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Water Resources
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Water Resources


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


Recent Water Law Cases & Hot News




Recent Water Law Cases

You can visit the archived cases here.

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Updated on November 11, 2014

San Luis & Delta-Mendota Water Authority v. Jewell 2014 WL 4249183 (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 WL 4249183, 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.

Magers v. Chesapeake Appalachia, LLC 2014 WL 4352084 (N.D.W. Va. Sept. 2, 2014)
By Jennifer Polk

Plaintiffs Jeremiah and Andrea Magers (collectively, the “Magers”) filed an action against Chesapeake Appalachia, LLC in which the Magers alleged that the defendant’s petroleum drilling activities had allowed methane gas and other contaminants to leak into the plaintiff’s water well. Magers v. Chesapeake Appalachia, LLC, No. 5:12cv49, 2014 WL 4352084 (N.D.W. Va. Sept. 2, 2014). During discovery, the Magers broadened their theory of liability and amended their complaint to include Columbia Gas Transmission, LLC (“Columbia”) and CNX Gas Company ("CNX"). CNX successfully left the case on a motion to dismiss and Columbia sought summary judgment, claiming that the plaintiffs had not met their burden to proceed against Columbia. Id. The Court granted Columbia’s motion; the case will move forward against the original defendant only. Id. at *9. Read more.

Nat’l Wildlife Fed’n v. Dep’t of Envtl. Quality, No. 308366, 2014 Mich. App. LEXIS 1482 (Aug. 12, 2014) (per curiam)
By Jessica Foster

On August 12, 2014, the Michigan Court of Appeals affirmed a state circuit court’s decision to uphold a groundwater discharge permit granted for mining purposes to the Kennecott Eagle Minerals Company (Kennecott) over protests that mining would cause serious environmental damage to the headwaters of the Salmon Trout River in Marquette County. Nat’l Wildlife Fed’n v. Dep’t of Envtl. Quality, No. 308366, 2014 Mich. App. LEXIS 1482 at *1 (Aug. 12, 2014) (per curiam). Read more.

In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 MDL 2179 Section J 2014 WL 4375933, 44 ELR 20200 (E.D. La. Sept. 4, 2014)
By Brook Bell

On September 4, 2014, the United States District Court for the Eastern District of Louisiana (the “Court”) issued findings of fact and conclusions of law (the “Findings”) relating to the April 20, 2010 “Deepwater Horizon” incident, in which a blowout, explosions, and fire occurred aboard an offshore oil rig, killing eleven men and causing millions of gallons of oil to discharge into the Gulf of Mexico from the Macondo well. Read more.

El Dorado Chem. Co. v. EPA 763 F.3d 950 (8th Cir. Aug. 15, 2014)
By Brian Annes

The Clean Water Act (“CWA”) authorizes states to develop water quality standards within state borders. El Dorado Chem. Co. v. EPA, 763 F.3d 950, 958 (8th Cir. Aug. 15, 2014). However, the U.S. Environmental Protection Agency (“EPA”) must approve all standards and revisions proposed by the states. Id. at 953. In August 2014, the United States Court of Appeals for the Eighth Circuit (the “Court”) held that EPA may consider downstream effects when reviewing water quality standards proposed by a state agency. Id. at 958. Read more.

Environmental Law Foundation, et al. v. State Water Resources Control Board, et al. Superior Court of California, County of Sacramento Case No. 34-2010-80000583 (July 14, 2014)
By Margaret Alden Moody

In Environmental Law Foundation, et al. v. State Water Resources Control Board, et al. (Case No. 34-2010-80000583, July 14, 2014), the Superior Court of California, County of Sacramento, addressed an issue of first impression: Whether “the public trust doctrine appl[ies] to groundwater hydrologically connected to a navigable river.” Id. at *2. Read more.

Residents for Sane Trash Solutions, Inc. v. U.S. Army Corps of Engineers 2014 U.S. Dist. LEXIS 94356 (S.D.N.Y. July 10, 2014)
By Natalie M. Laczek, Esq.

Plaintiffs, Residents for Sane Trash Solutions, Inc. (Sane Trash) and Micah Z. Kellner, have previously filed five complaints contesting all state and local actions related to the construction of a Marine Transfer Station (MTS), located at 91st Street in Manhattan, New York. The planned 70,000 square foot MTS will receive thousands of tons of New York City solid municipal waste per day, which will then be sent via barge to remote locations. All of the state and local challenges were rejected. Read more.

Asarco, LLC v. Union Pacific Railroad Co. 2014 WL 4211113 (9th Cir. Aug. 27, 2014)
By Piper Doeppe

In 2012, the mining company Asarco, LLC brought a contribution action against Union Pacific Railroad under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) stemming from massive environmental damage caused by mining operations in Northern Idaho. Asarco, LLC v. Union Pac. R. Co., 2014 WL 4211113 (9th Cir. Aug. 27, 2014). Before the suit, Asarco reached a settlement with the United States for $482 million, which covered Asarco’s CERCLA liabilities in the Coeur d’Alene watershed of northern Idaho. In this suit, Asarco claimed that Union Pacific was in turn liable for a portion of that settlement under the contribution provisions of CERCLA. Id. at *1. Read more.

Aransas Project v. Shaw 756 F.3d 801 (5th Cir. 2014)
By Denny Vaggalis

On June 30, 2014, the U.S. Court of Appeals for the Fifth Circuit held that a district court misapplied the proximate cause analysis when it ruled that the Texas Commission on Environmental Quality’s (“TCEQ”) issuance of water withdrawal permits caused a take of endangered whooping cranes under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. The Plaintiff, the Aransas Project (“TAP”), alleged that TCEQ was responsible for the deaths of several whooping cranes, an endangered species, through its mismanagement of the state’s water resources. Aransas Project v. Shaw, 756 F.3d 801 (5th Cir. 2014). Read more.

Navajo Nation v. United States Department of the Interior CV-03-00507, 2014 WL 3610948 (D. Ariz. July 22, 2014)
by John Robinson Jr.

The U.S. District Court for the District of Arizona (the “Court”) recently rejected several claims brought by the Navajo Nation (the “Nation”) against the U.S. Department of the Interior (“DOI”) concerning DOI’s management of the Lower Basin of the Colorado River. Navajo Nation v. United States Department of the Interior, CV-03-00507, 2014 WL 3610948 (D. Ariz. July 22, 2014). The Court rejected all of these claims without reaching the merits based on lack of standing and sovereign immunity. Read more.

Suffolk Cnty. Water Auth. v. Dow Chem. Co. 2014 WL 3608520 (N.Y. App. Div. July 23, 2014)
by Kathleen A. Miller

Suffolk County Water Authority (“SCWA”) brought suit against Dow Chemical Company (“Dow”) and other manufacturers, distributors, and retailers of perchloroethylene (“PCE”), a chemical used in dry cleaning, and those who manufactured equipment intended to be used with PCE for dry cleaning purposes. Read more.

Environmental Law Foundation, et al. v. State Water Resources Control Bd., et al., Case No. 34-2010-80000583 (Cal. Super. Ct. July 14, 2014)
by Sophia Tornatore

On July 14, 2014, the Sacramento Superior Court held that the public trust doctrine protects navigable waterways from harm caused by groundwater extraction. Envtl. Law Found., et al. v. State Water Res. Control Bd., et al., Case No. 34-2010-80000583, (Cal. Super. Ct. July 14, 2014). The Court further ruled that the Respondent, County of Siskiyou (County), must consider the public trust when it issues groundwater well drilling permits. Id. at 2. Read more.

Light v. State Water Resources Control Board 226 Cal. App. 4th 1463; 173 Cal. Rptr. 3d 200
by Curtis Filaroski

The California Court of Appeal for the First Appellate District (the “Court”) recently reviewed the Mendocino County Superior Court’s decision on Regulation 862, a State Water Resources Control Board (“Board”) regulation addressing water diversions made to prevent frost damage in the Russian River watershed. Light v. State Water Resources Control Bd., 226 Cal. App. 4th 1463 (Cal. App. 1st Dist. 2014). Plaintiffs, vineyard owners, a group of fruit growers, and other related entities, challenged Regulation 862. Id. at 1477. After the trial court issued an order invalidating the regulation on several grounds, the Court reversed the trial court’s decision. Id. at 1498. Read more.

Friends of Merrymeeting Bay v. Hydro Kennebec, LLC (1st Cir. 2014)
by Ted Stotzer

Friends of Merrymeeting Bay and Environment Maine (plaintiffs) brought two citizen suits against Hydro Kennebec, LLC, Brookfield Power U.S. Asset Management, LLC, Merimil LP, FPL Energy Maine Hydro, LLC, and Brookfield Renewable Services Maine, LLC (defendants) under §1540(g)(1) of the Endangered Species Act (ESA) and §1365(a)(1), (2) of the Clean Water Act (CWA). Friends of Merrymeeting Bay v. Hydro Kennebec, LLC, Nos. 13-1220, 13-1750, 2014 WL 3400520, at *1 (1st Cir. July 14, 2014). Plaintiffs alleged the continued passage of endangered fish through dam turbines operated by defendants, rather than through the diversionary facilities, resulted in fish injury and death, which is an illegal “taking” under §1538 of the ESA. Read more.

Southern Appalachian Mountain Stewards v. A & G Coal Corp. 2014 WL 3377687, No. 13-2050 (4th Cir. July 11, 2014)
by Shannon Martin Dilley

The United States Court of Appeals for the Fourth Circuit recently ruled that A&G Coal Corporation (“A&G”) (“appellant”) could not assert the permit shield defense for discharges of selenium because it failed to satisfy the Piney Run test. In affirming the district court’s ruling, the Fourth Circuit held that A&G’s silence on the existence of selenium was a failure to comply with disclosure requirements and the express terms of the permit application. It also held that general disclosures were not sufficient, and selenium discharges were not within the reasonable contemplation of the agency. Southern Appalachian Mountain Stewards v. A & G Coal Corp., 2014 WL 3377687, No. 13-2050 (4th Cir. July 11, 2014). Read more.

AquAlliance v. U.S. Bureau of Reclamation
by Natalie M. Laczek, Esq.

The U.S. District Court for the Eastern District of California recently refused to enjoin a federal water transfer project to allow sales of water from the Sacramento–San Joaquin Delta (“Delta”) to the San Luis & Delta–Mendota Water Authority (“SLDMWA”). AquAlliance v. U.S. Bureau of Reclamation, 2014 WL 3401390, at *1, *22 (E.D. Cal. July 11, 2014). Read more.

San Luis and Delta-Water Authority v. Jewell , 747 F.3d 581
by Michael Tone

The U.S. Court of Appeals for the Ninth Circuit recently reversed the Eastern District of California and ruled that the Fish and Wildlife Service’s (“FWS”) Biological Opinion (“BiOp”) protecting the Delta Smelt (“Smelt”) was not arbitrary or capricious. San Luis and Delta-Water Authority v. Jewell, 747 F.3d 581, 591 (9th Cir. 2014). Read more.

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Hot News

If you have a hot news item that you would like posted, please send it to Kirk Tracy at ktracy@paladinlaw.com.

You can visit the archived news articles here. Updated September 9.

President Obama Appoints Commissioner of Bear River Commission – October 29, 2014

The Bear River Commission, created in 1958 pursuant to the Bear River Compact among the states of Idaho, Utah and Wyoming, has a mission to remove the causes of present and future controversy over the distribution and use of the waters of the Bear River, to provide for efficient use of water for multiple purposes, to permit additional development of the water resources of Bear River, to promote interstate comity, and to accomplish an equitable apportionment of the waters of the Bear River among the compacting States. The Compact has provided a framework to promote the water interests of each of the three states while preserving their common interests that brought and keep them together. Earlier this month, President Obama appointed Holland & Hart Partner Jody Williams as Commissioner, to oversee the nine gubernatorial appointed Commissioners.

US OSG files amicus in Florida v. Georgia, urging Supreme Court to wait until the Corps revises its Master Manual - October 14, 2014

In September, the US Office of the Solicitor General filed an amicus brief urging the Supreme Court to deny Florida leave to file a complaint in Florida v. Georgia, US, No. 220142 ORG, until the Army Corps of Engineers completes a revised "Master Water Control Manual" for Apalachicola-Chattahoochee-Flint (ACF) River Basin; or, alternatively, to grant Florida leave to file, but stay or provide for tailoring of any further proceedings until the revised manual is issued. The parties have since filed supplemental briefs with the Court.

Pacific Legal Foundation seeks cert on 9th Circuit decision upholding the delta smelt biological opinion - October 14, 2014

On September 30, the Pacific Legal Foundation filed a cert petition asking SCOTUS to review and reverse the 9th Circuit's decision upholding a 2008 biological opinion for the endangered delta smelt, under the Endangered Species Act. The regulation has resulted in major water cutbacks in Central and Southern California during an already severe drought. Read more here.

EPA voluntarily dismisses 4th Circuit CAFO appeal – October 14, 2014

EPA has voluntarily dismissed the matter of Alt v. EPA, 4th Cir., No 13-2534, concerning the "Alt CAFO" in West Virginia. After the owner agreed to make changes to the operations to reduce pollution, EPA confirmed that such reduction would occur and withdrew the order and requested the court dismiss the case. See more in EPA's blog.

USGS releases a study which confirms fears that Nevada's water pumping in the Snake Valley will deplete Utah's groundwater in the region. - September 25, 2014

The USGS published conclusions that proposed withdrawals from the Snake Valley aquifer, by the Southern Nevada Water Authority, will depress groundwater levels and reduce discharge into the springs that support agriculture in this remote region, which straddles the Utah-Nevada line west of Delta. The two states almost reached an agreement on this issue, but Utah backed out last year (based in part on those concerns). See a copy of the study here. And read more about the issue here.

Gov. Brown Signs California Sustainable Groundwater Management Act Into Law - September 24, 2014

On September 17, 2014, Governor Jerry Brown singed the Sustainable Groundwater Management Act into Law, which expands regulations on groundwater management in California. The new laws (actually comprised of three separate bills) are designed to catch California up to many other states who already have statewide groundwater management systems, although the short-term impact will be mainly empowering local agencies to begin developing basin-wide groundwater management plans, metering wells, monitoring groundwater use, and imposing fines in to enforce restrictions.

BP Found Grossly Negligent by District Court - September 4, 2014

The Eastern District of Louisiana held that BP was grossly negligent for discharges into the Gulf of Mexico in 2010 from the Deepwater Horizon oil spill, in violation of the Clean Water Act. This finding subjects BP to up to $18 billion in penalties under the CWA, and possibly billions of dollars more in punitive damages. The decision can be found here.

Vermont Received $46 Million from USDA for the Lake Champlain Algal clean-up. August 28, 2014

Vermont received $46 million in commitments over a 5-year period from the US Department of Agriculture to combat blue-green algal blooms plaguing Lake Champlain suspected to be caused by excessive phosphorus. The money will be used to help farmers create buffers to prevent phosphorus runoff and adopt better tillage techniques, among other efforts. Read more about it here.

Reply Brief filed in Chesapeake Bay TMDL Case - August 20, 2014

American Farm Bureau Federation filed its reply brief in the closely watched Third Circuit Chesapeake Bay TMDL case, American Farm Bureau Federation v. USEPA. The reply brief argues that EPA’s interpretation of Chevron is erroneous, that EPA has no authority to add source limits, “Reasonable Assurance” requirements, or deadlines under Clean Water Act § 303(d). Read the full brief here.

Freedom Industries Filed a Bankruptcy Plan - August 18, 2014

Freedom Industries filed a proposed Chapter 11 plan in U.S. Bankruptcy Court for the Southern District of Western Virginia. Freedom Industries was identified as the party responsible for a chemical leak affecting the Elk River. The spill cut off water supplies for over 300,000 people and impacted several businesses outside of Charleston. (brief available with a PACER account from Court website).

City of San Diego agrees to pay $1 million for MS4 violations - August 13, 2014

The City of San Diego agreed to pay $1 million in penalties for failing to violations of the City's Municipal Separate Storm Sewer System ("MS4") permits at six public projects. The official documents can be found at the Regional Water Quality Control Board, San Diego Region website.


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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Co-Chairs:

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Schutz, Jonathan

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Water Resources - Archive

Modified by Romeo Talento on November 11, 2014

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