Wildlines Archives
Volume II, Number 47
November 24, 2003
A publication of the State Environmental Resource Center (SERC) bringing you the most important news on state environmental issues from across the country.
 
 
NEWS FROM THE STATES:
 
 
 
 
 
 
 
 
 
Groundwater Withdrawal Permits
Kentucky to Clean Up Brownfields
ALEC's Disorder in the Courts
 
CA County to Vote on Local Biotech Ban
Nebraska Water Task Force Will Propose Legislation
Suspension of Pending Davis Rules Could Affect Many in California
Wyoming Legislature to Consider Coalbed Methane Issues
New Jersey: Developers File Suit Against DEP Volunteer
Missouri and Kansas to Test Deer for CWD
Wisconsin to Become Leader in Wind Energy
Plans to Lease Water Upsets West Texas Residents
California's Strict Smog Law Survives

Groundwater Withdrawal Permits

Our water is running out, and we need to pay attention. Increased growth continues to strain water resources as more agricultural, municipal, recreational, and commercial users attempt to quench their thirst. Ironically, as water withdrawals increase, users may be destroying the very resource upon which they depend. In many states, there is no requirement that large water withdrawals be permitted by a coordinating agency responsible for juggling the multiple uses and users of shared water systems. Without a permit, large water withdrawals are difficult to monitor and can cause a number of problems. Water withdrawals and diversions can severely alter the natural timing and recreational uses of a stream including fishing and boating which can hurt rural communities dependent on revenue from those activities. For information on how your state can implement a system of groundwater withdrawal permits, visit: http://www.serconline.org/groundwaterWithPermit/pkg_frameset.html.

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Kentucky to Clean Up Brownfields (The Courier-Journal 11/20)
http://www.courier-journal.com/localnews/2003/11/20ky/wir-front-brownfields1120-12289.html

Kentucky has proposed new rules to spur the cleanup and development of brownfields -- thousands of polluted industrial and commercial sites, from old dry cleaning shops to abandoned factories. Private companies and government officials have been reluctant to develop brownfields without specific rules to tell them what must be cleaned up and what pollutants could remain. Sites with actual or perceived contamination would be overlooked because developers felt vulnerable to lawsuits alleging inadequate cleanup. This makes Kentucky the 46th state to adopt laws that give developers immunity from lawsuits from the government once they have cleaned up polluted land or buildings to an acceptable standard. The new rules are widely supported by business, industry, city leaders and environmental groups because they are expected to help remediate sites throughout the state, including a number of abandoned tobacco warehouses. The final drafting of the effort took two years of negotiation between the business and environmental community over setting pollutant levels at or tighter than EPA allowances. For more information on what your state can do about brownfields, visit: http://www.serconline.org/brownfields/index.html.

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ALEC's Disorder in the Courts

The American Legislative Exchange Council (ALEC) is once again putting on its dog and pony show and traveling the country visiting state legislators promoting its "Disorder in the Courts" report as a way to reform the judicial system. ALEC has lumped a number of its judicial reform bills together with analysis into a report detailing the so-called failures of our judicial system. It is obvious ALEC is out to protect its corporate donors from responsibility and action. A number of the bills could have significant impact on environmental litigation, and others appear to add levels of bureaucracy into an already crowded system. One of their "success stories" of the 2003 state legislative session is the "Jury Patriotism Act," which seeks to reclassify jury duty rules and procedures. The name of the bill apparently struck a number of conservative legislator's fancy as it was introduced in 6 states (AZ, IL, KY, LA, OK, VT) adding more burdens. Three of the bills, the "Fairness in Litigation Act," the "Appeal Bond Waiver Act," and the "Private Attorney Retention Sunshine Act," all place additional requirements on an overstressed judicial system. However, the other bills are a bit more devious in their intent. The "Intrastate Forum Shopping Abuse Reform Act," allegedly seeks to prevent overzealous attorneys from searching for sympathetic jurors. The bill is in response to some unusually large jury settlements that have been handed down in Jefferson County, Mississippi since 1995. It is an erroneous to assume that this occurs regularly and in all fifty states. The "Separation of Powers Act," is nothing more than a bill to verify that courts do not make law and only review, thus reaffirming the established purposes of the three branches of government. Although ALEC may feel some judges, most notably those involved in tobacco and environmental suits have created law, they have merely done their intended job. The bill appeals to its corporate donors, mainly those who have been the target of recent suits that have rectified past wrongdoings. The most dangerous bill is the "Class Action Improvements Act," which resembles the "Federal Class Reform Act of 2003." The bill seeks to rewrite class action requirements to make it more difficult for plaintiffs to prove their case. The bill "would eliminate defendant class actions; would require that the trial court consider whether the expense and effort required to litigate the case on a class basis is justified by the amount of recovery that each class member is likely to obtain; limit the scope of plaintiff class actions to residents of the state." So, for example, if a number of companies are responsible for chemicals leeching into the surrounding areas, as seen in Anniston, AL with PCB contamination, a class action suit may not have been brought if this bill was passed. This bill would seriously hamper the ability of citizens to seek legal repercussions against companies that feel they are not responsible. Overall the "Disorder in the Courts" report is nothing more than a wish list for corporate donors who would like to pollute and break the law at their whim and have no legal liability for harming others and the environment.

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CA County to Vote on Local Biotech Ban (The Sacramento Bee 11/19)
http://www.sacbee.com/content/business/story/7812501p-8753480c.html

In March, voters in Mendocino County will consider a ban on raising genetically engineered crops. Genetic engineering involves moving genes among species in ways that can't be done with traditional cross-breeding. The Mendocino Organic Network sponsored the successful signature drive to get this issue on the ballot as a protective measure for the booming organic wine-grape industry. If the ban is enacted, it will largely be symbolic because no biotech crops are grown in the county, nor are biotech versions of biotech wine grapes and pears commercially available. "It's very exciting to set the pace and not only protect our own county but maybe set a precedent for other counties to follow," said Allen Cooperrider, an organic brew pub owner. Even though Mendocino's signature drive succeeded, a vote might be delayed until next fall if county supervisors decide at their Dec. 2 meeting to further evaluate the impact of the proposed law. The Mendocino County Farm Bureau has come out against the ban, saying that it is bad policy for the county to undermine a technology regulated by the federal government and that could limit farmers' choices.

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Nebraska Water Task Force Will Propose Legislation (Lincoln Journal Star 11/19)
http://www.journalstar.com/nebraska.php?story_id=99515

More than a year after being convened by the State Legislature, the Nebraska Water Policy Task force is prepared to propose a package of legislation to improve management of Nebraska's water resources and reduce conflicts between users. One important aspect of the plan is to restore water levels in the Platte River in order to comply with a tri state agreement between Nebraska, Colorado and Wyoming, which would improve habitat for endangered species. The package would also require annual evaluation of river basins in the state starting in 2006, and development of management plans for basins that are overused. The legislation will be sent to the legislature shortly. For more information on how to protect your state's water resources, visit: http://www.serconline.org/groundwaterWithPermit/pkg_frameset.html.

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Suspension of Pending Davis Rules Could Affect Many in California (LA Times 11/19) http://www.latimes.com/news/local/la-me-regulations19nov19,1,5708775.story?coll=la-headlines-california

A decision by California Gov. Arnold Schwarzenegger to postpone all pending regulations from the Davis administration has left many government officials and environmental activists confused and worried. The purpose of the order is to give the Schwarzenegger administration time to review the pending regulations, but many environmentalists fear that the order will delay many important environmental and health regulations and allow industry lobbyists to renew their challenges to environmental regulations that have already been debated. Many government administrations, including the Cal-EPA and the Energy Commission, have put off acting on important health and safety regulations as a result of the Governor's order. Delayed actions include new water and energy efficiency standards for washing machines, new building standards to increase energy efficiency and prohibitions on the use of diesel engines. "I understand that the administration may want to take a deep breath and see what is on the book, but these are regulations affecting the public heath, and they should not be delayed," said Ann Notthoff, a lobbyist for the Natural Resources Defense Council.

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Wyoming Legislature to Consider Coalbed Methane Issues (Casper Star Tribune 11/21)
http://www.casperstartribune.net/articles/2003/11/21/news/wyoming/df4bd884c732d7a6e9e34716a4a70134.txt

The increase in coalbed methane development has touched off a series of disputes between those who own the land and those who own the mineral rights under it. This problem, called ‘spit estate', will be addressed in new legislation being written by State Rep. Rosie Berger. In most cases, the mineral developer and the landowner draw up a private contract to cover the damages caused by extraction, which can include pollution, and loss of agricultural land. This legislation would address what happens when the two parties can't agree. Current law allows the developer to post a bond and begin extraction; Legislators hope this bill will further protect landowners' rights. The legislature may also consider creating an environmental response fund for coalbed methane operations in the state, but it's unclear where that money would come from.

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New Jersey: Developers File Suit Against DEP Volunteer (Asbury Park Press 11/14) http://www.app.com/app2001/story/0,21133,855169,00.html

Developers have filed a lawsuit against community activist and volunteer wildlife surveyor Helen Henderson, contending that her report of a seasonal pond and frogs near their proposed Route 9 shopping center site was false and intended to derail their state permit. This marks only the second time a wildlife volunteer has been sued for making a report to the Department of Environmental Protection (DEP), but the DEP has not decided whether or not to represent her. The suit has been characterized as a SLAPP suit, or Strategic Lawsuits Against Public Participation, by Thomas A. Borden of the Rutgers University Environmental Law Clinic, who is also representing environmental groups that are challenging a state permit issued for the Lacey Town Square project. Lacey Town Center LLC, the developers group, alleges that Henderson "is wrongfully attempting to restrict development of the Town Square property so that she can continue to enjoy the property as an extension of her back yard." However, in February 2002, Henderson wrote to DEP officials to report the Town Square property had a vernal pool -- a type of shallow wetlands that appear in woods and fields, often in spring, and support frogs and other amphibians, although a private consultant associated with Lacey Town Center, LLC contends a vernal pond does not exist. Henderson is vice chairwoman of the Lacey Rail-Trail Committee, a group that has pushed to convert an old railroad right of way in Lacey into a recreational trail. Along with the environmental group Save Barnegat Bay and the Association of New Jersey Environmental Commissions, the trail committee is appealing a DEP permit for a road crossing as part of the Lacey Town Square plan. For more information on SLAPP suits, visit: http://www.serconline.org/SLAPP/index.html.

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Missouri and Kansas to Test Deer for CWD (Kansas City Star 11/17)
http://www.kansascity.com/mld/kansascity/news/local/7279434.htm

Biologists hope chronic wasting disease did not turn up during the weekend as 400,000 hunters took aim at Missouri's more than 1 million deer. Lymph tissue samples will be collected from deer to test for the brain-wasting illness, chronic wasting disease, that is closely related to mad cow disease. Cass County and Ray County will be checked this year in the Kansas City area. Concerns heightened in recent years when chronic wasting disease turned up in Wisconsin, which like Missouri has a big deer herd. Missouri and Kansas officials have said if chronic wasting is found, they will do more testing, evaluate the circumstances and work with landowners and public agencies on a plan. That could include deer eradication in target areas. Last year, Missouri Department of Conservation officials gathered 6,000 deer heads at the stations where hunters register their kill. Brain stem and lymph tissues were later removed at a wildlife area and all samples tested negative. For more information about Chronic Wasting Disease, visit: http://www.serconline.org/CWD/index.html.

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Wisconsin to Become Leader in Wind Energy (Milwaukee Journal Sentinel 11/17)
http://www.jsonline.com/news/state/nov03/185696.asp

Wisconsin will become the top wind energy producing state east of the Mississippi River next year when the state's largest wind farm is erected several miles east of Lake Winnebago. Navitas Energy Inc will build 44 turbines on land leased from local property owners, who will be paid $4,000 a year for each turbine. "I'll be harvesting the wind," said Jim Guelig, a dairy farmer. "My family has been farming here for more than 150 years, and now we'll be harvesting a different crop." The 21-year development agreement also assures the town of Marshfield $2.8 million in revenue. This project should improve Wisconsin's "renewable energy grade"– the state received a C, according to a report published earlier this year by the Union of Concerned Scientists. The report can be found at: http://www.ucsusa.org/clean_energy/renewable_energy/page.cfm?pageID=1180. For more information about encouraging renewable energy development in your state, visit: http://www.serconline.org/cleanenergy.html.

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Plans To Lease Water Upsets West Texas Residents (Austin American-Statesman 11/21) http://www.statesman.com/metrostate/content/auto/epaper/editions/friday/metro_state_
f3db5c5e07afa12e00c4.html

The Texas General Land Office is trying to strike a deal with Rio Nuevo Ltd. that would allow Rio Nuevo water leases in far West Texas. The water leases would allow Rio Nuevo to drill wells and export water from the Culberson, Hudspeth, Presidio and Jeff Davis counties. Money from the leases would go into the Permanent School Fund of Texas. At a recent meeting of the Far West Texas Water Planning Group, many residents and officials in the already drought-stricken area expressed strong opposition to the water leases. Among those opposed to the deal is the Town of Presidio Mayor Alcee Tavarez, who sent a letter to Gov. Rick Perry requesting that he oppose the project. "They basically want to shove this down our throats" says Tavarez. Trace Finley, policy director of the Land Office, said that if the Far West Texas Water Planning Group rejects the deal, the project would likely be terminated, unless the Land Commissioner Jerry Patterson feels it is unfair to Rio Nuevo.

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California's Strict Smog Law Survives (LA Times 11/23)
http://www.latimes.com/news/science/environment/la-me-smog23nov23,1,329120.story?
coll=la-news-environment

A measure proposed by Senator Christopher Bond (R-M.O.) that would have prohibited states from regulating air pollution from small engines was rejected by members of a House and Senate conference committee. Small off-road engines, including those used in lawn mowers, portable generators and boat engines are a major source of air pollution and smog-forming emissions. The measure proposed by Senator Bond would have repealed a California regulation that cut emissions from small engines by 35%. "It's a health issue and a state's rights issue. The states view this as an attack on their rights and authority. It's a message coming from lots of the states," said S. William Becker, executive director of the State and Territorial Air Pollution Program Administrators and the Assn. of Local Air Pollution Control Officials. The proposal by Senator Bond, if passed, would have resulted in a 4% increase in total emissions statewide, hampering California's ability to meet 2010 clean air standards, which could also cost the state billions of dollars in federal highway funds. The compromise struck by Senator Bond and California Senator Feinstein, which allows the rules to survive, bars other states from passing standards stricter than the federal rules, and requires the EPA to draft new rules on small engines.

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