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Water Resources


Recent Water Law Cases & Hot News

Recent Water Law Cases

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Updated on April 30, 2015

United States v. Orr Ditch Co.
No. 31-1512 (D. Nev. filed Sept. 30, 2014)
By David A. Bell

In the latest and possibly final round of litigation over the 1944 Orr Ditch Decree and water appropriation in the Truckee River Basin of California and Nevada, the United States District Court for the District of Nevada granted all rights to remaining water in the basin to the Pyramid Lake Paiute Tribe and declared the basin closed to new appropriations. The moving parties in the case, including the “four sovereigns,” the United States of America, the State of Nevada, the State of California, and the Pyramid Lake Paiute Tribe (Pyramid Tribe)(all collectively “moving parties”), asked the court to amend the 1944 Final Orr Ditch Decree. Read more.

The Boeing Company v. Movassaghi
768 F.3d 832 (9th Cir. Sept. 19, 2014)
By Lindsay Thane

The Ninth Circuit Court of Appeals (“Court”) recently determined that a California law impermissibly regulates and discriminates against the federal government and its contractor, violating the Supremacy Clause and intergovernmental immunity. Boeing Co. v. Movassaghi 768 F.3d 832 (9th Cir. Sept. 19, 2014). The Court affirmed a district court decision that the State of California’s stricter standards to cleanup radioactive pollutants at the Santa Susana Field Laboratory (“SSFL”) were unconstitutional. Id. at 838. Read more.

Craig v. U.S. Army Corps of Engineers
2014 WL 5488751 (D.S.C. Oct. 29, 2014)
By Page T. Mizell

A South Carolina landowner properly obtained a “Farm Pond Exemption” under § 404(f)(1)(C) of the Clean Water Act (“CWA”) to construct a dam and pond on his property, the U.S. District Court for the District of South Carolina (the “Court”) ruled. Craig v. U.S. Army Corps of Eng’rs, 2014 WL 5488751 (D.S.C. Oct. 29, 2014). On June 27, 2013, Plaintiffs William and Ragin Craig (collectively, the “Craigs”) filed suit against the federal government challenging the exemption granted by the U.S. Army Corps of Engineers (“Corps”) and U.S. Environmental Protection Agency (“EPA”) to their neighbor, Robert Lesslie. Id. at *1. Mr. Lesslie sought to build a dam on the eastern portion of his property in order to create a pond for recreational purposes, but changed course after determining the costs to comply with the CWA and finding that he could create a pond using the agricultural exemption. Id. at *1-2. The Court ultimately granted summary judgment for the Defendants’, which include the agencies and Lesslie, and denied the Craigs’ motion for summary judgment. Id. at *10. Read more.

In re Snake River Basin Adjudication
2014 WL 3810591
By Catherine Caycedo

In January 2014, the Supreme Court of Idaho reviewed a decision by the Snake River Basin Adjudication (SRBA) Court addressing the question of storage water refill. In re SRBA, 2014 WL 3810591 (Idaho 2014). The Supreme Court held the SRBA court abused its discretion in its designation of the issue, but that it correctly declined to address the issue of whether flood control releases count toward the “fill” of a water right as a basin-wide issue. Id. at 9. Read more.

Ouachita Watch League v. Henry
2014 WL 4986531 (E.D. Arkansas, Oct. 6, 2014)
by Kelsea Wagner

The U.S. District Court for the Eastern District of Arkansas (the “Court”) recently allowed challenges by Plaintiffs Ouachita Watch League and the Ozark Society (“OWL” and “OS,” respectively) to proceed against the United States Forest Service (the “Forest Service”) and the Bureau of Land Management (“BLM”) concerning the management of natural gas resources on national forest lands. Ouachita Watch League v. Henry, Nos. 4:11-cv-00425KGB, 4:11-cv-00782KGB, 2014 WL 4986531 (E.D. Arkansas, Oct. 6, 2014). The decision addressed issues in consolidated cases brought by OS and OWL under the Administrative Procedures Act (“APA”), National Forest Management Act (“NFMA”), Wild and Scenic Rivers Act (“WSRA”), and Energy Policy Act of 2005. Plaintiffs’ APA claims were based on alleged violations of the National Environmental Policy Act (“NEPA”), which does not provide for a right of action. Id at *1. The Court denied motions to dismiss the APA, NEPA, and NFMA claims and granted motions to dismiss the WSRA and Energy Policy Act claims. Id. Read more.

Puget Soundkeeper Alliance v. Cruise Terminals of America, LLC
No. C14-0476, 2014 U.S. Dist. LEXIS 130700 (W.D. Wash. Sept. 16, 2014)
By Lawrence Scott Shults

In this ongoing action, Puget Soundkeeper Alliance (Soundkeeper) claims that Cruise Terminals of America (CTA) is violating the Clean Water Act (CWA) by discharging polluted industrial stormwater without a permit. Puget Soundkeeper Alliance v. Cruise Terminals of America, LLC, No. C14-0476, 2014 U.S. Dist. LEXIS 130700, at *1 (W.D. Wash. Sept. 16, 2014). CTA and several other entities operate at the pier and lease space from the Port of Seattle (“Port”). Id. at *2. CTA’s lease provides non-exclusive use of Terminal Building at Pier 66 for cruise ship operation and building maintenance. Id. at *3. Soundkeeper’s complaint asked the court to compel CTA’s compliance with the CWA’s National Pollutant Discharge Elimination System (NPDES) permitting requirement and to enjoin CTA’s operations until obtaining the necessary permit. Id. at *2-3. Read more.

Mingo Logan Coal Company, Inc. v. United States Environmental Protection Agency
2014 WL4828883 (D.D.C. Sept. 30, 2014)
by Shannon Martin Dilley

The U.S. District Court for the District of Columbia recently examined the Environmental Protection Agency’s (EPA) veto authority under section 404(c) of the Clean Water Act (CWA), 33 U.S.C. §1344(c) (2012), and the Administrative Procedure Act (APA), 5 U.S.C. §702 et seq. (2012). The court held the EPA’s decision to invoke its veto authority and revoke the 404 permit was reasonably supported by the record, based on considerations within the agency purview, and entitled to deference. Mingo Logan Coal Co., Inc. v. U.S. EPA, 2014 WL4828883 (D.D.C. Sept. 30, 2014). Read more.

Sahu v. Union Carbide Corp.
2014 WL3765556 (S.D. N.Y. 2014)
by Kieran McCarthy

This case, Sahuv. Union Carbide Corp., 2014 WL3765556 (SDNY July 31, 2014) (SahuII), arises from the events that led to the release of hazardous chemicals from a chemical manufacturing plant in Bhophal, India. The plant was operated by Union Carbide India Limited (UCIL) from 1969 until 1984, when a disastrous gas leak forced the Indian Government to close the facility. This case, brought before District Judge John F. Keenan in United States District Court for the Southern District of New York, follows Sahuv. Union Carbide Corp., 528F. App’x96 (2d Cir 2013) (SahuI), where after appeal, summary judgment was granted for defendant Union Carbide Corporation (UCC) regarding personal injury claims. The action in SahuII was stayed in 2007 pending the litigation in SahuI. Following that decision, the plaintiffs, in November 2013 amended their complaint adding the state of Madhya Pradesh as a defendant. Read more.

White Oak Realty, LLC. v. United States Army Corp. of Engineers
by Zachary Smith

This case involves a civil action brought for declaratory and injunctive relief from a mitigation requirement imposed by the Defendants, United States Corps of Engineers (Corps), on a tract of land in Southeast Louisiana jointly owned by Plaintiffs, White Oak Realty, LLC and Citrus Realty, LLC. White Oak Realty, LLC v. United States Army Corp of Eng'rs, 2014 U.S. Dist. LEXIS123227 (E.D. La. Sept. 2, 2014).Read more.

Millview County Water District v. State Water Resources Control Board
229 Cal. App. 4th 879 (Cal. App. 1st Dist. Sep. 11, 2014)
by Wes Knoll

The California Court of Appeals for the First Appellate District (Court) recently reversed the California Water Resources Control Board (Board) in a pre-1914 appropriative right for feature a ction. Millview County Water Dist. v. State Water Res. Control Bd., 229 Cal. App. 4th 879,899 (Cal. App. 1st Dist. 2014). On appeal, the Court held that the Board applied the in correct legal standard when it forfeited a water right owned by the Plaintiff, Millview County Water District. The Court determined for feature of an appropriative right requires an assertion of a conflicting claim—a “clash of rights”—and if no conflicting claim is asserted during non use of a water right, the original right holder may resume the use of their full amount. Id. At 903. Read more.

Southern Appalachian Mountain Stewards v. Red River Coal Company, Inc.
No. 2:14-CV-00024, 2014 WL4462427 (W.D. Va.Sep.10, 2014)
by Brett A. Miller

The United States District Court for the Western District of Virginia recently denied the Red River Coal Company’s (defendant) motion to dismiss a citizen's suit that alleged the mining company had exceeded its allowable discharges and violated Section 505(a) of the Clean Water Act. 33 U.S.C. §1365(a); S. Appalachian Mountain Stewards v. Red River Coal Co., No.2:14-CV-00024, 2014 WL4462427, at 1 (W.D. Va. Sep. 10, 2014). Judge James P. Jones, presiding in the Big Stone Gap Division, did not grant the motion to dismiss because more information was necessary to determine whether the “(n)(3) condition” within a National Pollutant Discharge Elimination System (NPDES) permits must comply with the Total Maximum Daily Load (TMDL) requirements. Id. At 2. Read more.

San Luis & Delta-Mendota Water Authority v. Jewell
2014 WL4249183 (E.D. Cal. Aug. 27, 2014)
by Andrew Mulkey

In a dispute related to the allocation of water within the Klamath Basin, the U.S. District Court for the Eastern District California denied plaintiffs’, San Luis & Delta-Mendota Water Authority and Westlands Water District, motion to enjoin the release of water from the Lewiston Dam on the Trinity River. San Luis & Delta-Mendota Water Authority v. Jewell, No. 1:13-cv-01232, 2014 WL4249183, at *1–2 (E.D. Cal. Aug. 27, 2014). To reduce the likelihood of a disease outbreak among salmon populations, the U.S. Bureau of Reclamation (Reclamation) planned “Flow Augmentation” releases (FARs) from the dam in August 2014. Id. Plaintiffs claimed that the 2014 FARs impacted their ability to receive their own allocation of water. Although the Court indicated that the plaintiffs would likely succeed on the merits of one of their underlying claims, the Court declined to enjoin the FARs because the balance of the harms did not favor an injunction. Id. At *11.Read more.

Houston Unlimited, Inc., v. Mel Acres Ranch
57 Tex. Sup. Ct. J. 1223 (Tex. 2014)
By Stephanie Schwarz

In Houston Unlimited, Inc., v. Mel Acres Ranch, 57 Tex. Sup. Ct. J. 1223 (Tex. 2014), the Texas Supreme Court declined to award stigma damages to the plaintiff, the owner of a property that had been contaminated by the actions of its neighbor, Houston Unlimited. The Court concluded that the evidence provided by Mel Acres’ expert witness, a licensed real estate appraiser, was not legally sufficient. Id. The Court reversed the court of appeal’s judgment, which had affirmed a jury verdict awarding Mel Acres with almost $350,000 in lost market value based on “stigma damage” from past contamination. Id. At 5. Read more.


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.

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Message From The Co-Chairs



As always, many new things are happening in water resources and the SEER Water Resources Committee.



Sorell Negro and her fabulous team continue to provide Committee members with case summaries and Hot News. These summaries involve water law cases all over the country.  If you would like to contribute to either, please contact Sorell directly at SNegro@rc.com.
Under the direction of Robin Craig, the Committee is preparing for the 33rd Annual SEER Water Law Conference, which will be held June 3-5, 2015, at the Four Seasons in Denver, Colorado.  This is the same SEER Water Law Conference that used to be held in February in San Diego, and was held in Las Vegas for 2013 and 2014.  The conference is only possible with the help of the remarkable people on our planning committee.  Thank you all!



Jeff Kray, Executive Editor, of the Committee’s newsletter is soliciting articles for the 3-4 newsletters the Committee anticipates publishing between now and Summer 2015.  If you have 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 Programs suggestions and contributions to the Committee Newsletter. Contact us at djohnson@cap-az.com, 623-869-2375, or jschutz@mwjlaw.com, 801-359-3663, with any ideas you have about how the Water Resources Committee or SEER can better serve you or your firm’s professional development needs, or if you want to be more involved, but aren't sure how best to contribute. We always have a place for you.

David Johnson and Jon Schutz
2014-2015 Co-Chairs, Water Resources Committee
ABA Section of Environment, Energy, and Resources

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