AmeriScan: June 25, 2007

* * *

Supreme Court Limits the Endangered Species Act

WASHINGTON, DC, June 25, 2007 (ENS) - In a 5-4 decision today, the U.S. Supreme Court today limited the obligation of federal agencies under the Endangered Species Act to ensure that their actions do not jeopardize federally listed threatened or endangered species.

In two combined cases - EPA v. Defenders of Wildlife and National Association of Home Builders v. Defenders of Wildlife - the court reversed an appeals court decision that required the U.S. EPA to consider the protection of listed species before handing Clean Water Act permitting authority over to the states.

The Clean Water Act requires that the EPA transfer permitting powers to the states if nine criteria are met.

The Endangered Species Act, ESA, requires that a federal agency must consult with other relevant agencies to ensure its actions do not jeopardize the continued existence of any endangered species or threatened species.

The question resolved by the court ruling is whether the ESA consultation requirement is effectively a tenth criterion on which the transfer of Clean Water Act permitting power must be based. The majority concluded that it is not.

Delivering the majority opinion, Justice Samuel Alito wrote, "The transfer of permitting authority to state authorities - who will exercise that authority under continuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes - was proper. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit."

In his dissent, Justice John Stevens expressed the opinion that the Endangered Species Act works in harmony with other federal mandates and should not be trumped by other federal laws without the express direction of Congress.

Rodger Schlickeisen, president of Defenders of Wildlife said, "Today’s decision, while unfortunate, should apply only to a very narrow category of actions by federal agencies - actions compelled by the terms of another federal law - and should not be read as a broad abrogation of the authority of the Endangered Species Act."

Expressing the view that the majority opinion, "ignores the clear intention of Congress when they enacted the Endangered Species Act," Schlickeisen said, "We are concerned that the Court’s decision, combined with the Bush administration’s clear history of undermining the effectiveness of the Endangered Species Act, could lead to additional extinctions of American wildlife - extinctions which the Act is intended to prevent."

National Association of Home Builders President Brian Catalde was pleased with the ruling.

"This decision recognizes that we must always maintain a balance when we look at environmental regulations. We can't say that the Endangered Species Act is an 'uber-statute' that should slow down regulatory decisions under the Clean Water Act even as we recognize that both laws concern issues that are vital to preserving this earth for the next generation."

"This decision also tells us that the U.S. Supreme Court is helping to preserve housing affordability by striking down efforts at unnecessary, duplicative regulation," he said.

"Forcing the EPA to issue discharge permits in Arizona, which an unfavorable Supreme Court decision would have required," said Catalde, "would have cost builders more time and money, making homes less affordable in affected areas."

In the case of one protected species in Arizona, the U.S. Fish and Wildlife Service estimated that Endangered Species Act consultations delayed the typical development by five to 18 months and, when added to the cost of onsite mitigation and project modifications, cost between $1.7 million and $2.7 million, said Catalde.

* * *

Lake Tahoe Wildfire Destroys More Than 200 Buildings

LAKE TAHOE, California, June 25, 2007 (ENS) - A fast-moving, wind-driven fire that started Sunday afternoon near the popular resort town of Lake Tahoe has devoured more than 200 homes and other buildings and charred 2,500 acres. No injuries or fatalities have been reported, but some of the men and women who are on the front lines have lost their homes to the blaze.

The fire ignited around 2 pm in the upper Angora Creek watershed about five miles south of South Lake Tahoe in heavily wooded, dry terrain southwest of Lake Tahoe between Meyers Lake and Fallen Leaf Lake.

Officials believe it was caused by human activities and an investigation is underway.

The whole area along Upper Truckee Road was quickly evacuated, and residents took shelter in an evacuation center set up at the South Lake Tahoe Recreation Center and at the homes of family and friends.

The Pet Network Evacuation Shelter in Incline Village is housing any domestic animals owned by victims of the blaze.

Firefighters are attacking the fire from the ground and loads of fire retardant are being dumped on it from the air.

Winds gusted to 35 miles per hour Sunday night, but eased to about 12 mph overnight and temperatures dropped into the 30s, helping firefighters' efforts to control the blaze.

To assure them that their needs would be met financially, U.S. Senators Harry Reid and John Ensign and Congressman Dean Heller of Nevada organized a conference call with first responders today. On the call were Eli Ilano, Deputy Forest Supervisor for the Lake Tahoe Basin Management Unit, Steve Eubanks, Tahoe National Forest Supervisor, and Incident Commander Kent Swartzlander.

"Lake Tahoe is one of the picturesque wonders of the world," said Reid. "But pictures of the blaze right now paint a dreadful image. I want to make sure we do all we can to give the states of California and Nevada the resources they need to fight the fire and protect people who live nearby."

"Growing up at Lake Tahoe gave me a deep appreciation for one of the most beautiful areas in the world, and for years I have feared a catastrophic fire in the Tahoe Basin," said Ensign.

"The potential for catastrophic timber fires in the Tahoe Basin has been a concern for many years," said Heller.

All three lawmakers pledged to provide whatever assistance is necessary to put the fire out.

State and federal fire officials have forecast an active wildfire season in the Sierra Nevada after an unusually dry winter. The annual May 1 snow survey found the Tahoe area snowpack at just 29 percent of normal levels, the lowest since 1988.

* * *

Organic Foods Can Contain 38 Non-Organic Ingredients

WASHINGTON, DC, June 25, 2007 (ENS) - The U.S. Department of Agriculture, USDA, has changed the rules governing organic foods to allow 38 non-organic, agricultural ingredients to be used in foods that bear the government's "USDA Organic" label.

The list approved Thursday includes 19 food colorings, two starches, hops, sausage casings, fish oil, chipotle chili pepper, gelatin, celery powder, dillweed oil, frozen lemongrass, Wakame seaweed, Turkish bay leaves and whey protein concentrate.

At least 95 percent of the ingredients in organic products still must be organic ingredients, excluding water and salt, by weight.

The 38 substances are considered "minor" ingredients that cannot make up more than five percent of an organic product.

Before an organic handling operation can consider using a non-organic, agricultural minor ingredient, the organic form of the ingredient must be first sourced and confirmed unavailable by an accredited certifying agent, according to the rule established by the National Organic Standards Board, NOSB.

The interim final rule became effective as of June 21, 2007, but the NOSB is providing a 60-day period for additional public comment.

Representing manufacturers of organic products, the Organic Trade Association has pressed for the rule change, but consumers have been resistant.

The Organic Consumers Association, OCA, says the new rule means that Anheuser Busch will be allowed to sell its "Organic Wild Hops Beer" without using any organic hops at all.

Sausages, brats, and breakfast links labeled as "USDA Organic" are now allowed to contain intestines from factory farmed animals raised on chemically grown feed, synthetic hormones, and antibiotics, the OCA says.

"It's disheartening to see how profit motivated businesses like Kraft, Wal-Mart and Anheuser-Busch have more sway over the U.S. Department of Agriculture than family farmers, independent organic producers, and consumers," said OCA National Director Ronnie Cummins.

The Organic Trade Association says that until June 9, any non-organic agricultural ingredients could be used in the five percent of the ingredients in products labeled as USDA Organic, if an organic version were unavailable.

When the final rule takes effect, only those non-organic agricultural products that have been successfully petitioned to NOSB, published in the Federal Register and checked by a certification body will be allowed when the organic counterparts are not available.

OTA Executive Director Caren Wilcox says the number of ingredients allowed under those circumstances will shrink "dramatically" compared with the situation prior to June 9.

Craig Minowa, OCA's environmental scientist, points out that foods labeled as 100% organic will still be 100% organic.

"This rule applies to products that are 95% organic or less," said Minowa, "The ruling is yet another reason for organic-minded shoppers to carefully read ingredient labels, look for '100% Organic' labels, and buy from local family farmers via your area co-op, farmers market or CSA."

The interim final rule is online at:

Public comments can be sent by mail to Robert Pooler, Agricultural Marketing Specialist, National Organic Program, USDA/AMS/TMP/NOP, 1400 Independence Ave., SW, Room 4008-So., Ag Stop 0268, Washington, DC 20250. Tel: 202-720-3252; Fax: 202-205-7808. Comment on the Internet at:

Written comments on the interim final rule should be identified with the docket number AMS- TM-07-0062. Comments should identify the relevant topic and section number of the interim final rule. All comments will be posted by the National Organic Program at:

* * *

Court Ordered Discharge Permits Could Affect Millions of Vessels

WASHINGTON, DC, June 25, 2007 (ENS) - A federal court decision last September that the Clean Water Act applies to most vessels operating in U.S. waters has the potential to change the rules on discharges from millions of recreational boats, fishing vessels, freight and tank barges.

Discharges may include ballast water, bilge water, deck runoff and gray water.

The U.S. Environmental Protection Agency, EPA, is appealing the ruling of the U.S. District Court for the Northern District of California in the case brought by environmental groups. But meanwhile, the EPA is preparing to impose a vessel discharge permit program in case its appeal is rejected.

"While EPA's position is that an exemption from Clean Water Act permitting is proper, we also share concerns about the significant impacts of aquatic invasive species," said EPA Assistant Administrator for Water Benjamin Grumbles.

Ballast water taken onboard to balance ships and then discharged in U.S. waters can bring non-native species into U.S. aquatic ecosystems. If these invasive species become established, they can adversely impact the economy or the environment, or cause harm to human health.

Led by Northwest Environmental Advocates based in Portland, Oregon, the environmentalists started in 1999 with a petition to the EPA asking that certain discharges from vessels, including ballast water, not be excluded from the requirement to obtain a National Pollutant Discharge Elimination System, NPDES, permit under the Clean Water Act.

The EPA denied the petition, saying that "actions by the federal government under other statutes specific to ballast water were likely to be more effective and efficient in addressing the concerns raised in the petition than reliance on NPDES permits."

The environmental groups sued, and in March 2005 the court ruled that the EPA regulation excluding discharges exceeded the agency’s authority under the Clean Water Act.

On September 18, 2006, the Court revoked the exclusions, but gave the EPA two years to develop a permit program. That progam is due on September 30, 2008.

The EPA says 143,000 commercial vessels and more than 13 million state registered recreational boats as well as more than 25 different types of vessel discharges could be affected.

The EPA is seeking public comments and data to help the agency develop a permitting framework that recognizes various vessel characteristics and types of discharges.

The agency needs information about vessel identification and operations, owner notification, discharge impacts, pollution control equipment and practices, and commercial and recreational vessel traffic patterns.

Documents related to the rulemaking petition and the court ruling:

* * *

EPA Puts Alaska's Exxon Valdez Waters Decision on Hold

ANCHORAGE, Alaska, June 25, 2007 (ENS) - The U.S. Environmental Protection Agency, EPA, has partially approved Alaska's official 2006 Clean Water Act 303(d) list of impaired waters. But the federal agency is deferring final action on Alaska's decision not to include the Exxon Valdez waters - specifically the intertidal zones - on its 2006 303(d) list.

The Exxon Valdez oil tanker spilled an estimated 11 million gallons of crude oil on March 24, 1989 when it hit Prince William Sound's Bligh Reef. This has been recorded as one of the largest spills in U.S. history.

EPA Water Office Director Mike Gearheard says the deferral process allows the agency to take a closer look at Alaska’s proposed action for these waters and see how realistic the goals are.

"Without proof of dedicated funding directed towards restoration planning and implementation, we can’t be sure that Alaska will be able to show sufficient progress towards restoring impaired beaches in a reasonable period of time," Gearheard said.

By official counts, the Exxon Valdez spill killed 250,000 seabirds, 2,800 sea otters, 300 harbor seals, 250 bald eagles and 22 killer whales. Numerous other species, from salmon to clams, also suffered casualties.

Oil spill affected areas have still not recovered and weathered oil can still be toxic at low levels.

More than 500 miles of remote wilderness shoreline was oiled.

"EPA needs additional time to evaluate the water quality status of the areas affected by the Exxon Valdez before deciding whether these waters belong on the state impaired waters list."

Alaska added two waters to the 303(d)list - the Lower Kenai River and Big Lake for petroleum hydrocarbon pollution.

Alaska removed Red Dog and Ikalukrok Creeks from the impaired list as they now are considered to have attained water quality standards.

The EPA supports Alaska's decision to list the lower Kenai River and Big Lake as impaired for petroleum hydrocarbons and to initiate recovery for these waterbodies.

The federal agency also supports the state’s decision on Red Dog and Ikalukrok Creek and the other waters.

The state moved four waters - Ward Cove, Campbell Creek, Campbell Lake and Cabin Creek - to category 4 of the integrated report as they are are considered to be impaired waterbodies with waterbody recovery plans.

To read the Alaska impaired waters report, click here.

* * *

Texas Seeks Disaster Assistance After Flooding Rains

AUSTIN, Texas, June 25, 2007 (ENS) – Governor Rick Perry today requested that President George W. Bush declare major disaster areas for Bosque, Cooke, Coryell, Denton, Grayson, Lampasas, and Tarrant counties due to severe storms, flooding and tornado damage in North Texas that occurred from June 16 through June 18, 2007.

The governor has asked for an expedited declaration.

On Tuesday, the governor issued a state disaster proclamation for Cooke, Grayson, Lampasas and Tarrant counties due to the heavy damage sustained in these communities as a result of the storms. He added Bosque, Coryell and Denton counties to that proclamation Friday.

"Recent storms have devastated the communities in North Texas, sadly taking lives and homes in the storms’ path," Perry said. "I am committed to working with state and federal emergency agencies to secure assistance that will help these families and businesses recover and bring about a sense of normalcy as quickly as possible."

FEMA starts joint preliminary damage assessments in Texas this week, for flooding, tornadoes and severe weather in a line of Texas communities that stretches from the state's border with Oklahoma to the southern border with Mexico.

The flooding resulted from extraordinary rainfall in which several communities saw more than 10 inches in a 24 hour period with some receiving an inch of rainfall every 15 minutes early in the morning of June 18.

The joint damage assessments include FEMA, Small Business Administration, state and local emergency response officials. The review of damage to homes and businesses started in Cooke, Grayson and Tarrant counties. The state has requested that Individual Assistance assessments take place in Bosque, Coryell, Lampasas and Webb counties.

Also, joint assessment teams are reviewing damage to infrastructure and public property in Bosque and Lampasas counties. These Public Assistance assessments will continue all this week in Cooke, Grayson and Tarrant counties.

The Governor's Division of Emergency Management is receiving additional reports of damage from local officials and has indicated that joint damage assessments may be needed in additional communities.

Joint damage assessments are a critical step for states to determine if federal assistance will be requested, and the assessments also help to plan and implement recovery efforts.

If a federal disaster declaration is granted, it could provide federal grants for individuals and families, disaster housing, disaster unemployment assistance, crisis counseling and Small Business Administration disaster loans.

Assistance also may be made available for debris removal and hazard mitigation projects, and loans may be made available through the U.S. Department of Agriculture and coordinated by the Division of Emergency Management.

On Friday, more than $8 million in disaster aid was approved for residents and businesses in the five different Texas counties scattered across the state - Atascosa, Denton, Maverick, Moore and Swisher counties. They were affected by the severe storms and tornadoes of April 21 to 24.

* * *

California Air Board Adds Climate Labels to New Cars

LOS ANGELES, California, June 25, 2007 (ENS) - New regulations adopted Friday by the California Air Resources Board, ARB, will require automobile manufacturers to label their vehicles' smog and greenhouse gas emission characteristics.

The label will allow consumers to consider and compare a vehicle's environmental impacts.

"This simple tool will empower consumers to choose vehicles that help the environment," said ARB Chairman Dr. Robert Sawyer. "Most Californians recognize climate change as a very serious problem. This label will help consumers make informed choices."

Californians purchase about two million new vehicles each year.

The 25 million vehicles on California roads travel about 900 million miles each day. Daily, this produces 2,288 tons of smog precursor emissions and 350,000 tons of greenhouse gas emissions. California's Smog Index Label has been required on new vehicles since the 1998 model year. The label was intended to help consumers compare the smog forming emissions from different vehicles within that model year.

The law now requires ARB to include information about emissions of global warming gases. This new label will be affixed to the window of every new car sold in California beginning in 2009.

Also Friday, community, health and environmental advocates from across the state urged the Board to improve its current plan to reduce smog and particle pollution.

"If the current smog plan is approved, a child born today won’t be able to breathe clean air until he graduates from high school," said Tim Carmichael, policy director for the Coalition for Clean Air. "Air pollution costs the state $50 billion annually. This plan can, and must, be strengthened before it is approved."

"The current plan is anemic and will defer meeting clean air standards until 2023," said Adrian Martinez, an attorney in the Southern California Air Project at Natural Resources Defense Council.

The groups urge the Board to add all available measures to its smog plan - more stringent reductions of diesel truck emissions, commitments to use cleaner ship fuels, reduction in pesticide use, and specific commitments to use cleaner agricultural equipment.

"Many measures to strengthen the plan are available today," said Rey Leon, senior policy analyst with the Latino Issues Forum. "We just need the Board to incorporate them into the state plan today. There is no excuse to leave residents suffering any longer. In the San Joaquin Valley that will be up to 11 additional years."

Copyright Environment News Service (ENS) 2007. All rights reserved.