American Bar Association
 
Water Resources

Water Resources


Message From The Co-Chairs



SEER’s Water Resources Committee is kicking off an exciting 2016-2017 bar year! Co-chairs Andrea Clark and Sorell Negro are delighted to be working with a terrific team of vice chairs:



  • Newsletter Vice Chair: Jeff Kray
  • Programs Co-Vice Chair: Roger Sims
  • Programs Co-Vice Chair: Nancy Bethurem
  • Year-in-Review Vice Chair: Mitra Pemberton
  • Membership Vice Chair: Scott Warner
  • E-Communications Vice Chair: Kyle Robisch
  • Social Media Vice Chair: Dave Gold

Kyle Robisch will be leading the fabulous Team Website in its fourth year of providing Committee members with water law case summaries and Hot News. These summaries involve water law cases all over the country. If you would like to contribute, such as by writing a case summary or volunteering as an editor, please contact Kyle directly at kylewrobisch@gmail.com.


We are also looking forward to SEER’s Fall Conference on October 5-8, 2016 in Denver, at the Denver Westin Downtown. Click here to learn more and register. We hope to see you there!


Under the direction of Nathan Bracken, the Committee is preparing for the 35th Annual SEER Water Law Conference, which will be March 28-29, 2017, at the Loews Hollywood Hotel in Los Angeles. This is the same SEER Water Law Conference that used to be held in February in San Diego, and was held in Las Vegas in 2013 and 2014; Denver in 2015; and Austin last year in connection with SEER’s Spring Conference. The 2017 conference will also be in connection with SEER’s Spring Conference, which will be March 29-31, 2017, also at the Loews Hollywood Hotel. The conferences are only possible with the help of the remarkable people on our planning committees. Thank you all!


Jeff Kray, Executive Editor of the Committee’s newsletter, continues to work hard on the multiple committee newsletters we will be publishing this year. If you have an article you would like to submit for consideration, please contact Jeff B. Kray at jkray@martenlaw.com.


We always welcome members to become involved in the Committee’s ongoing evolution, especially with respect to program suggestions and contributions to the Committee Newsletter. Contact us at aclark@downeybrand.com, (916) 520-5424, or SNegro@rc.com, (786) 725-4112, with any ideas you have about how the Water Resources Committee or SEER can better serve you, or if you want to be more involved, but aren’t sure how best to contribute or what opportunities would be best for you. We look forward to hearing from you and working together this year!


Andrea Clark and Sorell Negro
2016-2017 Co-Chairs, Water Resources Committee
ABA Section of Environment, Energy, and Resources


Committee Description, Awards, & Events

The Water Resources Committee focuses on substantive and practice developments that impact water allocation and availability for all water users. These developments fall into a broad spectrum of subject areas, including state water law; federal and tribal water law; issues arising under the Endangered Species Act and the Clean Water Act; interstate allocation of water; the Public Trust and Prior Appropriation Doctrines; reserved water rights; state, local and municipal water supply; water rights transfers; and federal reclamation law. In light of increasing issues of water scarcity, the committee's interests encompass the interdependence of water uses by all economic sectors - agriculture, mining, fisheries, tourism, energy, and water and wastewater utilities among them - and the inescapable connection between water quantity and water quality.

WATER RESOURCES COMMITEE WINS RECOGNITION FOR "BEST NEWSLETTER" OF 2015-2016

The Water Resources Committee was awarded a certificate of recognition for "Best Newsletter" of the 2015-2016 bar year!

According to the ABA, the “Best Newsletter” is distinguished by quality and consistency over a sustained period of time. The winning newsletter may also have demonstrated successful innovations in newsletter development, such as collaboration with other committees, involvement of young lawyers or law students, publication of high-profile authors, and production of special topic issues.

Congratulations and thank you to our Newsletter Editor, Jeff Kray, to past-chair, David Johnson, and current co-chairs Sorell Negro and Andrea Clark!


Recent Water Law Cases & Hot News

Recent Water Law Cases

You can visit the archived cases here.

Updated on June 26, 2017

Sierra Club v. County of Sonoma, 11 Cal. App. 5th 11 (2017) By Emily Taylor

On April 21, 2017, the First Appellate District Court of Appeal of California held that the Agricultural Commissioner of Sonoma County had properly determined that issuing an erosion-control permit under the county’s Grading, Drainage, and Vineyard and Orchard Site Development Ordinance (“the Ordinance”) was a “ministerial” act, and therefore not subject to the requirements of the California Environmental Quality Act (CEQA). Sierra Club v. Cty. of Sonoma, 11 Cal. App. 5th 11 (2017).

Natural Resources Defense Council v. Norton, 2017 WL 735687 (E. D. Cal. Feb. 23, 2017) By Connor Plant

In February 2017, the United States District Court for the Eastern District of California addressed a complaint claiming that the renewal, implementation, and approval by the U.S. Bureau of Reclamation (Reclamation) and The U.S. Fish and Wildlife Service (FWS) of certain long-term water contracts (contracts) in California violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). Id at *1. The challenge was brought by a coalition of environmental interest groups led by the Natural Resource Defense Council (NRDC). The court discusses two of the plaintiff’s arguments: a) the U.S. Bureau of Reclamation failed to reinitiate consultation on the alleged impact on the ESA listed winter-run and spring-run Chinook salmon; and b) the contract renewal amounts to an unlawful “take.” Id. The defendants brought 12(b)(6) motions to dismiss both claims. Id. at *9.

Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District 849 F.3d 1262 No. 15-55896 (9th Cir. March 7, 2017) By Vanessa Zapata

On March 7, 2017, the United States Court of Appeals for the Ninth Circuit held that the Agua Caliente Band of Cahuilla Indians (the Tribe) impliedly reserved the right to groundwater in California’s Coachella Valley when the United States created the Tribe’s reservation. Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262, 1265 (9th Cir. 2017).

Friends of Great Salt Lake, et al. v. Utah Department of Natural Resources 2017 WL 1024614 (Utah March 15, 2017) By Megan M. Mustoe

In March 2017, the Utah Supreme Court largely denied a challenge from Friends of Great Salt Lake, et al. (Friends) against the Utah Department of Natural Resources’ (DNR) denial of Friends’ petition to DNR to: (1) conduct a consistency review of DNR’s record of decision regarding a lease on the Great Salt Lake (reversed and remanded); (2) redo its analysis or take site-specific analysis in relation to the lease (affirmed); and (3) write a declaratory order on the correct applicability of Utah’s Public Trust Constitutional clause and correlating statute (affirmed).

Board of Water Works of Des Moines v. SAC County Board of Supervisors 2017 WL 382402 No. 16-0076 (Iowa Jan. 27, 2017) By Dustin Davis

On January 27, 2017 the Supreme Court of Iowa answered four certified questions of law from the United States District Court for the Northern District of Iowa. Board of Water Works of Des Moines v. SAC Country Board of Supervisors, No. 16-0076 at 1 (Iowa 2017).

Hawkes Co., Inc. v. United States Army Corps of Engineers 2017 WL 359170 Civil No. 13-107 ADM/TNL (D. Minn. Jan. 24, 2017) By Stephanie Biggs

Hawkes is a peat mining company that plans to mine 150 acres of wetlands (the Wetlands) from a 530-acre plot. Hawkes Co., Inc. v. United States Army Corps of Engineers, Civil No. 13-107 AD/TNL at 1. The operation would involve discharging materials into the Wetlands. Id. The Clean Water Act (CWA) prohibits discharge of materials into “navigable waters” without a permit and gives the Army Corps of Engineers (the Corps) authority to issue permits for these discharges. Id. The Corps determines whether a wetland qualifies as “waters of the United States” using the “significant nexus” test outlined in Rapanos v. United States 547 U.S. 715, 778-82 (2006) (Kennedy, J., concurring). Id. A significant nexus is found if the wetlands in question significantly affect the physical, biological, or chemical integrity of the navigable waters. Id. at 2.

Upper Trinity Regional Water District and Texas Commission on Environmental Quality v. National Wildlife Federation, 2017 WL 372166 (Tx. Ct. App. Jan. 26, 217) By Connor Plant

In January 2017, the Court of Appeals of Texas, Houston (1st Dist.) rejected a challenge from the National Wildlife Federation (NWF) against the Texas Commission on Environmental Quality’s (TCEQ) issuance of an interbasin water transfer permit to Upper Trinity Regional Water District, a wholesale water provider serving approximately 30 cities and utilities in the northern part of Texas. Upper Trinity Regional Water District and Texas Commission on Environmental Quality v. National Wildlife Federation, 2017 WL 372166.

Gunderson v. State 2016 WL 7125255 (Dec. 7, 2016) By Erica M. Davis

On April 4, 2014, plaintiffs Don and Bobbie Gunderson (“Gunderson”), owners of three lots of property on Lake Michigan in Long Beach, Indiana, sought a declaratory judgment that their property always extends to the water’s edge The State of Indiana and the Indiana Department of Natural Resources (“DNR”), is joined by Alliance for the Great Lakes and Save the Dunes (“Alliance-Dunes”) and Long Beach Community Alliance (“LBCA”), who intervened in the case. Defendants argued that regardless of whether the land is covered by water at any given moment, all land up to the ordinary high water mark (“OHWM”) is held in trust for the public. Essentially, the issue was determining what rights exist when private and public titles to coastal land overlap. The court first determined whether public rights exist and then, finding that they do exist, considered their scope.

In re Hibbing Taconite Mine and Stockpile Progression 2016 WL 7042000 (Minn. Ct. App. Dec. 5, 2016) By Rebecca Ricard

The Court of Appeals of Minnesota (Court) ruled that the Minnesota Department of Natural Resources (DNR) did not have the statutory authority to allow “permit to mine” applicants to reserve credits in project-specific wetlands replacement plans for use in later mining activities. In re Hibbing Taconite Mine and Stockpile Progression, No. A16-0363, 2016 WL 7042000 (Minn. Ct. App. Dec. 5, 2016). Those credits needed to be deposited into the State wetlands bank under a wetland banking plan, which is subject to oversight by the Minnesota Board of Water and Soil Resources (BWSR). Id.

Natural Resources Defense Council v. County of Los Angeles 2016 US App. LEXIS 19541 (9th Cir. 2016) By Carol Ryan Humphries

On October 31, 2016, the United States Court of Appeals for the Ninth Circuit reversed the United States District Court for the Central District of California’s (“District Court”) dismissal of the claim for injunctive relief filed by the Natural Resources Defense Council and the Santa Monica Baykeepers (“Plaintiffs”) against the County of Los Angeles and the Los Angeles County Flood Control District (“Defendants”) for violating its National Pollutant Discharge Elimination System (“NPDES”) permit. The District Court had granted Defendants’ motion to dismiss Plaintiffs’ claims for injunctive relief as moot. NRDC v. Cnty. of L.A., 2016 U.S. App. LEXIS 19541, at *2 (9th Cir. Oct. 31, 2016).

Natural Resources Defense Council v. McCarthy 2016 LEXIS 152898 No. 16-cv-02184-JST (N.D. Cal. Nov. 3, 2016) By Stephanie Biggs

On August 10, 2016 the San Joaquin Tributaries Authority (“Proposed Intervenors”) moved to intervene in a case brought by the Natural Resources Defense Council, The Bay Institute, and Defenders of Wildlife (collectively, “Plaintiffs”) against the United States Environmental Protection Agency (“EPA”) and EPA Region IX (collectively, “Defendants”).Natural Resources Defense Council v. McCarthy, No. 16-cv-02184-JST at 2–3 (N.D. Cal. Nov. 3, 2016). Plaintiffs opposed this motion to intervene; Defendants did not. The Court granted this motion and Proposed Intervenors’ motions for judicial notice of certain agency documents and public records. Id. at 2, 5–6.

California Dept. of Water Res. v. United States 2016 WL 5795800 (Oct. 4, 2016) By Erica M. Davis

On December 22, 2015, the California Department of Water Resources (“CDWR”) filed a breach of contract action seeking $10,473,957 in damages from the United States Bureau of Reclamation (“USBR”) and the Western Area Power Administration (“WAPA”). These damages arose from charges the CDWR incurred through payments to the California Independent Systems Operator (“CAISO”) to schedule energy for delivery to water storage and distribution facilities—specifically the Joint-Use Facilities and the Banks Pumping Plant—in the State of California on behalf of the USBR. Since the CDWR paid a wide range of fees and penalties on behalf of the USBR, plaintiff claimed there is a contractual obligation pursuant to the Contracts Dispute Act (“CDA”), 41 U.S.C. §§ 7101-09.

In re EPA & Dep't of Def. Final Rule 817 F.3d 261 (6th Cir. 2016) By Rebecca Ricard

In an important win for the Environmental Protection Agency (EPA) and the Department of Defense, the Sixth Circuit Court of Appeals (“Court”) denied multiple motions to dismiss the action against the agencies’ Clean Water Rule (“Rule”). The Rule’s intent was to clarify the scope of what constitutes “waters of the United States.” In re U.S. Dept. of Defense, 817 F.3d 261, 263 (6th Cir. Feb. 22, 2016). Multiple petitioners had filed motions to dismiss, arguing that the Court does not have subject matter jurisdiction under 33 U.S.C. 1369 et al. (“Clean Water Act”). Id. Under the Clean Water Act, circuit courts only have direct jurisdiction over certain specified actions of the EPA Administrator (“Administrator”). The Court found it had jurisdiction over this case through a de novo review of Subsections (E) and (F) of the Clean Water Act.

Reading Area Water Authority. v. Schuylkill River Greenway Association 2014 WL 4745698 (Pa. Sept. 24, 2014) By John Hunt

In 2010, the Reading Area Water Authority (“RAWA”), a municipal authority in Reading, Pennsylvania, filed a Declaration of Taking Complaint against the Schuylkill River Greenway Association (“the Greenway”) in Berks County common pleas court, in which RAWA requested a decree condemning a 50-foot-wide easement across the Greenway’s property.

Alt v. United States Environmental Protection Agency 758 F.3d 588 (4th Cir. July 14, 2014) By Sabrina Williams

On July 14, 2014 the United States Court of Appeals for the Fourth Circuit affirmed a decision from the United States District Court for the Northern District of West Virginia denying the Chesapeake Bay Foundation’s (“CBF”) motion to intervene in a poultry farmer’s lawsuit against the Environmental Protection Agency (the “EPA”).

Hot News

You can visit the archived news here. If you've seen a recent news story you would like us to share, please contact Kyle Robisch.

EPA Trying to Reverse Obama-Era Water Law; Agency to Rewrite Rules - June 28, 2017
The EPA is moving to recodify its Waters of the United State rule as it existed before the 2015. EPA Administrator Scott Pruitt signed the proposed rule on Tuesday, June 27th, and the agency is now in the process of seeking public comments on the proposal to rescind the Obama-era rule. Colorado Representative Scott Tipton claims he welcomes the change because the Obama-era rule would have usurped long-held state water law and threatened access to private water rights. Conversely, Kristen Green of Conservation Colorado says rescinding the rule would put Colorado's water sources at greater risk of pollution and development.

Unresolved Flint Water Crisis Allowing Law Firms to Rake in Millions of Dollars - July 1, 2017
In wake of the Flint Water Crisis, Michigan has spent at least $14 million on hiring lawyers from at least 33 firms, and those costs are expected to continue rising. Though Attorney General Bill Schuette has not said how much more legal assistance is needed for his investigation, the legislature has authorized $2 million for the next fiscal year. Legal bills for governor Rick Snyder have been steep as well. Snyder's spokeswoman has argued that the spending is appropriate because the legal fees are related to actions taken in his official capacity as governor.

Oregon Rancher Challenging Well Shutdown - July 7, 2017
Oregon rancher Tom Mallams is challenging the state government's method of determining when groundwater well pumping must be shut down to avoid disrupting surface water rights. Mallams claims that the Oregon Water Resources Department (OWRD) bases their shut down orders on an erroneous mathematical model. Mallams has petitioned the Marion County Court Judge to overturn OWRD's order because it is "not supported by substantial evidence" as required by Oregon law.

The Next Crisis for California Will Be the Affordability of Water - July 7, 2017
In California and across the nation, concern about water affordability has been spreading. The cost pressures are due to aging water infrastructure, increasing water contamination, increasing standards for cleanliness, and climate change. Because water demand is stable or even dropping, water agencies can only find revenue to cover the bill by raising rates on consumption. Philadelphia initiated the nation's first income-based water rate on July 1. Voters in Atlanta, which is facing an enormous bill for infrastructure construction and maintenance, approved a four-year extension of a 1% sales tax to cover the costs. Big picture solutions propose to stay on top of maintenance and not invest in overly expensive water sources, such as desalination.

Kasich Signs Law in Effort to Expand Fight Against Pollution - July 7, 2017
Ohio Governor John Kasich signed into law the state's latest effort to fight pollution and dumping that endanger Lake Erie’s water quality. The bill requires the state to establish rules for the safe reuse of sediment dredged from harbors and river mouths other than dumping it into the open waters of the lake's western basin. A current demonstration project is studying the viability of growing crops from soil that has dredge silt mixed into it.

Tipton Reintroduces Bill to Protect Water Rights, Preserve State Water Law - June 21, 2017
Congressman Scott Tipton, who represents Colorado's 3rd Congressional District, has reintroduced the Water Rights Protection Act, a bill that would uphold federal deference to state water law and prevent federal takings of privately held water rights. In 2014, the U.S. Forest Service proposed the Groundwater Resource Management Directive, which gave the federal government jurisdiction over groundwater in a manner that was inconsistent with long-established state water law. The Forest Service withdrew the measure but has indicated a desire to issue a revised directive in the future.

State Lawmakers Override Veto to Pass Safe Drinking Water Law - June 20, 2017
With strong bipartisan votes in both the House and Senate, the Maine Legislature ​overrode ​the ​governor's​ veto​ of safe drinking water legislation. The new law will become effective ​this fall ​to help boost water testing and protect thousands of rural Maine families from the silent epidemic of arsenic-contaminated well water by establishing a Private Well Safe Drinking Water Fund. The Maine Center for Disease Control will also conduct outreach and education to raise awareness about the problem through the fund.

New Oversight of Groundwater Taking Shape in Sonoma County - June 11, 2017
In the aftermath of a historic five-year drought that prompted wholesale overdrafting of Central Valley aquifers — triggering dramatic collapses in the landscape — California is replacing a largely hands-off approach to groundwater with a regulatory system that includes metering, monitoring, and potentially limiting pumping, along with fees to pay for the regulatory processes. Hundreds of agencies statewide are being formed to implement a landmark California water law to govern groundwater in the state. The Sustainable Groundwater Management Act, signed in 2014, gives local agencies in 127 statewide groundwater basins until 2020 or 2022 to come up with plans for achieving sustainability within the ensuing 20 years.

Governor's Team Looks to Shore up Utah's Water Future - June 15, 2017
A four-year effort to devise a blueprint for Utah's water future into 2060 is built around 11 broad recommendations recently released from Utah's State Water Strategy Advisory Team. Utah is in the unenviable position of being the second driest state in the nation, struggling with multiple years of drought that has renewed calls for more emphasis on water conservation and new approaches to water use data collection, as well as the need to increase funding for water infrastructure repairs. The public has the opportunity to comment on the draft report through late June.

Zebra Mussels May Worsen Lake Health Hazards Caused by Farm Pollution - June 24, 2017
An explosion of the zebra mussel population in Lake Mendota this year could mean more foul-smelling shoreline slime and repeats of the major fish kill and vast bloom of toxic bacteria that hit Madison, Wisconsin’s lakes already this summer, experts say. Under state law, farmers are offered financial incentives to limit runoff, and larger farms must submit plans for spreading manure on fields. Opponents of stricter regulations say there are technical difficulties in regulating runoff, but conservationists say those could be overcome if politicians were willing get tougher in dealing with the powerful agriculture industry. Some hope the recent large-scale bacterial bloom will be a wake-up call for Madison residents who witnessed it and its aftermath.

Agriculture Beware: Groundwater Future Belongs to SCOTUS - May 31, 2017
The Supreme Court has bucked expectations and granted certiorari for a case between Mississippi and Tennessee over the rights to an interstate aquifer. Residents of Memphis, TN have enjoyed use of the extremely pure water since 1887. The State of Mississippi brought suit first against the utility company Memphis Light, Gas and Water (MLGW), claiming that interstate groundwater rights differ from groundwater used within a single state boundary and that MLGW and the State of Tennessee were wrongfully using Mississippi’s share of the aquifer. Mississippi lost in both of the lower Courts, however, if the Supreme Court finds in its favor, the ruling could greatly upset long-established water law. The decision will set precedent on how the Court views trans-boundary groundwater flowing beneath multiple state borders.

A Right to Bingo, but Not Clean Water, in New York’s Constitution - May 26, 2017
Activists and lawmakers in New York are pushing for an amendment to the state constitution that would provide “a right to clean air and water, and a healthful environment.” This action is spurred in part by the numerous cases of contaminated water found throughout the country, in conjunction with the perceived hostility of the Trump Administration towards progressive environmental policy. However, the bill to amend has received pushback from business groups in the state, and is uncertain to pass the Republican-controlled state senate.

New Law Aims to Protect Water Supplies in Ohio - May 31, 2017
In wake of the Flint, Michigan water crisis, a new law requiring public water systems to monitor lead and copper levels was signed last year by Ohio Governor John Kasich. The new legislation has received a warm reception from many plant and systems managers who have had no problems implementing the bill. Due to their already clean track record, some plants that have consistently maintained low lead and copper levels may be tested as seldom as once every three years. Ultimately the law is aimed at protecting consumers.

Dakota Access Pipeline, Law Officers Had Close Relationship - May 30, 2017
Recently released documents reveal the close working relationship had by independent security firm TigerSwan, hired by ETP, the company building the Dakota Access Pipeline, and local law enforcement. The development of the pipeline was a source of protest given concerns about the environmental impact it might have on the Missouri River. The documents reveal that TigerSwan placed a liaison in the law enforcement operations center, and also maintained regular communications with the Morton County Sheriff’s office. In light of the recently released documents, this relationship, as well as the highly militarized tactics used by law enforcement during the protests, have been highly criticized by the Lakota People’s Law Office.

Colorado Legislature Passes New Bill that Clarifies Water Uses - June 1, 2017
The Colorado legislature passed a bill this session that allows water rights holders to divert water from streams for uses other than agricultural or municipal use, thereby expanding the scope of “beneficial uses” of water. The bill was drafted in response to a 2015 Colorado Supreme Court decision which held that “aesthetic, recreational, and piscatorial” uses do not constitute a “beneficial use” of water under Colorado law.

Advocates Celebrate Protection of Nevada Water Law as Legislature Adjourns - June 6, 2017
Extensive opposition from environmentalists, sportsmen, ranchers, farmers, rural residents and governments, tribes, and businesses resulted in the death of a Nevada bill intended to reform current state water law. The bill was intended to clarify certain statutory language and laid out a “3M” approach of “monitoring, management, and mitigation.” However, the bill was criticized as muddling, rather than clarifying, the relevant statutory language. While water law reform is still on the horizon in Nevada, some say the bill’s failure has resulted in a more open dialog between lawmakers and stakeholders.

EPA Delays Compliance for Polluted Water Releases from Power Plants - May 26, 2017
EPA Administrator Scott Pruitt announced a 30-day public comment period on a plan to delay compliance dates for an Obama administration regulation on polluted water releases from power plants. The regulation would require power plants to implement the “best available technology economically achievable” for waste streams. The EPA’s decision to delay the regulation was, in part, a response to industry group petitions to reconsider the rule. The delay is a “temporary stopgap measure” while the agency reviews the regulation.

House Passes Bill Reversing Water Permit Requirement for Pesticide Spraying - May 25, 2017
On May 24, the House passed legislation that would allow pesticides to be sprayed near waterways without a Clean Water Act permit. The legislation was part of the Republican-sponsored Reducing Regulatory Burdens Act, which aims to reverse “overly broad” requirements for NPDES permits under the CWA. A similar bill has been proposed in the Senate, entitled the Sensible Environmental Protection Act.

Upper Delaware River Water Dispute - May 26, 2017
Officials from New Jersey and New York continue to argue over how much water should be made available to downstream states on the Delaware River from reservoirs that provide water to New York City. Without an agreement, reservoir releases to the river will be cut on June 1st, resulting in low water levels and potentially high water temperatures in the river, which would jeopardize the river’s trout fisheries. New Jersey is refusing to renew the current agreement without changes to ensure that New York City does not over utilize water from the river.

Twitchell Dam Operators Sued Over Water Releases For Steelhead - May 5, 2017
Two environmental groups, San Luis Obispo Coastkeepers and Los Padres ForestWatch, have sued the operator of the Twitchell Dam east of Santa Maria, California in an attempt to alter the timing, duration, and intensity of water released to benefit the endangered steelhead fish. The lawsuit contends that California law requirs dam operators to release sufficient water to keep fish stock in good condition. SLO Coastkeeper Gordon Hensley explains, "[r]eleasing water for fish migration will have virtually no impact on agricultural or domestic supply – our experts estimate 4 percent of reservoir water would be affected." Because of its limited impact, the lawsuit should not conflict with another water rights case which involving hundreds of defendants in a dispute regarding rights to the Santa Maria groundwater basin.

Irrigation Law Changes Risking Prairie Wetlands Get Tucked Into Minn. Environmental Bill - May 6, 2017
Tucked away in the massive environmental bill that the Minnesota legislature will send to Governor Mark Dayton are slight changes to state irrigation law that could imperil a collection of delicate prairie wetlands known as calcareous fens that are currently protected under state law. Because regulators have historically denied permits to farmers to prevent risk to these fens, Republican lawmakers now want to give irrigators priority for often-scarce groundwater. Supporters, primarily farmers and legislators, claim that the permit is tied to the value of the land. Ecologists and regulators, on the other hand, claim this flies in the face of Minnesota’s long history of fair-share water laws.

Mega-Farms Targeted by Lawmakers - May 7, 2017
In South Carolina, some state legislators are circulating proposals that push for tighter controls on mega-farms. Rep. James Smith’s bill would no longer exempt agriculture from rules that apply to industries seeking large withdrawals of surface water. Farms seeking to withdraw 3 million gallons or more per month would require permits to do so. Sen. Chip Carmpsen’s bill would also remove the agricultural exemption from having to obtain permits for large surface water withdrawals but would apply to farms seeking to withdraw 425 million gallons or more per month. Rep. Bill Taylor’s bill would ban crop dusting within 1,000 feet of schools during school hours or during extracurricular activities. Finally, the SC Department of Health and Environmental Control is expected to release a report as early as this month that analyzes whether groundwater should be regulated in some counties with large farms.

New Regs – House Bill Dismay Lower South Platte District - May 9, 2017
Colorado’s Lower South Platte Water Conservancy District's executive committee opposes new regulations standardizing well measurement and a law that simplifies how water consumption is calculated in water use changes. According to the committee, the proposed regulations aim to standardize well metering, but do not account for particulars of different wells throughout the state. The law unnecessarily presumes alternative transfer methods, a way for farmers to lease water to municipalities, are completely consumptive leading to the functional equivalent of a "buy and dry."

N.Y.'s New Laws Protecting Drinking Water From Emerging Contaminants - May 10, 2017
This year New York has signaled its intention to move beyond the existing federal Safe Drinking Water Act requirements by adopting the Emerging Contaminant Monitoring Act (ECMA) and the Mitigation and Remediation of Certain Solid Waste Site and Drinking Water Contamination. The ECMA is designed to ensure that public water supplies are tested and that the test results are promptly disseminated to customers of public water systems. The Solid Waste Site and Drinking Water Contamination Act is designed to address the inability of the Department of Environmental Conservation to protect drinking water supplies from contamination with regulated hazardous substances or substances on the forthcoming list of emerging contaminants.

Air Force Thumbs its Nose at New Michigan Water Law - April 24, 2017
The U.S. Air Force says it won't provide safe drinking water to Oscoda residents affected by chemical pollution from the former Wurtsmith Air Force base because it is "not authorized" to comply with the requirements of the new Michigan law, which took effect in January. Air Force spokesperson Mark Kinkade said the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which created the Superfund program, only compels the U.S. government to comply with state law if it is not discriminatory. The Air Force maintains Michigan’s new law fails that test.

Thirsty Mega-Farms Siphon S.C.'s Rivers as State Watches - April 25, 2017
During the summer of 2015, a national potato grower pumped more than 1 billion gallons of water from a small river onto the large crop farm it had recently opened in South Carolina. The irrigation effort kept potatoes alive and growing in the hot, dry weather - but it also did what many people feared. The Walther Farms irrigation pipe lowered water levels in the South Fork of the Edisto River, according to the S.C. Department of Natural Resources. An array of interests maintain that South Carolina should tighten its water laws before industrial-scale agriculture siphons too much water from the state’s rivers.

Legislature Passes Bill Exempting Wells on Family-Transfer Land - April 16, 2017
Last year the Montana Supreme Court cracked down on state exemptions for water wells on family-transfer land, saying that these exemptions gave users unfair access to limited amounts of water in many areas. A bill in the Montana legislature, however, is poised to change that. Senate Bill 248 would once again allow exemptions for wells on family land transfers. Both the family land transfers and exempt wells are contentious issues, with critics claiming both are ripe for abuse.

Yucca Mountain Bill Can Overcome Nevada Opposition: Shimkus - April 26, 2017
Rep. John Shimkus (R-Ill.) says he is confident the Energy Department will back Congress' efforts to restart work on Yucca Mountain as a permanent repository for the nation's nuclear waste, despite opposition from Nevada leadership. Nevada Senators and Representatives have raised concerns about changes to the water and air permitting processes in draft legislation meant to restart work on Yucca Mountain. The bill proposes to prevent Nevada from refusing water permitting requests from the Department of Energy.

Can California Reverse EPA's U-Turn on Pesticide Ban? - April 19, 2017
A year and a half ago, the Environmental Protection Agency announced it would ban the use of the neurotoxic insecticide chlorpyrifos on food crops. Then, at the end of March -- reversing course on decades of agency science and a decision that was years in the making -- EPA Administrator Scott Pruitt announced that the agency would not ban the pesticide after all. If California state authorities determine the science does not support its use, state-level authorities have the authority to ban a pesticide, and rallies are being held across the state to do just that.

Israeli Firm to Mass-Produce Humidity Extracting Technology This Year – April 16, 2017
Water-Gen Ltd. is poised to begin large scale manufacturing of its novel water-producing technology. The devices extract humidity from the air more efficiently than existing devices, producing a gallon of drinking water using one kilowatt of energy. The technology will be available at a range of scales, from industrial units that can produce nearly a thousand gallons per day, to home or office units that meet smaller needs. Although desalination is still a cheaper solution, the company notes that this technology is practical where poor infrastructure is a barrier to the use of desalination.

EPA Reconsidering Effluent Guidelines and Standards for Steam Electric Power Generation – April 13, 2017
Calling the reconsideration “another example of EPA implementing President Trump’s vision of being good stewards of our natural resources,” Administrator Scott Pruitt announced the agency’s decision to stay the rule’s compliance deadlines. The final rule would amend effluent guidelines for steam electric power generating facilities subject to the Clean Water Act. According to Pruitt’s statement, the Obama-era requirements embodied in the final rule are neither economically nor technologically feasible within the timeframe the rule originally contemplated. “It is in the public’s best interest to reconsider the rule,” Pruitt concluded.

Indiana Steel Plant Spills Contaminated Water into Lake Michigan – April 11, 2017
The U.S. Steel plant in Portage, Indiana reported contaminated wastewater spilled into a waterway 100 yards from Lake Michigan. The water was contaminated with hexavalent chromium, a known carcinogen. Chicago Mayor Rahm Emanuel released a statement criticizing the company for the spill, but noted that the city’s tap water remains safe to drink. Still, communities near the spill shut off their drinking water intakes, and several area beaches are temporarily closed.

Sen. Cruz Files Bill to Ease Restrictions on Importing Water, Invasive Species – April 11, 2017
The Lacey Act restricts the sale of endangered and invasive species across state lines, and as a result prevents states from importing water from sources affected by invasive species like zebra mussels. Under the bill introduced by Senator Cruz, a state would be able to buy water containing invasive species, as long as the same species are also present in the purchasing state. The bill’s proponents argue that it will increase access to water with minimal impact on the spread of invasive species. Opponents point out that some potential receiving states are already spending millions to combat invasive species they may then simply re-import.

New Oroville Spillway Pledged - March 28, 2017
The acting director of the California Department of Water Resources, Bill Croyle, pledged that the Oroville Reservoir would have a new spillway by next fall, after the main spillway collapsed two months ago, causing an evacuation of 200,000 residents downstream of the dam. Croyle said plans for the spillway would be unveiled by early next week; engineers forecast there could be significant risks if the gated spillway is not operational by November 1st. Currently, dam managers are working to stop flows down the main spillway in order to stop further degradation.

Dominion Virginia Power Violated Clean Water Act with Coal Ash Storage Leak - March 23, 2017
Judge John Gibney Jr. of the U.S. District Court for the Eastern District of Virginia found that arsenic had leaked into the Elizabeth River from the coal ash stored at Dominion Virginia Power’s Chesapeake Energy Center, in violation of the Clean Water Act. Gibney has required Dominion to perform testing and asked both parties to the litigation to submit briefs with a “detailed remedial plan.” The Judge rejected the Sierra Club’s request that Dominion be forced to dig up the coal ash and move it to a lined municipal landfill to prevent future leaks. The Southern Environmental Law Center, which represented the Sierra Club, said that this is the first time a federal judge has found, after a full trial, that a utility “broke the law through its storage of coal ash.”


Congress Fails to Reauthorize North American Wetlands Conservation Act - March 31, 2017
A bipartisan coalition of six former directors of the Fish and Wildlife Service is urging Congress to reauthorize the North American Wetlands Conservation Act, a habitat protection program that has not been renewed since 2012. The coalition of directors emphasized the importance of the NAWCA to the conservation of wetland wildlife and habitats, and cited the “excellent returns on federal government investment through . . . direct job creation and local revenue from outdoor recreation.” The NAWCA, established in 1989, is an incentive-based grant program that has funded more than 2,600 projects throughout the nation and contributed to the conversation of 33.4 million acres of land.

Buffer strips ahead of deadline; Mark Dayton opposes big changes to law - March 16, 2017
Landowners are making good progress toward complying with Minnesota Governor Mark Dayton’s signature water-quality law, leaving the governor firmly opposed to any legislative attempts to delay or revoke the new standards.“To delay or weaken it is not acceptable and not negotiable,” Dayton said Thursday at a news conference celebrating landowners’ growing compliance with a law requiring vegetative buffers be installed between public waters and private lands by November.

Legal rain barrels could catch hundreds of gallons in Nevada - March 14, 2017
Assembly Bill 138 could allow Nevada residents to legally set up rainwater barrels to collect rainwater off their rooftops. Assembly Bill 209 addresses Nevada’s “use it or lose it” water policy and would allow the state engineer to extend the timeframe before forfeiting water rights from basins.

Fla. Spent $240M On Legal Fights, Including Water War With Ga. - March 13, 2017
The decades-long water dispute took a new and expensive turn when Florida Governor Rick Scott asked the U.S. Supreme Court in 2013 to limit the water Georgia takes from the Apalachicola, Chattahoochee and Flint river basin. Florida argues that Georgia has guzzled more than its share of water at the expense of Florida's oyster industry. This dispute has cost Florida more than $41 million in the last 18 months alone.

Trump’s Order May Foul U.S. Drinking Water Supply - March 10, 2017
On February 28, Trump ordered a review of the Clean Water Rule, with the aim of rolling it back. President Obama finalized the Clean Water Rule in June 2015 to clear up confusion over which water bodies the federal government can regulate under the 1972 Clean Water Act, the main federal law for water pollution. Now, legal experts say, Trump appears to want to restrict what types of waters are regulated, much more so than the Clean Water Rule and the regulations before it. The EPA estimates that one in three Americans, about 117 million people, draw all or some of their water from public drinking water systems that depend at least partly on the streams which the Clean Water Rule would protect.

Landmark ruling lets tribe tap Calif. aquifer - March 8, 2017
A 9th U.S. Circuit Court of Appeals panel ruled that a Native American tribe has a legal right to groundwater in Southern California's arid Coachella Valley. The Ninth Circuit held that when the United States established a reservation for the Agua Caliente Band of Cahuilla Indians, it implicitly created a right to tap the water below, wrote Judge Charles Tallman for the three-judge panel. The ruling marks the first controlling opinion that the federal "reserved rights" doctrine applies to groundwater. The doctrine says that the United States intended to reserve water for tribes when it established reservations to the extent necessary to accomplish the purpose of the reservation.

Bill to Fix Rural Water Rights Passed by State Senate - March 1, 2017
Washington Senate Bill 5239 passed with 28-21 vote on Feb. 28, 2017. The bill seeks to reverse a recent state Supreme Court decision, known as the Hirst decision, involving water rights and the use of domestic wells. The Hirst decision ruled that counties must ensure water is legally and physically available in certain areas before issuing building permits. Counties reacted to the ruling by temporarily halting rural development. The legislation would ensure so-called permit-exempt wells could to be used for development and would allow hundreds of property owners to continue building homes.

Trump Moves to Kill Obama Water Rule - February 28, 2017
Donald Trump took the first step today toward killing a landmark Obama administration rule aimed at protecting the country's rivers, streams, and wetlands, but which was fiercely opposed by industries from agriculture to homebuilding as a federal power grab. The executive order signed by Trump is the latest in a series of moves by the White House to sweep away regulations from the Obama administration that conservatives have blasted as a drag on the U.S. economy. Trump called the Waters of the U.S. rule "one of the worst examples of federal regulation," that showed the government had "truly run amok."

Nestle Public Review to be Extended Again While DEQ Waits for Water Data - February 27, 2017
The Michigan Department of Environmental Quality is extending public review for the third time on an application by Nestle Ice Mountain to increase the amount of groundwater it pumps in Osceola County. On Feb. 14 the DEQ sent Nestle Ice Mountain natural resources manager Arlene Anderson-Vincent a letter outlining 21 specific requests for additional scientific data. The DEQ also requested legal documentation to support the claim that Nestle's pumping would be "reasonable under common law principles of water law in Michigan" and "will not violate public or private rights and limitations."

Montgomery County Water Fight Could Move to Ballot Box - February 27, 2017
The constant wrangling over Montgomery County's underground water supplies soon could move from the courthouse to the ballot box. With a legal challenge to the Lone Star Groundwater Conservation District's pumpage restrictions pending, there's a new legislative push to alter the makeup of its governing board from nine appointed members to five elected ones. The reasoning: the board's critics might be able to get the changes they want by appealing to voters instead of judges.

Sinking Land Crushes California Groundwater Storage Capacity - February 27, 2017
Unbridled pumping of aquifers in California's San Joaquin Valley is severely reducing the land's capacity to hold water, according to a Stanford University study. The loss of storage is due to subsidence, which is the companion of soils as a result of removing too much water. For years, groundwater users in the San Joaquin Valley, primarily farms with limited surface water supplies, have pumped more wanter than is available. A state law that was signed in 2014 seeks to halt land subsidence and return overdraft groundwater basins to sustainable use.

Domestic Wells Could be Regulated During Bad Drought - February 23, 2017
Current Nevada water law could force wells to be shut down, according to a report from a Legislative subcommittee examining how Nevada manages its water. Nevada law prohibits mining water from a basin, which means that users cannot take more water than is replaced by natural sources. The state is divided into 256 hydrographic basins, and more than a fifth of those are considered severely over appropriated by the state engineer.

Court Deems Water Right for Cannabis Grow to be Lawful - February 21, 2017
The water referee in Division 5 Water Court in Glenwood Springs, in a case involving a major marijuana grow operation in the mid valley, has found that Colorado courts can lawfully issue a new water right specifically to grow the plant, even though it is still illegal to grow marijuana under federal law. The referee's order is the most detailed articulation to date of the state's position on the question of whether a new water right specifically to irrigate marijuana can be issued, although it applies only to Division 5. The referee also found there was no conflict between state and federal laws in creating the water right, which was a key concern in the case.

Lithium Mining Company Wants Changes in Bill - February 21, 2017
The owner of the only mining operation in the United States producing lithium carbonate wants alterations to Nevada's proposed bill on lithium exploration. The bill currently would create an exemption to state water law to allow exploration entities to sample brine from boreholes and sample and pump-test from an exploration well. Albermarle Corp., owner of the Silver Peak Mine in Esmeralda County, reported it was working with the Nevada Division of Minerals and state engineer to develop alternative language to AB52 that protects the alkaline playa, encourages lithium exploration, and "protects Albemarle's current site and operations."

Trump Rolls Back Stream Protection Rule - February 17, 2017
Last week President Trump signed a Congressional Review Act resolution eliminating the Stream Protection Rule, an Obama administration regulation aimed at reducing coal mining’s impact on water resources. The rule would have increased pre-mining data collection requirements and required monitoring and ongoing evaluation of certain perennial and intermittent streams, among other requirements. President Trump called the rule “another terrible job killing rule.”

China Considers New Restrictions on Access to Territorial Waters - February 17, 2017
China’s state news agency is reporting a proposed change to its restrictions on foreign vessels entering Chinese territorial seas. The draft law would impose fines of 300,000–500,000 yuan on foreign ships that enter without approval, and would empower Chinese maritime authorities to block ships that they felt could harm traffic safety and order. Although this prior notification is in violation of the United Nations Convention on the Law of the Sea’s innocent passage provisions, neighboring Vietnam has already adopted a similar requirement.

Special Master Recommends Denying Florida’s Request to Cap Georgia’s Water Use - February 14, 2017
Special Master Ralph Lancaster sided with Georgia in its dispute with Florida over the state’s use of water in their shared Chattahoochee-Flint River Basin. Florida argued that it is entitled to adequate streamflow to protect downstream ecosystems and the livelihood of oystermen, while Georgia maintained that needs that water to meet the residential demands of Atlanta and southeast Georgia irrigation. In his report and recommendation to the Supreme Court, the Special Master recommended finding that “Florida has not proven by clear and convincing evidence that a decree imposing a cap on Georgia’s consumptive water use . . . would provide a material benefit to Florida.”

6th Circuit Puts Hold on Challenge to Obama’s Clean Water Rule - February 5, 2017
The 6th Circuit Court of Appeals has put a hold on a challenge to the Obama’s administration’s Clean Water Rule after the Supreme Court agreed to hear the case on January 13. The National Association of Manufacturers, with the support of 31 states, petitioned the 6th Circuit, arguing that the litigation belongs in local district court; it hopes the Supreme Court will find that the court of appeals is “not the proper forum for litigation these challenges.” The Obama Administration submitted a defense of the Clean Water Rule in a 300-page brief to the 6th Circuit. It is unclear how the Supreme Court will rule.

Republicans Threaten Stream Protection Rule - February 5, 2017
Senate Republicans introduced a Congressional Review Act resolution on January 30th to “disapprove of the new coal mining water quality and monitoring standards” imposed by the Stream Protection Rule. Senator Shelley Moore Capito of West Virginia, the sponsored of the resolution, called the Stream Protection Rule “overreaching and misguided” and emphasized that the rule would devastate the coal industry. The Office of Surface Mining Reclamation and Enforcement under President Obama proposed the rule in order to “modernize 30-year-old relations.” Environmentalists, including the League of Conservation Voters, called the resolution proposed by Republicans “anti-clean water” and warned that the language in the resolution “could prevent the Department of the Interior from ever issuing updated regulations that reduce the harmful impacts of coal mining.” The House is set to vote on the resolution soon.

1,700 Residents File Suit Against EPA - February 5, 2017
Over 1,700 residents of Flint, Michigan have sued the EPA for mismanagement of the 2015 lead water crisis. The lawsuit was filed in the U.S. District Court in Michigan this week and the plaintiffs are seeking class action status. The suit alleges that the EPA “failed to warn them of the toxic lead levels in their water or take steps to make sure state and local authorities were fixing the problem” and seeks $722 million in damages.

U.S. Army Corps of Engineers seeks public comment on Proposed Rule for Use of USACE Reservoir Projects for Domestic, Municipal and Industrial Water Supply – December 16, 2016

Schuette Backs Getting Bottled Water Delivered in Flint – January 22, 2017
Michigan Attorney General Bill Schuette is siding with Flint residents in a lawsuit against the state and city, asking a federal court to uphold a contested order requiring officials to provide bottled water delivery to any home without a verified filter. Gov. Rick Snyder’s administration has fought the lawsuit and bottled water delivery order, arguing it is “overbroad” and the city lacks the financial resources to comply with it.

Clean Water Act Guru, WOTUS defender retiring – January 22, 2017
As President Trump rolls down Pennsylvania Avenue today toward the White House, the government's foremost expert and defender of the Clean Water Act is heading for the exit. Justice Department attorney Steve Samuels — who reached near-celebrity status among environmentalists for his license plate reading "CWA 404," referring to the law's wetlands provision — will retire on Jan. 31 after more than 30 years at DOJ.

Audit: Michigan Ag Department Not Following Bottled Water Regulations – January 22, 2017
The Office of the Auditor General found in its audit of the Michigan Department of Agriculture and Rural Development (MDARD) that the department needs to do more to follow its own regulations on bottled water inspection. The report found that MDARD did not always peerform timely inspections of water bottles and places with water dispensing machines.

Legislature to work on water bills this session – January 22, 2017
Assemblywoman Robin Titus of the Nevada Legislature has said this year's Legislature will be sorting through a plethora of water bills. “This (water) is one of the big issues of this session,” Titus said, adding subcommittees and possibly the full Assembly and Senate will be looking at the control of domestic wells, which the state engineer wants.

'Takings' case moves to Washington, D.C. venue – January 22, 2017
A historic case on the ramifications of a major water shutoff to Klamath Reclamation Project irrigators in 2001 will be heard at trial from local farmers or their attorneys starting Monday, Jan. 30 in Washington, D.C. In April 2001, U.S. Fish & Wildlife Services and National Marine Fisheries Service issued biological opinions declaring that water diverted from Upper Klamath Lake by Klamath Project irrigators would endanger suckers and coho salmon, citing the Endangered Species Act. The water shutoff decision prompted a protest that drew widespread attention to the Klamath Basin.

Michigan Governor Signs First Water Legislation Prompted by Flint Crisis - January 8, 2017
On Jan. 6 Gov. Rick Snyder signed legislation that requires cities in Michigan to warn their residents about dangerous lead levels within three days of a state contamination notice. Gov. Snyder noted that this bill is “an important first step,” and added that it “is not the last piece of legislation we should see on this.” Although recent testing suggest that lead levels in Flint’s water supply have decreased, residents continue to rely on filtered and bottled water.

EPA Releases Final Report on Hydraulic Fracturing - January 8, 2017
In December EPA released its final report on Hydraulic Fracturing. The report is the product of half a decade of work, and presents the EPA’s findings on impacts that fracking may have on water resources. In the report, the agency concludes that fracking may impact water resources in certain circumstances. Industry groups have criticized the report, pointing out how differences between this and draft released in 2015 represent a last-minute change before the Obama administration leaves office. Environmental advocates have praised the report’s acknowledgement of fracking risks.

SCOTUS Special Master Orders Florida, Georgia to Try to Settle Water Dispute - January 8, 2017
Special Master Ralph Lancaster ordered the states to work on reaching a settlement of their disputes over the Apalachicola-Chattahoochee-Flint river basins. The states have until Jan. 26 to submit a memorandum describing their settlement efforts, which should include considering “solutions that could alleviate both parties’ concerns, including importation of water from outside the ACF River Basin to supplement streamflow during drought periods.”

New York Environmental Groups Calling for Constitutional Right to Clean Water - January 8, 2017
Environmental Advocates of New York and EffectiveNY are supporting a proposed state constitutional amendment that would guarantee New Yorkers’ rights to clean air and water. Proponents note that although residents already have options for challenging laws and regulations, a constitutional amendment would strengthen those arguments and resist backsliding on environmental protection far into the future. Six state constitutions already include environmental rights provisions, including neighboring Pennsylvania.

Tennessee State Attorney General Demands Water Pollution Data from Tennessee Valley Authority
Tennessee has notified TVA that withholding water quality data relating to its coal-burning Gallatin Fossil Plant violates state law. The request comes as the state and environmental groups are suing TVA for failing to control groundwater pollution related to coal ash produced at the facility. Groundwater from the plant reaches the Cumberland River upstream of Nashville’s municipal water intakes.

Gardiner Sewer District Sues Yellowstone National Park Over Arsenic - December 24, 2016
The Gardiner-Park County Water and Sewer District filed a lawsuit against Yellowstone National Park and the Park Service on December 21, seeking an order that the Park Service address the high levels of arsenic which have infiltrated the county’s sewage treatment plant. The complaint alleged that the National Park Service formerly acknowledged the problem and said they would help pay for a sludge removal project, but have provided little information on when funding would be available. The complaint also stated that the arsenic levels in the district’s and the park’s drinking water are below standards and the arsenic entering the treatment plant originated in the park.

EPA Not Required to Regulate Nutrients - December 24, 2016
On December 15, Judge Zainey of the U.S. District Court for the Eastern District of Louisiana rejected a suit filed by environmentalists to force the EPA to regulate nutrient pollution in the Mississippi River. Judge Zainey found that the Clean Water Act supports the EPA’s decision to rely on the states to combat nutrient pollution in the river, rather than putting limits on the flow of nutrients. He stated in his opinion that the “Clean Water Act is by design a states-in-the-first-instance regulatory scheme,” but conceded that the EPA’s strategy of relying on states will not be sustainable indefinitely.



Obama Signs Water Infrastructure Improvements for the Nation Act - December 24, 2016
President Obama signed the Water Infrastructure Improvements for the Nation Act on December 16, a water projects bill which will help improve water infrastructure around the country. The Act includes aid to Flint, Michigan to replace lead pipes in the public water system, as well as funding for harbor dredging projects, dams, and environmental restoration in the Everglades and Great Lakes, among other areas. There is also a California drought provision, which allows for increased use of water from the San Francisco Bay watershed.

Proposed Water Law Package has Lode Residents Picking Sides – December 11, 2016
A proposed water law package for California that includes chances to expand water storage at New Melones Reservoir and target non-native fish in the Stanislaus River watershed is working its way through Congress this week. Known as the Water Infrastructure Improvements for the Nation Act, and as the Water Resources Development Act, they are two separate pieces of legislation combined into one measure. Like any legislation targeting water in the Golden State, it is controversial, and some people are picking sides.

For Montana's Water Rights, a Radical and Likely Doomed Idea - December 11, 2016
Joe Gutkoski runs a small nonprofit called Montana River Action, whose main goal is to unwind Montana water law, a political non-starter for many in the Montana Legislature. For the eighth time, he is looking for someone to bring a bill to the Montana Legislature that would require 25 percent of average annual streamflow remain in roughly 4,700 miles of streams the state has deemed “dewatering concern areas.” The rest of the water could be diverted. In a state where agriculture is still king, climate change is expected to bring more frequent drought conditions. Current water rights exceed available water in many river basins, creating the opportunity for water users to significantly or totally drain streams. Gutkoski thinks it's wrong to assume all irrigators care about larger river concerns, and he wants a legal mandate to protect the state's fisheries.

West Slope Water Users Win in Court - December 11, 2016
Western Slope prevailed in the Colorado Supreme Court in a major water case involving transmountain diversions to Colorado's Front Range. In a 5-2 decision, the high court ruled that a water court in Pueblo erred in concluding that storage of transmountain water rights on the Eastern Slope was lawful despite the lack of a water court decree allowing for the water’s storage prior to its use for its decreed purpose. The court also held that because the storage of the water rights was unlawful, the water court erred when quantifying historic use by including the volumes of exported water paid as rental fees for storage on the Eastern Slope. From the Western Slope perspective, a key aspect of the ruling is that it concluded that the right to store transmountain diversion water prior to use in the basin where it’s imported isn’t automatic, but must be reflected or implied in the water rights decree. To some degree, transmountain diversion water is treated differently from other water in Colorado, as importers of the water can reuse it over and over.

California Case Could Set National Precedent on Indian Water Rights - December 11, 2016
The Agua Caliente Band of Cahuilla Indians, which owns to casinos in the popular Palm Springs desert region, has been buying water for decades from two government water agencies that manage local groundwater. Now the tribe wants to be able to tap into the aquifer itself and help manage it. At a hearing in October before the 9th Circuit, the tribe asserted it has a "federally reserved" right to directly access the region's groundwater, even though it has never done so. The tribe claims the two water agencies have damaged the aquifer by depleting it for unsustainable development and by bringing in saliter water from the Colorado River to refill it. The water agencies, in turn, warn that if given a role in managing the groundwater, the tribe could use the water for any purpose it wants. The case before the federal appeals court could set a national precedent for tribal access to groundwater. No federal curt before has ever ruled on the issue.

Maroon Creek Club Water Rights Application Opposed by City of Aspen and CWCB - December 11, 2016
The Colorado Water Conservation Board and the city of Aspen are objecting to an effort by the Maroon Creek Club to broaden a 1989 water right so it can refill four ponds on its private golf course as it sees fit. Both the state and the city are concerned that in seeking such a determination, the club will actually expand its water right, and do so despite an earlier settlement agreement that sets a cap on the amount of water that the ponds can store in a year. A status conference in the case is set for December 22.

Inspections Show Navajo Utility had Years of Violations - December 11, 2016
A new agreement between federal and tribal regulators and the Navajo Tribal Utility Authority shows six sewage treatment plants across the Navajo Nation in Arizona have been violating Clean Water Act regulations for years. Under separate agreements with the U.S. EPA and Navajo Nation EPA, the tribally owned utility agreed to spend $6 million to get its treatment plants back into compliance. The offenses were the latest among a number of violations that NTUA Deputy General Manager Rex Kontz attributed in part to a reliance on immediate, Band aid-type fixes that failed to address the bigger problem. The root cause of the most recent violations is infrastructure age, Kontz said.

After Flint Failure, EPA Refocuses Federal Drinking Water Role - December 11, 2016
The lead contamination scandal that unraveled in Flint, MI the last two years brought drinking water safety to the forefront of U.S. public policy. The results of the U.S. Environmental Protection Agency review of the nation's drinking water strategy that began in May was published on November 30th. The result is a thirty-three page "action plan" divided into six priority areas and dozens of recommended actions.

Sixth Circuit Affirms Flint Water Suit’s Remand to State Court – November 27, 2016
A 2–1 panel of the Sixth Circuit upheld a district court’s decision to remand a class action brought by residents of Flint, Michigan to state court. Because two-thirds of the proposed class members are Michigan citizens, the injuries are contained to those within the reach of Flint’s water system, and there is a local defendant, the panel decided that it fit the local controversy exception in the Class Action Fairness Act. The case “exemplifies the quintessential local controversy,” the panel wrote, adding that to argue otherwise “defies common sense.”

Slovenia Adds Water as Constitutional Right – November 27, 2016
Slovenia amended its constitution to make water a fundamental right. With the new amendment the constitution now unambiguously establishes that “[e]veryone has the right to drinkable water.” The decision makes it the first E.U. nation to make water a universal right, and is aimed in part at increasing access to potable water for the 12,000 Roma people living in the country.

Pawnee Nation of Oklahoma Sues Federal Agencies Over Oil and Gas Approvals – November 27, 2016
The Pawnee Nation of Oklahoma filed suit to protect lands and water from what they argue is illegal gas drilling. They allege that BLM and BIA issued the oil and gas approvals without consulting with the Nation or complying with tribal natural resource protection laws, including a 2015 Pawnee moratorium on new oil and gas approvals.

Pennsylvania Senators Intervene in Fracking Suit – November 27, 2016
Three state senators are attempting to intervene in a lawsuit aimed at ending a fracking moratorium on the grounds that it takes the place of existing regulations. They argue that the Delaware River Basin Commission has usurped the role of the commonwealth’s General Assembly by effectively replacing the previously-enacted set of regulations on gas-drilling. The case is before Judge Robert Mariani, who has yet to rule on their motion. Read more at:

Michigan Lists Lake Erie Watershed As Impaired – November 27, 2016
On Nov. 10 Michigan listed its portion of the Lake Erie watershed as impaired, citing eutrophication and algae blooms as the primary causes of the impairment. Proponents of the designation hope that it will encourage neighboring states to follow suit, but Ohio Governor John Kasich has been hesitant to do so. Ohio listed its Lake Erie shoreline and draining water intakes as impaired in 2015, but critics argue that a state-wide designation is necessary.

Plea to Include Watershed Projects in the WRDA - November 7, 2016
On November 3, 58 members of the Senate and House asked the conference committee in charge of the Water Resources Development Act to include watershed restoration projects in the legislation. Specifically, they asked that the WRDA include five bills authorizing restoration projects for Lake Tahoe, the Great Lakes, the Delaware River Basin, Long Island Sound, and the Columbia River Basin. Negotiators are currently in the process of reconciling the House and Senate versions of the WRDA.

Army Corps Issues Regulatory Guidance on Jurisdictional Determinations - November 7, 2016
The Army Corps issued a regulatory guidance letter (“RGL”) on November 1 to help regulators decide “whether wetlands and streams on property being developed fall under the jurisdiction of the federal government,” and thus are subject to the Clean Water Act or the Rivers and Harbors Act. The letter is aimed at providing clarity to district regulators on when they must complete a preliminary jurisdictional determination, approved determination, or no jurisdictional determination. Although some experts believe the RGL merely “repackages many of the procedures already in place at the corp,” others argue it gives district engineers more discretion to “slow-walk” jurisdictional determinations.

Pivotal Battle Looms in Long-Running Southeast Water War - November 1, 2016
A bankruptcy court in Portland, Maine is hosting Florida v. Georgia, the hot-button Supreme Court case addressing water flow and withdrawals in the Apalachicola-Chattahoochee-Flint River basin. Attorneys for Florida and Georgia plan to draw on testimony from more than three dozen experts on whether the states' use of water in the basin is equitable. The Supreme Court appointed Pierce Atwood LLP attorney Ralph Lancaster as special master in the case. He'll make recommendations to the high court based on the trial and evidence; the justices will decide whether to accept the outcome. Even if the case doesn't resolve everything between Florida and Georgia, the case could be significant for the rest of the country if the Supreme Court ends up divvying the water between the two states through what's known as "equitable apportionment." In the process of apportionment, how the Supreme Court handles the country's major environmental statutes that have been passed into law since the 1930s could have huge implications for states across the country. In general, more and more interstate water disputes are heading to the Supreme Court. The other ongoing water fights at the high court are between Texas and Mexico, Montana and Wyoming, and Mississippi and Tennessee.

SC Oil Spill Prompts Legal Threat - November 1, 2016
Savannah Riverkeeper and Upstate Forever, two environmental groups working in South Carolina, have filed a notice that they will sue under the Clean Water Act (“CWA”) after 60 days if Kinder Morgan Energy Partners Inc. and a subsidiary don't halt ongoing petroleum pollution in waterways near a spill site. The legal notice, provided to the energy company and government regulators, is part of a federal process that must be followed before a lawsuit can be filed. Such notices are filed by citizen groups who claim the government is not enforcing the CWA. The notice comes at a time of criticism by environmental groups and property rights advocates over Kinder Morgan expansion plans in the Savannah River basin in western South Carolina.

California River Watch Sues Composting Facilities for Clean Water Act Violations - November 1, 2016
California River Watch filed a complaint on Oct. 26, in the U.S. District Court for the Northern District of California against Zanker Road Resource Management Ltd., and Z-Best Composting Facility, citing alleged violation of the Clean Water Act. According to the complaint, the plaintiff alleges that California River Watch is informed and believes that large quantities of composted materials at the defendants' composting facilities are exposed to stormwater and eroded by wind that can otherwise contaminate the surrounding watershed and threaten to cause pollution, contamination, or nuisance.

Washington County Temporarily Halts Work on New Developments that Depend on Rural Wells - November 1, 2016
Whatcom County has temporarily stopped accepting new applications for developments that depend on water from what are known as "exempt wells" in light of a recent state Supreme Court ruling against the County. The court said the County must make sure there was enough available water before issuing permits for developments in rural areas. The decision overturned a February 2015 state Court of Appeals ruling, which had favored the county by saying, in effect, that the county didn't need stricter rules to regulate water wells on rural properties.

Responding to Citizen Petition, EPA Reviews Wisconsin NPDES Delegation
In response to a petition filed last year, EPA officials are reviewing documents related to forty-seven NPDES permits issued by the Wisconsin Department of Natural Resources. According to the petition, the Wisconsin DNR issued permits that contravene CWA duties, restrict the rights of state citizens, and violate public participation requirements. EPA has never withdrawn state delegation as a result of a citizen petition, and a state spokesperson commented that the EPA review is standard procedure, the Lacrosse Tribune reported.

New Legislation Recognizes Meadows and Forests as “Integral Components of California’s Water Infrastructure”
On September 27th Governor Brown signed AB-2480 into law, recognizing the role that source watersheds play in maintaining the state’s water supply. The short bill recognizes that as “climate change advances, source watersheds . . . are of particular importance to maintaining the reliability, quantity, timing, and quality of California’s environmental, drinking, and agricultural water supply.” The new law allows use of infrastructure bonds for watershed restoration and protection, and lists financing-eligible repair and maintenance activities that include vegetation management, meadow restoration, road removal, and more.

Issues of First Impression in Mississippi v. Tennessee
When the Supreme Court hears arguments in Mississippi v. Tennessee, the justices will have to decide for the first time what law applies to interstate groundwater resources like the disputed Sparta-Memphis Sand Aquifer. Mississippi alleges that the city of Memphis is extracting so much from the aquifer that a groundwater depression has formed beneath the city. That depression, the state argues, is drawing in so much water from Mississippi that the state is owed $615 million in compensation. The Solicitor General has argued in support of Tennessee’s contention that the aquifer should be treated like an interstate river, and be subject to equitable apportionment.

Supreme Court Upholds Right to Challenge Army Corps CWA Jurisdiction Determinations of WOTUS in Hawkes - May 31, 2016
The Supreme Court ruled unanimously in U.S. Army Corps of Engineers v. Hawkes that an Army Corps “jurisdictional determination” is a “final agency action” subject to judicial review because of the significant financial and even criminal consequences for landowners if they disregard such a determination. The ruling upheld the Eighth Circuit's ruling in the matter and will surely play a part in the ongoing judicial interpretations of EPA's Clean Water Rule on defining Waters of the U.S.

North Carolina Supreme Court Considers Asheville Water System Case - May 24, 2016
Last week, the North Carolina Supreme Court heard oral argument on a challenge to a North Carolina law that transfers control of the Asheville water system from city officials to a board comprised of officials from a two-county area, of which Asheville representatives would be a minority. More than 120,000 people utilize the Asheville water system, both inside and outside the city limits. Although most of the Court’s questions concerned whether the law in question violates a state constitutional provision prohibiting local laws relating to health and sanitation, the Court also questioned whether the state assembly has the authority to transfer an asset worth millions of dollars from one governmental entity to another without compensation. A decision is not expected for several months.

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Committee Chair

Co-Chairs:

Clark, Andrea
Negro, Sorell

Committee Roster  


Committee Calls

Bi-monthly committee calls (for discussion regarding what we are working on as well as new ideas for the committee) will take place on the third Thursday of each month.
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Sites of Interest


Water Resources - Archive

Modified by Peter Clark on July 11, 2017

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