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Water Resources

Water Resources


Message From The Co-Chairs



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


Andrea Clark, Kirk Tracy, and the 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 Andrea directly at aclark@DowneyBrand.com.

Under the direction of Susan M. Ryan, the Committee is preparing for the 34th Annual SEER Water Law Conference, which will be held March 29-30, 2016, at the Hyatt Regency in Austin, Texas. See more details here. This is the same SEER Water Law Conference that used to be held in February in San Diego, was held in Las Vegas for 2013 and 2014, and in Denver last year. 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, continues to work hard on the multiple committee newsletters we hope to publish 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 djohnson@cap-az.com, 623-869-2375, or SNegro@rc.com, 860-275-8316, 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 Sorell Negro
2015-2016 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.

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Recent Water Law Cases & Hot News

Recent Water Law Cases

You can visit the archived cases here.

Updated on April 27, 2016

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”).

Puget Soundkeeper Alliance v. Rainier Petroleum Corp. 45 ELR 20194 No. 14831 (W.D. Wash. Oct. 5, 2015) By Chelsea E. Hebert

The U.S. District Court for the Western District of Washington granted in part plaintiff Puget Soundkeeper Alliance’s (“Soundkeeper”) motion for partial summary judgment in its case alleging that defendant Rainier Petroleum Corp.

Taos Ski Valley Inc. v. Nova Casualty Co. 2015 WL 9597908 (D.N.M. Dec. 30, 2015) By Dennis D. Davis II

On December 30, 2015, the District Court of New Mexico dismissed a claim by Taos Ski Valley (“Plaintiff”) for insurance liability coverage from Nova Casualty Company (“Defendant”) because of an exclusion within Plaintiff’s commercial general liability (“CGL”) policy.

Askins v. Ohio Dep’t of Agric. 809 F.3d 868, 870 (6th Cir. Jan. 6, 2016) By Michael Scott

The Sixth Circuit Court of Appeals recently rejected Larry and Vickie Askins’ ("Plaintiffs") appeal of the district court’s dismissal of their citizen suit, filed against the U.S. Environmental Protection Agency ("EPA"), the Ohio Environmental Protection Agency ("OEPA"), and the Ohio Department of Agriculture ("ODA") (collectively, the "Defendants"), concerning alleged violations of the Clean Water Act’s agency permitting procedures.

In re Methyl Tertiary Butyl Ether Products Liability Litigation No. 1:00-1898, (S.D.N.Y., 10/01/2015) (Scheindlin, J.) By Georgia L. Nackley

The District Court for the Southern District of New York recently denied oil and gas companies' motions to dismiss claims that their use and handling of methyl tertiary butyl ether (MTBE) has contaminated or threatens to contaminate groundwater in Puerto Rico.

Good v. American Water Works Co., Inc. 2015 WL 5898465 (S.D. W. Va. Oct. 8, 2015) By Jason M. Groves, Esq.

On October 8, 2015, the Southern District of West Virginia partially granted a motion to certify a class of individuals in a lawsuit stemming from the 2014 chemical spill in the Elk River, which occurred near Charleston, West Virginia.

Siskiyou Cnty. Farm Bureau v. Cal. Dep’t of Fish & Wildlife 188 Cal. Rptr. 3d 141 (Cal. Ct. App. 2015) By Drew Levinson

In June 2015, California’s Third District Court of Appeal (the "Court") overturned an injunction against the California Department of Fish and Wildlife ("CDFW"), which had prohibited the agency from bringing any enforcement action against agricultural water diverters for failing to notify CDFW of plans to divert water. Siskiyou Cnty. Farm Bureau v. Cal. Dep’t of Fish & Wildlife ("CDFW"), 188 Cal. Rptr. 3d 141, 141 (Cal. Ct. App. 2015), as modified on denial of reh’g (June 26, 2015).

In re Environmental Protection Agency (6th Cir. Oct. 9, 2015) By Ashley Stilson

In the consolidated, multi-circuit proceedings concerning the Environmental Protection Agency’s ("EPA") and the U.S. Army Corps of Engineers’ (the "Corps") recently promulgated final "Clean Water Rule" (the "Rule"), the United States Court of Appeals for the Sixth Circuit (the "Court") recently granted the petitioners’ motion to stay enforcement of the Rule pending the Court’s complete review. In re Environmental Protection Agency, 803 F.3d 804, 806 (6th Cir. Oct. 9, 2015).

Wilbur Hardy v. State Land Board 2015 WL 5949992 (Or. Ct. App. Oct. 14, 2015) By J. Justin Woods

In Hardy v. State Land Bd., No. 083817Z7, 2015 WL 5949992 (Or. Ct. App. Oct. 14, 2015), the Oregon State Land Board and the Department of State Lands sought to overturn the judgment of a Circuit Court setting aside the Board’s declaration of ownership of land underlying an 89-mile segment of the Rogue River.

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 Kirk Tracy.

Federal Judge Dismisses Class Action Filed by Flint Residents - April 22, 2016

Earlier this week, U.S. District Court Judge John Corbett O’Meara dismissed a lawsuit filed by several residents and a business in Flint, Michigan, seeking $150 million in damages relating to the Flint water crisis. Judge O’Meara ruled that the federal Safe Drinking Water Act (“SDWA”) preempted the plaintiffs’ damages claims, as the SDWA only provides for prospective injunctive relief. However, Judge O’Meara noted that a state court might have jurisdiction over the plaintiffs’ claims. It is unclear at this point how Judge O’Meara’s decision will impact the other dozen or so pending lawsuits relating to the Flint water crisis.

Sixth Circuit Denies Rehearing WOTUS Ruling That All Challenges to the Rule Should be Litigated in the Appellate Court – April 21,2016

The Sixth Circuit Court of Appeals has denied a request to rehear and reconsider its determination that it has jurisdiction to hear a challenge to the Waters of the United States (WOTUS) rule. As the parties consider whether to petition the Supreme Court for review, it is noteworthy that Sixth Circuit has already determined the WOTUS rule is likely invalid and has prohibited implementation of the rule nationwide until it makes a final decision.

Supreme Court Affirms Special Master Decision on Yellowstone River Compact and Wyoming's Withdrawals from the Tongue River – March 28, 2016

Last week, the Supreme Court affirmed the decision of Special Master Barton Thompson Jr. that Wyoming unlawfully deprived Montana of water from the Tongue River for just two of the fifteen years Montana asserted it did not received its fair share. Montana alleged that Wyoming's withdrawals violated the Yellowstone River Compact, which governs water apportionment rights for the Yellowstone River and its tributaries, including the Tongue River. The Court referred the case back to Special Master Thompson for determination of damages and other relief.

Utah Supreme Court Stay Limits the Public's Access to Waters – February 24, 2016

On February 24th, the Utah Supreme Court stayed a state court judge’s November 2015 ruling that invalidated a state public access water law known as HB141. According to Utah 4th District Judge Derek Pullan, HB141 restricts public access to almost half of Utah’s rivers and streams. Practically, HB141 prohibits individuals fishing or recreating in public water flowing over private property from walking on the land beneath that water without permission from the private landowner. As a result of the Court’s stay, HB141 reverts back into effect until the Court issues a decision on the merits.

Ex-New Jersey Official Sentenced to Three Years for Falsifying Water Purity Data – February 8, 2016

A former operator of public drinking water utilities for two New Jersey towns received a three year prison sentence this week. The ex-official received his sentence after pleading guilty to second-degree corruption of public resources and third-degree violations of New Jersey’s Safe Drinking Water Act. Over the course of thirty months, he regularly falsified water quality data samples for public drinking water in the cities of New Brunswick and Milltown. Independent testing by the EPA and the New Jersey Department of Environmental Protection uncovered the ex-official’s fraud, leading to his criminal charges.

California adopts new water diversion reporting regulations – January 20, 2016

The California State Water Resources Control Board has adopted regulations requiring all users who divert water to measure and report how use annually. The new regulations apply to thousands of water rights holders across the state, from farmers to water agencies, in an effort to provide a better accounting of how much water is drawn from rivers and streams. Some rights holders were previously required to report only every three years, and a number of them were able to claim an exemption to the measurement requirements. See more here.

Flint, Michigan residents file multiple suits against Governor and state agencies – January 19, 2016

Residents of Flint, Michigan have filed multiple lawsuits, including two class-action suits, against the Governor, former Flint emergency managers, the state Department of Environmental Quality, state Department of Health & Human Services and Genesee County. The suits are seeking immediate action to address the continued drinking water crisis, and include claims regarding "false assurances" concerning safety of the drinking water. Read more here.

Challenges to Crow Water Compact (MT) Denied – December 30, 2015

The Montana Supreme Court again affirmed the rejection of challenges to the Crow Water Compact, originally signed in 1999, which establishes a 500,000 acre-feet per year natural flow water right from the Big Horn River Basin and an additional 300,000 acre-feet per year via a conditional grant from the U.S. from Bighorn Lake. The Court held that the water court applied the proper standard of review in approving the compact, and that the individual objectors to the compact failed to show that the agreement was unreasonable and materially injured their interests, nor did the negotiation process violate their due process rights. Read more here.

San Diego Desalination Plant Starts Operations – December 15, 2015

After 18 years of legal hurdles and funding challenges, the desalination plant in Carlsbad, California came online this month. The plant will supply up to 50 million gallons of drinking water per day, making it the largest desalination plant ever built in the Western Hemisphere. Questions remain over the need for the plant, and similar projects proposed for the future will face stiffened challenges. Read more here.

Supreme Court Agrees to Consider Whether Army Corps Jurisdictional Determination is Subject to Judicial Review – December 11, 2015

In the matter of U.S. Army Corps of Engineers v. Hawkes, et al. (No. 15-290), on December 11, 2015, the U.S. Supreme Court agreed to review whether a Clean Water Act jurisdictional determination issued by the Army Corps of Engineers, determining whether certain wetlands are "waters of the United States", is subject to judicial review. The Clean Water Act does not require judicial determinations, but approval of one by the Corps indicates it will require a Section 404 dredge-and-fill permit. See more about the underlying 8th Circuit decision here

States and Congress Members Support Challenge to Chesapeake Bay TMDL – December 10, 2015

Ninety-two members of Congress, nearly two dozen states and national industry groups, including the U.S. Chamber of Commerce, filed amicus briefs in American Farm Bureau Federation, et al. v. EPA, et al. (No. 15-599) supporting a petition for review before the U.S. Supreme Court to review the legality of the EPA’s 2010 TMDL for the Chesapeake Bay. In July, the 3rd Circuit upheld EPA’s plan and specifically its inclusion of wasteload and load calculations. States are particularly concerned about the precedent that may be set for a similar plan for the Mississippi River Basin. Read more about the 3rd Circuit’s ruling in SEER’s latest issue of Trends.

California Appellate Court Finds Groundwater Extraction Fees Legal – December 8, 2015

On December 8, 2015, the California Sixth Appellate District reversed a trial court’s 2010 ruling that had awarded Great Oaks Water Company a $4.6 million refund for groundwater withdrawal fees. In Great Oaks Water Co. v. Santa Clara Water Dist. (Cal. Ct. App., No. H035260, Dec. 8, 2015, available here), the appellate court found that the water district had satisfied provisions of the California Constitution requiring notice and comment for new fees, and that the groundwater extraction fees were a constitutional property-related charge. The case seems to conflict with some other recent rulings in other Appellate Districts. This issue is expected to be appealed to the California Supreme Court, partly in hopes of settling the contradictions amongst the recent rulings. Read more here.

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Committee Chair

Co-Chairs:

Johnson, David
Negro, Sorell

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Water Resources - Archive

Modified by Peter Clark on April 27, 2016

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