates
Conference of Western Attorneys General
September 6, 2023
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The New York Times Evaluates the Causes and Consequences of Disappearing Water
Global warming has focused concern on land and sky as soaring temperatures intensify hurricanes, droughts, and wildfires. But another climate crisis is unfolding, underfoot and out of view. Many aquifers that supply 90 percent of the nation’s water systems, and which have transformed stretches of America into some of the world’s farmland, are being severely depleted. These declines are threatening irreversible harm to the American economy and society.
The New York Times conducted a months-long examination of groundwater depletion, interviewing more than 100 experts, traveling the country, and creating a database using millions of readings from monitoring sites. The investigation reveals how America’s resource is being exhausted in much of the country, and in many cases, it won’t come back. Industrial farms and cities are draining aquifers that could take millenniums to replenish if they recover.
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ENDANGERED SPECIES ACT (ESA) |
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Lions, Tigers, Taxidermy, Arsenic, Political Squabbling, and the Endangered Species Act
The fate of the mounted lion, tiger, polar bear, and gorilla that have long greeted visitors entering South Dakota’s largest zoo is grim after arsenic was found to be widespread in the taxidermy collection, creating a raging debate about whether the more than 150 animals should be destroyed. Locals who grew up around them, who were in a hardware store, are fighting the mayor and zoo officials to keep the collection. They are buoyed by experts who say the arsenic risk is overblown, the mounts nothing short of art. The mayor and zoo officials believe reason and safety are on their side. But even if they can convince the town to get rid of the animals, they’ll have to navigate a web of federal and state laws.
The Endangered Species Act protects animals even in death, so the collection can’t be sold. Under federal law, they could be given to another museum. But state law stipulates that exhibits like this must remain within the state. In August, the results came back: 79% of specimens tested positive for detectable levels of arsenic, showing that the contaminated mounts included a jungle cat and monitor lizard. With protective gear, taxidermy can be moved safely despite arsenic, other steps can be taken to keep the public safe, including encasing taxidermy in glass. That protects them against temperature, humidity, and, of course, visitors licking them.
Some items are earmarked for the National Wildlife Property Repository near Denver, which stores a massive collection of seized wildlife items, including elephant tusks and crocodile skin purses. But the U.S. Fish and Wildlife Service, which operates it, won’t take any with arsenic. The ultimate decision rests with the City Council, which is scheduled to hear a report and then vote at September meetings.
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Efforts to Restore Endangered Red Wolves to the Wild
The red wolf’s journey from extinction in the wild to conservation and back to the brink has been swift and stunning. The only wolf species unique to the United States, Canis rufus once roamed from Texas to Long Island, New York. Today, the last wild populations, totaling about two dozen animals, are clinging to existence on two federal wildlife refuges in eastern North Carolina.
The U.S. Fish and Wildlife Service is preparing an updated recovery plan to ensure the species’ survival in the wild. But the plan counts on private landowners to tolerate the wolves, and history is not on the side of “America’s wolf.” After generations of killings, habitat loss, and pressure from human development, the red wolf was declared “threatened with extinction” under the Endangered Species Preservation Act of 1966. With the signing of the Endangered Species Act in 1973, the last known families were pulled from the coasts of Texas and Louisiana and placed in captive breeding programs. The species was declared extinct in the wild in 1980. By 1987, the captive population was considered robust enough to try to reintroduce Canis rufus to the wild. Populations were established at Alligator River Wildlife Refuge in North Carolina and later in the Great Smoky Mountains National Park. The mountain experiment was terminated due to low pup survival and failure to thrive, but the coastal population eventually grew from eight animals to about 120 in 2012.
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California Attorney General Leads Coalition in Calling for Company to Pay More and Sooner for Contaminating Americans’ Drinking Water Supply with Toxic PFAS
Leading a coalition of five attorneys general, California Attorney General Rob Bonta filed an amicus letter expressing strong concerns regarding 3M’s revised proposed class action settlement with public water suppliers. While 3M made several important concessions at the request of states led by Attorney General Bonta, 3M declined to pay more than the $10 billion to $12 billion set forth in the original proposed settlement, which falls far short of the amount needed to remediate the PFAS contamination caused by 3M to Americans’ drinking water supply. 3M also declined to pay the settlement amount more quickly, insisting that it be paid out over a decade — even while 3M’s own attorneys share concerns about bankruptcy considering its many PFAS and other liabilities. Although the revised proposed settlement would not apply to Attorney General Bonta’s lawsuit against 3M and other PFAS manufacturers filed on November 10, 2022, it could apply to certain California water systems if they do not choose to opt out of the settlement.
PFAS have been widely used in consumer products including food packaging, cookware, clothing, carpets, shoes, fabrics, polishes, waxes, paints, and cleaning products, as well as in firefighting foams designed to quickly smother liquid fuel fires. PFAS are stable in the environment, resistant to degradation, persistent in soil, and known to leach into groundwater. Joining Attorney General Bonta in filing the amicus letter are the attorneys general of Arizona, the District of Columbia, Pennsylvania, and Wisconsin.
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EPA Proposes Changes to CWA Section 404 Tribal and State Assignment and Administration Regulations
For the first time in nearly 35 years, the U.S. Environmental Protection Agency (EPA) has proposed the revision of regulations governing how Tribes and States assume responsibility for the administration of the Clean Water Act’s (CWA’s) Section 404 permitting program for discharges of dredged and fill material into waters of the United States (WOTUS). This advisory will briefly explain the background of EPA’s Section 404 Program before discussing the proposed modifications to EPA’s Section 404 Tribal and State program approval system, permit requirements, program operations, compliance evaluation and enforcement provisions, federal oversight, and other miscellaneous program components. The EPA is accepting comments on the proposals through October 13, 2023.
Section 404 of the CWA establishes a program regulating the discharge of excavated or rock, sand, dirt, and material into navigable waters. It requires a permit for discharges of dredged and fill material from a point source. Tribes and States can assume this authority and administer their programs when approved by EPA. Currently, only Michigan, New Jersey, and Florida administer their own Section 404 programs, and the U.S. Army Corps of Engineers (Corps or USACE) manages the other 47 States, all Tribal lands, U.S. territories, the District of Columbia, and specific waters within the above three states.
The Agency is proposing that the transfer of an approved Section 404 program to a Tribe or State would take effect 30 days after publication of the notice of EPA’s approval in the Federal Register, unless EPA and the Tribe or State have agreed on a later effective date, not to exceed 120 days from the date of notice in the Federal Register.
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U.S. Supreme Court Narrows the Scope of Clean Water Act
The U.S. Supreme Court in a major environmental decision, overturned the Environmental Protection Agency’s (EPA) definition of wetlands that fall under the agency’s jurisdiction, siding with an Idaho couple who’d said they should not be required to obtain federal permits to build on their property that lacked any navigable water. All nine justices agreed to overturn the 9th Circuit Court of Appeals’ ruling that endorsed the broad definition of waters of the United States, or WOTUS, the term for what falls under federal enforcement of the Clean Water Act. But they published four separate opinions that showed a 5-4 split in how far they would allow federal jurisdiction to extend, with the conservative majority ruling to significantly narrow federal agency power.
The EPA, Army Corps of Engineers, and various courts have held that waters of the United States can include tributaries to navigable waters and even dry land with an ecological connection to those tributaries. The inclusion in the statute of “navigable waters” means Congress was focused on the permanent lakes, rivers, streams, and oceans that are generally included in that definition, even if some wetlands can also be regulated under the law.
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The Interior and Agriculture Departments Announced a Settlement that Closes a Decades-Long Battle that Ended by Oil Lease Relinquished
A Louisiana oil and gas company has agreed to relinquish a drilling lease on public lands in Montana that is sacred to the Blackfeet Nation. Solenex LLC's founder bought the oil and gas lease in the Badger-Two Medicine area in 1982. The settlement, announced by the Departments of the Interior and Agriculture, closes a long legal battle that examined the legal right to develop a federal oil lease against a tribe’s attempt to protect historic lands. Forty-seven oil and gas leases in the Badger-Two Medicine area of the Lewis and Clark National Forest were awarded to potential developers in 1982. Because of the area’s importance to Blackfeet culture, however, Congress permanently withdrew the area from new oil and gas leasing in 2006. That move left in place the existing oil and gas leases, and Congress provided tax incentives to urge their owners to voluntarily relinquish the drilling rights. Eventually, all leases were settled and let go — except for roughly 6,000 acres owned by Solenex.
In 2016 the lease was ended, citing problems with how it was issued and sparking a lawsuit. U.S. District Court in 2018 ordered the lease reinstated because it had waited so long to decide whether drilling would be allowed before canceling the lease. In 2020, the U.S. Court of Appeals declared that there were no grounds to challenge Interior's decision. But the appeals court had only looked at a limited part of the legal argument, and last year the lease was again reinstated. The judge said Interior had to identify a defect with the original lease to justify canceling it. The new settlement agreement will finally nullify the lease. Lawyers for the company and the federal agencies said in the settlement that the process could take several months before completion.
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Montana Attorney General Appeals to Federal Board to Overturn BLM’s Bison Grazing Decision
Montana Attorney General Austin Knudsen called on a federal appeals board to overturn a Bureau of Land Management (BLM) final decision that locally opposed a change of use permit to allow bison grazing on several allotments in Phillips County. In an appeal filed, Attorney General Knudsen calls on the federal appeals board to overturn the BLM’s July 28, 2022, Notice of Final Decision authorizing American Prairie Reserve (APR) a general permit to graze in several allotments in northeastern Montana. The APR submitted its proposal to BLM in 2019 that would fundamentally alter the way it manages federal grazing allotments, transitioning from livestock to and requesting changes to authorized seasons of use and interior and exterior fencing.
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Michigan Attorney General Helps Secure Nearly 50% Rate Hike Reduction in Public Service Commission Settlement with Natural Gas Provider
The Michigan Public Service Commission (MPSC) approved a settlement in Michigan Gas Utilities Corporation’s (MGUC) rate increase request after Michigan Attorney General Dana Nessel, alongside the Citizens Utility Board of Michigan (CUB), intervened to secure a nearly 50% reduction in the requested rate increase from $19.1 million to $9.9 million as well as a reduction in the corporation’s return on equity from 10.4% to only 9.8%, which is the lowest in the state for investor-owned utilities. In March, MGUC filed this request to increase its gas rates by $19,114,362 along with a request for a 10.4% return on equity. If approved as filed, the rate increase for residential customers would have been approximately 11.76%. MGUC’s last rate increase was approved two years ago. Since taking office, the Attorney General has saved Michigan consumers more than $2.4 billion by intervening in utility cases before the MPSC.
More information on this case can be found on the Commission’s website under docket number U-21366.
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While concluding that the Indian Gaming Regulatory Act (IGRA) does not permit gaming compacts to shift jurisdiction from tribal courts to state court over lawsuits brought against tribes or tribal gaming enterprises alleging personal injury not directly caused by gaming activities, the federal court concludes it was barred from enjoining the injured party from pursuing his state court action under the terms of the Anti-Injunction Act and the abstention doctrine established in Younger v. Harris.
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Pursuant to the Clean Water Act’s (WOTUS) citizen suit provision, the Puyallup Tribe could intervene in United States’ lawsuit alleging that construction materials entering river when temporary spillway failed were pollutants from a point source.
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The Jamul Action Committee, “a non-profit organization of citizens living in and around the rural town of Jamul, California,” could not amend its Freedom of Information Act complaint to assert challenges to the status of lands on which the Jamul Indian Village, a federally-recognized Tribe, operated a casino, given that the Village was a necessary party and enjoyed sovereign immunity.
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All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Patricia Salazar at [email protected] with any questions.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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