Recent Water Law Cases
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Swinomish Indian Tribal Community v. Department of Ecology, 311 P.3d 6 (Wash. 2013)
by Alan Weinberg
On October 3, 2013, the Supreme Court of Washington reversed a trial court order dismissing the Swinomish Indian Tribal Community’s (“Tribe”) challenge to the Department of Ecology’s (“Ecology”) decision to amend the Skagit River Basin Instream Flow Rule. Read more.
Oneida Tribe of Indians of Wis. v. Hobart, 2013 WL 5692337 (7th Cir. Oct. 18, 2013)
by Michael Tone
The U.S. Court of Appeals for the Seventh Circuit affirmed the U.S. District Court for the Eastern District of Wisconsin’s ruling granting summary judgment to the Oneida Tribe of Indians of Wisconsin (“Tribe”) and the third-party defendant United States of America. Read more.
Ecological Rights Foundation v. Pacific Gas and Electric Co., 713 F.3d 502 (9th Cir. 2013)
by Tom DeLawrence
On April 3, 2013, the United States Court of Appeals for the Ninth Circuit issued an important victory for users of wooden utility poles treated with pentachlorophenol (“PCP”) and other hazardous substances. In the case, Ecological Rights Foundation (“Plaintiff”) innovatively attempted to classify the utility poles as a point source subject to regulation under the Clean Water Act (“CWA”) and also to classify the chemicals escaping from the poles as a solid waste subject to regulation under the Resource Conservation and Recovery Act (“RCRA”). Read more.
Ecological Rights Foundation v. Pacific Gas & Electric Co., 713 F.3d 502 (9th Cir. 2013)
by Zaven A. Sargsian
The poet John Updike, in his ode to nature, referred to them as like “a race of giants,” “more constant than evergreens [b]y being never green.” John Updike, Telephone Poles (Knopf 1st Ed. Aug. 12, 1963). The race of giants Updike was referring to are telephone poles. These “giants” became the topic of an opinion by the U.S. Court of Appeals for the Ninth Circuit in Ecological Rights Foundation v. Pacific Gas & Electric Company, 713 F.3d 502 (9th Cir. 2013). Read more.
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San Diego Implements Drought Response Plan - 2/23/14
On February 14, 2014, the San Diego County Water Authority activated its water shortage and drought response plan to respond to California's ongoing drought. San Diego considers itself to be at "drought watch level one," and steps called for in the plan include: prompt repair of leaks; limiting pavement washings to health and safety uses; elimination of runoff and over-spray in landscaping; irrigating during the cooler parts of the day; using hoses with shut-off valves for car washing and watering; water service and refills at restaurants upon request only; allowing hotel guests to opt for not washing linens and towels daily; and using recycled water for construction where possible.
California Given $173 million for Drought Relief - 2/23/14
On February 14, 2014, President Obama announced a $173 million drought relief package for drought-stricken California. With 92% of the state in severe drought, the package will include livestock disaster assistance, money for food banks, and money to encourage conservation and watershed protection efforts.
Lawsuit Filed to Eliminate Right-of-Way Needed to Bring Water to Las Vegas - 2/23/14
On February 12, 2014, the Center for Biological Diversity filed a lawsuit in the U.S. District Court for the District of Nevada to eliminate the right-of-way over federal public lands that the Southern Nevada Water Authority needs for its proposed groundwater pumping and transportation project to bring water from northern Nevada to Las Vegas. Center for Biological Diversity v. Bureau of Land Management, D. Nev., No. 2:14-cv-00226, filed 2/12/14. The Center for Biological Diversity alleges that the Bureau of Land Management violated the National Environmental Policy Act (NEPA) in approving the right-of-way.
Chesapeake Climate Action Releases Report on Fracking in Maryland- 2/23/14
On February 12, 2014, the Chesapeake Climate Action Network released a study indicating that hydraulic fracturing in western Maryland could produce large amounts of natural gas from shale. However, the report also cautioned that extensive environmental damage was also likely. Read more here.
GAO Releases Report on Flood Insurance Program - 2/23/14
On February 12, 2014, the U.S. Government Accountability Office ("GAO") released its latest report on the federal Flood Insurance Program. The report concludes that recent changes have improved the Flood Insurance Program, but that it is still unclear whether the federal government has reduced its fiscal risks from flooding. In particular, the GAO concluded that ,"[t]he federal government does not fully budget for recovery activities after major disasters, thus creating a large fiscal exposure."
EPA Issues Final Guidance for Fracking Using Diesel - 2/23/14
On February 11, 2014, the U.S. Environmental Protection Agency released its Final Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels, which applies to the Safe Drinking Water Act's underground injection well control program.
EPA Given Extension to Issue Final Rules on Cooling Water Intake Structures - 2/23/14
On February 10, 2014, Riverkeeper agreed to give the U.S. Environmental Protection Agency ("EPA") an extension until April 17, 2014, to issue its final rules on cooling water intake structures for more than 1,000 power plants and industrial facilities. The original deadline imposed on the EPA after litigation was January 14, 2014.
Farm Bill Provides $150 million for Rural Utilities - 2/23/14
On February 7, 2014, President Obama signed the most recent Farm Bill into law. Among other provisions, the Farm Bill provides $150 million for small and rural water and wastewater utilities to build drinking water and wastewater infrastructure. The U.S. Department of Agriculture's Rural Development Rural Utilities Service will distribute the money.
Ceres Releases New Report on Water Demands from Fracking - 2/23/14
On February 5, 2014, the non-profit organization Ceres released its report entitled Hydraulic Fracturing and Water Stress: Water Demand by the Numbers. The report is based on water use data from over 39,000 oil and gas wells and identifies which companies face the greatest risk from water source stress.
EPA Issues Final Guidance for Fracking with Diesel - 2/15/14
On February 11, 2014, EPA released its final permitting guidance for oil and gas hydraulic fracturing activities that use diesel fuels under the Safe Drinking Water Act's underground injection control program. EPA recommends that drillers provide information on the seismic history of a region and perform tests on well casings to ensure that wells are properly constructed. The final guidance is available here.
GAO Report Concludes that EPA Should Monitor Contaminants More Robustly - 2/15/14
On February 10, 2014, the U.S. Government Accountability Office (GAO) released a new report stating that EPA has implemented all of the GAO's recommendations in its May 2011 report to improve the Unregulated Contaminant Monitoring Rule (UCMR) program. However, the GAO concluded that Congress should consider amending the Safe Drinking Water Act to allow EPA to monitor for more than 30 contaminants under certain circumstances, and to adjust statutory time frames so UCMR data can inform regulatory determinations in the same cycle. GAO, among other things, recommends that EPA vary the monitoring frequency based on contaminant type.
White Paper Recommends National Program for Testing and Evaluating Stormwater Controls - 2/15/14
On February 6, 2014, the Water Environment Federation’s (WEF) Stormwater Testing and Evaluation for Products and Practices (STEPP) Task Force released a white paper recommending a national testing and evaluation program for stormwater products and practices. The goal of a national program would be to meet the growing need for affordable and effective stormwater management infrastructure and to overcome sector hurdles that restrain innovation in stormwater product and practice technology development.
EPA and DOD Propose Performance Standards for Certain Discharges - 2/15/14
On February 3, 2014, the EPA and DOD proposed performance standards for eleven discharges into the navigable waters of the United States, listed on EPA's website here. These standards are the first of two proposed rulemakings expected by EPA and DOD in Phase II of the Uniform National Discharge Standards (UNDS) Program.
Gov. Brown Announces that California Must Prepare for Drought and Climate Change - 1/27/14
On January 22, 2014, in his State of the State address, California Governor Jerry Brown (D) announced that dealing with drought and the impacts of climate change are two significant challenges facing the state.
World Bank Launches Initiative on Managing Water and Energy Resources - 1/27/14
On January 21, 2014, the World Bank launched its "Thirsty Energy" initiative. According to its proponents, "Thirsty Energy is a global initiative aimed to help governments prepare for an uncertain future now by breaking disciplinary silos that prevent cross-sectoral planning and quantifying tradeoffs and synergies between water and energy resource management." It will examine such issues that water may put on the world's energy future.
Chesapeake Foundation Releases Report on Pollution Runoff - 1/27/14
On January 20, 2014, the Chesapeake Bay Foundation released a new report, "Polluted Runoff: How Investing in Runoff Pollution Control Systems Improves the Chesapeake Bay Region's Ecology, Economy, and Health." The report notes that urban and suburban runoff into the Bay pose an increasing threat to the Bay's restoration, but that potential solutions exist. You can view the article here.
Nevada Appeals District Court Decision Denying Groundwater Withdrawals for Las Vegas - 1/27/14
On January 16, 2014, Nevada filed its appeal of the district court ruling that said the state engineer must recalculate how much groundwater is available from rural basins before he can authorize the Southern Nevada Water Authority to extract and pipe the water to Las Vegas. State Engineer v. Millard County., Nev., No. 64815.
EPA Releases Assessment of Bristol Bay Ecosystems - 1/27/14
On January 15, 2014, the U.S. Environmental Protection Agency released its assessment of the potential environmental impacts on the Bristol Bay ecosystems from proposed copper and gold mines in the region. The assessment concluded that the mining poses significant short- and long-term risks to the region, especially with respect to salmon populations.
Department of Agriculture Forecasts Below-Normal Water Supplies for Most of the West for Next Six Months - 1/27/14
On January 14, 2014, the U.S. Department of Agriculture released its January 1 forecast of weather conditions for the next six months. It predicts below-normal water supplies for most of the West. Specifically, according to the report, “Early season runoff forecasts for the spring and summer show a deficit in California, Nevada, most of Oregon, southern Idaho, central Utah, and southern New Mexico. Early indications are that these areas will receive less than 50% of their normal runoff if climatic conditions don't change drastically. . . . Below normal (60 percent to 80 percent) runoff can be expected from the snowpacks in Washington, central Idaho, southern Utah, southwestern Wyoming, southern Colorado, and parts of northern New Mexico.”
National Network on Water Quality Trading Announced - 1/27/14
On January 14, 2014, a network of water-related NGOs and government organizations announced the National Network on Water Quality Trading. The Network seeks to facilitate information sharing on the topic of how to best use water quality tradition programs to promote clean water goals. You can view the article here.
Drinking Water Ban Lifted in West Virginia Following Chemical Spill - 1/20/14
On January 18, 2014, West Virginia lifted a 10-day ban on tap water that was imposed following a chemical spill in the Elk River near Charleston, WV, affecting the water supply of 300,000 people. Governor Earl Ray Tomblin declared a state of emergency. On January 17, Freedom Industries, the company responsible for the leak, filed for bankruptcy. On January 20, Gov. Tomblin and U.S. Sen. Joe Manchin proposed tighter regulations for chemical storage facilities including requiring annual inspections of above-ground chemical tanks.
California Declares Drought Emergency - 1/20/14
On January 17, 2014, Gov. Jerry Brown declared a drought emergency for California, stating that it is "perhaps the worst drought that California has ever seen since records (began) about 100 years ago." Gov. Brown also called for a voluntary "20% conservation of our water use" statewide and said he would take action to facilitate water transfers between regions in the state. See the Governor's Drought Proclamation here.
Great Lakes and Mississippi River Interbasin Study Released by Army Corps of Engineers - 1/9/14
On January 6, 2014, the U.S. Army Corps of Engineers released its Great Lakes and Mississippi River Interbasin Study. The report lays out eight options for controlling invasive species spreading between the river and the lakes, including a "business as usual baseline," but the Army Corps did not recommend a particular option.
National Blueways Conservation Program Cancelled - 1/9/14
On January 3, 2014, Secretary of the Interior Sally Jewell cancelled the National Blueways Conservation Program, citing Republican opposition, lack of money, and lack of staff. Secretary of the Interior Ken Salazar created the program in 2012 to help conserve and protect the nation's rivers and watersheds.
California Snow Survey Suggests Drought Is Continuing in 2014 - 1/9/14
On January 3, 2014, California published its first snow survey of 2014, which reveals that snowpack in the state is at about 20% of average and matches 2012, the previous driest year on record. The survey suggests that California is entering a third year of significant drought.
GE Releases Hudson River Report on PCB Clean-Up Project - 1/9/14
On December 30, 2013, General Electric issued a report in which it announced that it expects to finish dredging PCBs out of the Hudson River in 2016.
Chesapeake Bay Foundation Criticizes Federal Pollution Reduction Efforts - 1/9/14
On December 30, 2013, the Chesapeake Bay Foundation released a statement, concluding after a review of the Clean Water Blueprint that "the federal government is falling short in its commitments to expand forest buffers, rein in air pollution, and comply with the Clean Water Act when approving permits to reduce stormwater pollution from urban/suburban runoff."
Bureau of Reclamation Releases Report on Possible New Reservoirs in Northern California - 1/9/14
On December 30, 2013, the U.S. Bureau of Reclamation released its “North-of-the-Delta Offstream Storage Investigation 2013 Progress Report," which evaluates potential new reservoir locations in northern California. The report promoted the town of Sites as potentially the best location, favoring it over the proposed Colusa Reservoir Complex, a proposed facility at Newville, and a proposed facility at Red Bank.
FERC Releases EIS for Hydroelectric Project on Texas-Louisiana Border - 1/9/14
On December 30, 2013, the Federal Energy Regulatory Commission (FERC) released its Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA) for the proposed Toledo Bend hydroelectric project in the Sabine River on the border of Texas and Louisiana. The project would install a 1.3-megawatt generator, and FERC recommended that the project be required to monitor erosion, maintain recreational areas, and issue a schedule of its water releases. You can view the article here.
Nebraska Announces It Has Met Obligations to Kansas Under Interstate Compact - 1/9/14
On December 23, 2013, the Nebraska Department of Natural Resources announced that the State of Nebraska had met all of its obligations to the State of Kansas under the Republican River Interstate Compact. As a result, Nebraska plans to make all of the water stored in the Enders Reservoir, Harry Strunk Lake, Harlan County Reservoir, Swanson Lake, and Hugh Butler Lake available to irrigators.
EPA Appeals District Court Ruling that Farmyard Runoff Is Exempt from NPDES Permitting - 1/5/14
The EPA appealed to the Fourth Circuit a district court ruling that agricultural stormwater runoff is not subject to the National Pollution Discharge Elimination System permitting requirements under the Clean Water Act. The lower court ruled that EPA cannot require farmers to obtain a Clean Water Act discharge permit for litter or manure that is washed into navigable waters by precipitation because the runoff is agricultural stormwater runoff and, therefore, not a point source discharge subject to the NPDES permit requirement. See ALT v. EPA, 4th Cir., No. 13-2534, appeal filed 12/23/13.
Chesapeake Energy to Pay $3.2 Million Penalty for Clean Water Act Violations in West Virginia - 1/5/14
On December 19, 2013, the U.S. Department of Energy and EPA announced that Chesapeake Appalachia LLC, a subsidiary of Chesapeake Energy, will pay a $3.2 million penalty for violating section 404 of the Clean Water Act by discharging without a permit fill material into wetlands and watercourses in West Virginia. This is one of the largest fines ever levied under section 404. Also under the proposed consent decree, the company will pay to restore 27 sites in West Virginia that have been damaged by the unpermitted discharges, and will implement a comprehensive plan to comply with water protection laws at its natural gas extraction sites in the state. The proposed consent decree is open to public comment until Jan. 27, 2014.