Recent Water Law Cases
You can visit the archived cases here.
Updated on October 16, 2014
Residents for Sane Trash Solutions, Inc. v. U.S. Army Corps of Engineers 2014 U.S. Dist. LEXIS 94356 (S.D.N.Y. July 10, 2014)
By Natalie M. Laczek, Esq.
Plaintiffs, Residents for Sane Trash Solutions, Inc. (Sane Trash) and Micah Z. Kellner, have previously filed five complaints contesting all state and local actions related to the construction of a Marine Transfer Station (MTS), located at 91st Street in Manhattan, New York. The planned 70,000 square foot MTS will receive thousands of tons of New York City solid municipal waste per day, which will then be sent via barge to remote locations. All of the state and local challenges were rejected. Read more.
Asarco, LLC v. Union Pacific Railroad Co. 2014 WL 4211113 (9th Cir. Aug. 27, 2014)
By Piper Doeppe
In 2012, the mining company Asarco, LLC brought a contribution action against Union Pacific Railroad under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) stemming from massive environmental damage caused by mining operations in Northern Idaho. Asarco, LLC v. Union Pac. R. Co., 2014 WL 4211113 (9th Cir. Aug. 27, 2014). Before the suit, Asarco reached a settlement with the United States for $482 million, which covered Asarco’s CERCLA liabilities in the Coeur d’Alene watershed of northern Idaho. In this suit, Asarco claimed that Union Pacific was in turn liable for a portion of that settlement under the contribution provisions of CERCLA. Id. at *1. Read more.
Aransas Project v. Shaw 756 F.3d 801 (5th Cir. 2014)
By Denny Vaggalis
On June 30, 2014, the U.S. Court of Appeals for the Fifth Circuit held that a district court misapplied the proximate cause analysis when it ruled that the Texas Commission on Environmental Quality’s (“TCEQ”) issuance of water withdrawal permits caused a take of endangered whooping cranes under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. The Plaintiff, the Aransas Project (“TAP”), alleged that TCEQ was responsible for the deaths of several whooping cranes, an endangered species, through its mismanagement of the state’s water resources. Aransas Project v. Shaw, 756 F.3d 801 (5th Cir. 2014). Read more.
Navajo Nation v. United States Department of the Interior CV-03-00507, 2014 WL 3610948 (D. Ariz. July 22, 2014)
by John Robinson Jr.
The U.S. District Court for the District of Arizona (the “Court”) recently rejected several claims brought by the Navajo Nation (the “Nation”) against the U.S. Department of the Interior (“DOI”) concerning DOI’s management of the Lower Basin of the Colorado River. Navajo Nation v. United States Department of the Interior, CV-03-00507, 2014 WL 3610948 (D. Ariz. July 22, 2014). The Court rejected all of these claims without reaching the merits based on lack of standing and sovereign immunity. Read more.
Suffolk Cnty. Water Auth. v. Dow Chem. Co. 2014 WL 3608520 (N.Y. App. Div. July 23, 2014)
by Kathleen A. Miller
Suffolk County Water Authority (“SCWA”) brought suit against Dow Chemical Company (“Dow”) and other manufacturers, distributors, and retailers of perchloroethylene (“PCE”), a chemical used in dry cleaning, and those who manufactured equipment intended to be used with PCE for dry cleaning purposes. Read more.
Environmental Law Foundation, et al. v. State Water Resources Control Bd., et al., Case No. 34-2010-80000583 (Cal. Super. Ct. July 14, 2014)
by Sophia Tornatore
On July 14, 2014, the Sacramento Superior Court held that the public trust doctrine protects navigable waterways from harm caused by groundwater extraction. Envtl. Law Found., et al. v. State Water Res. Control Bd., et al., Case No. 34-2010-80000583, (Cal. Super. Ct. July 14, 2014). The Court further ruled that the Respondent, County of Siskiyou (County), must consider the public trust when it issues groundwater well drilling permits. Id. at 2. Read more.
Light v. State Water Resources Control Board 226 Cal. App. 4th 1463; 173 Cal. Rptr. 3d 200
by Curtis Filaroski
The California Court of Appeal for the First Appellate District (the “Court”) recently reviewed the Mendocino County Superior Court’s decision on Regulation 862, a State Water Resources Control Board (“Board”) regulation addressing water diversions made to prevent frost damage in the Russian River watershed. Light v. State Water Resources Control Bd., 226 Cal. App. 4th 1463 (Cal. App. 1st Dist. 2014). Plaintiffs, vineyard owners, a group of fruit growers, and other related entities, challenged Regulation 862. Id. at 1477. After the trial court issued an order invalidating the regulation on several grounds, the Court reversed the trial court’s decision. Id. at 1498. Read more.
Friends of Merrymeeting Bay v. Hydro Kennebec, LLC (1st Cir. 2014))
by Ted Stotzer
Friends of Merrymeeting Bay and Environment Maine (plaintiffs) brought two citizen suits against Hydro Kennebec, LLC, Brookfield Power U.S. Asset Management, LLC, Merimil LP, FPL Energy Maine Hydro, LLC, and Brookfield Renewable Services Maine, LLC (defendants) under §1540(g)(1) of the Endangered Species Act (ESA) and §1365(a)(1), (2) of the Clean Water Act (CWA). Friends of Merrymeeting Bay v. Hydro Kennebec, LLC, Nos. 13-1220, 13-1750, 2014 WL 3400520, at *1 (1st Cir. July 14, 2014). Plaintiffs alleged the continued passage of endangered fish through dam turbines operated by defendants, rather than through the diversionary facilities, resulted in fish injury and death, which is an illegal “taking” under §1538 of the ESA. Read more.
Southern Appalachian Mountain Stewards v. A & G Coal Corp. 2014 WL 3377687, No. 13-2050 (4th Cir. July 11, 2014)
by Shannon Martin Dilley
The United States Court of Appeals for the Fourth Circuit recently ruled that A&G Coal Corporation (“A&G”) (“appellant”) could not assert the permit shield defense for discharges of selenium because it failed to satisfy the Piney Run test. In affirming the district court’s ruling, the Fourth Circuit held that A&G’s silence on the existence of selenium was a failure to comply with disclosure requirements and the express terms of the permit application. It also held that general disclosures were not sufficient, and selenium discharges were not within the reasonable contemplation of the agency. Southern Appalachian Mountain Stewards v. A & G Coal Corp., 2014 WL 3377687, No. 13-2050 (4th Cir. July 11, 2014). Read more.
AquAlliance v. U.S. Bureau of Reclamation
by Natalie M. Laczek, Esq.
The U.S. District Court for the Eastern District of California recently refused to enjoin a federal water transfer project to allow sales of water from the Sacramento–San Joaquin Delta (“Delta”) to the San Luis & Delta–Mendota Water Authority (“SLDMWA”). AquAlliance v. U.S. Bureau of Reclamation, 2014 WL 3401390, at *1, *22 (E.D. Cal. July 11, 2014). Read more.
San Luis and Delta-Water Authority v. Jewell , 747 F.3d 581
by Michael Tone
The U.S. Court of Appeals for the Ninth Circuit recently reversed the Eastern District of California and ruled that the Fish and Wildlife Service’s (“FWS”) Biological Opinion (“BiOp”) protecting the Delta Smelt (“Smelt”) was not arbitrary or capricious. San Luis and Delta-Water Authority v. Jewell, 747 F.3d 581, 591 (9th Cir. 2014). Read more.
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You can visit the archived news articles here. Updated September 9.
US OSG files amicus in Florida v. Georgia, urging Supreme Court to wait until the Corps revises its Master Manual - October 14, 2014
In September, the US Office of the Solicitor General filed an amicus brief urging the Supreme Court to deny Florida leave to file a complaint in Florida v. Georgia, US, No. 220142 ORG, until the Army Corps of Engineers completes a revised "Master Water Control Manual" for Apalachicola-Chattahoochee-Flint (ACF) River Basin; or, alternatively, to grant Florida leave to file, but stay or provide for tailoring of any further proceedings until the revised manual is issued. The parties have since filed supplemental briefs with the Court.
Pacific Legal Foundation seeks cert on 9th Circuit decision upholding the delta smelt biological opinion - October 14, 2014
On September 30, the Pacific Legal Foundation filed a cert petition asking SCOTUS to review and reverse the 9th Circuit's decision upholding a 2008 biological opinion for the endangered delta smelt, under the Endangered Species Act. The regulation has resulted in major water cutbacks in Central and Southern California during an already severe drought. Read more here.
EPA voluntarily dismisses 4th Circuit CAFO appeal – October 14, 2014
EPA has voluntarily dismissed the matter of Alt v. EPA, 4th Cir., No 13-2534, concerning the "Alt CAFO" in West Virginia. After the owner agreed to make changes to the operations to reduce pollution, EPA confirmed that such reduction would occur and withdrew the order and requested the court dismiss the case. See more in EPA's blog.
USGS releases a study which confirms fears that Nevada's water pumping in the Snake Valley will deplete Utah's groundwater in the region. - September 25, 2014
The USGS published conclusions that proposed withdrawals from the Snake Valley aquifer, by the Southern Nevada Water Authority, will depress groundwater levels and reduce discharge into the springs that support agriculture in this remote region, which straddles the Utah-Nevada line west of Delta. The two states almost reached an agreement on this issue, but Utah backed out last year (based in part on those concerns). See a copy of the study here. And read more about the issue here.
Gov. Brown Signs California Sustainable Groundwater Management Act Into Law - September 24, 2014
On September 17, 2014, Governor Jerry Brown singed the Sustainable Groundwater Management Act into Law, which expands regulations on groundwater management in California. The new laws (actually comprised of three separate bills) are designed to catch California up to many other states who already have statewide groundwater management systems, although the short-term impact will be mainly empowering local agencies to begin developing basin-wide groundwater management plans, metering wells, monitoring groundwater use, and imposing fines in to enforce restrictions.
BP Found Grossly Negligent by District Court - September 4, 2014
The Eastern District of Louisiana held that BP was grossly negligent for discharges into the Gulf of Mexico in 2010 from the Deepwater Horizon oil spill, in violation of the Clean Water Act. This finding subjects BP to up to $18 billion in penalties under the CWA, and possibly billions of dollars more in punitive damages. The decision can be found here.
Vermont Received $46 Million from USDA for the Lake Champlain Algal clean-up. August 28, 2014
Vermont received $46 million in commitments over a 5-year period from the US Department of Agriculture to combat blue-green algal blooms plaguing Lake Champlain suspected to be caused by excessive phosphorus. The money will be used to help farmers create buffers to prevent phosphorus runoff and adopt better tillage techniques, among other efforts. Read more about it here.
Reply Brief filed in Chesapeake Bay TMDL Case - August 20, 2014
American Farm Bureau Federation filed its reply brief in the closely watched Third Circuit Chesapeake Bay TMDL case, American Farm Bureau Federation v. USEPA. The reply brief argues that EPA’s interpretation of Chevron is erroneous, that EPA has no authority to add source limits, “Reasonable Assurance” requirements, or deadlines under Clean Water Act § 303(d). Read the full brief here.
Freedom Industries Filed a Bankruptcy Plan - August 18, 2014
Freedom Industries filed a proposed Chapter 11 plan in U.S. Bankruptcy Court for the Southern District of Western Virginia. Freedom Industries was identified as the party responsible for a chemical leak affecting the Elk River. The spill cut off water supplies for over 300,000 people and impacted several businesses outside of Charleston. (brief available with a PACER account from Court website).
City of San Diego agrees to pay $1 million for MS4 violations - August 13, 2014
The City of San Diego agreed to pay $1 million in penalties for failing to violations of the City's Municipal Separate Storm Sewer System ("MS4") permits at six public projects. The official documents can be found at the Regional Water Quality Control Board, San Diego Region website.