Recent Water Law Cases
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United States v. Orr Water Ditch Co., (In re State Engineer Ruling No. 6126)
by Christie Jean
On September 26, 2013, the U.S. District Court for the District of Nevada upheld a decision by the Nevada State Engineer (“SE”) permitting landowners (the “Schulers”) to change their water rights by diverting water from Big Ditch (“BD”) rather than through the normal conduit. See United States v. Orr Water Ditch Co., 2013 WL 5437942 (D. Nev. Sep. 26, 2013). Read more.
Aransas Project v. Bryan Shaw et al. 930 F. Supp. 2d 716 (S. D. Tex. Aug. 28 2013)
by Rafael Wolff
The Aransas Project, an environmental organization, sued the Texas Commission on Environmental Quality (“TCEQ”) and its officials for violating of the Endangered Species Act (“ESA”). 16 U.S.C. § 1531. The U.S. District Court of the Southern District of Texas held that TCEQ’s failure to properly manage water resources led to the unlawful taking of the whooping crane, an endangered species. Aransas Project v. Brian Shaw, 930 F. Supp. 2d 716, 722 (S.D. Tex. Aug. 28 2013). Read more.
Wild Fish Conservancy v. Jewell, 2013 U.S. App. LEXIS 18848 (9th Cir. Sept. 11, 2013)
by Stephanie Rich
On September 11, 2013, the United States Court of Appeals for the Ninth Circuit dismissed the Wild Fish Conservancy’s (“the Conservancy”) challenge to a water diversion in the state of Washington because the Court held that the Conservancy lacked prudential standing and because the agency’s action were not reviewable agency action under the Administrative Procedure Act (“APA”). Wild Fish Conservancy v. Jewell, 2013 U.S. App. LEXIS 18848, at *27 (9th Cir. Sept. 11, 2013). Read more.
Edwards Aquifer Auth. v. Bragg No. 04-11-00018-CV, Aug. 28, 2013, 2013 WL 4535935
by Jack Lyman
On August 28, 2013, the San Antonio Court of Appeals addressed issues regarding the regulation and permitting of groundwater resources in southern Texas. The court upheld the trial court's finding of a taking of the plaintiffs' property rights in groundwater, but reversed that court’s determination of compensation owed and remanded for reconsideration of compensation under a different formula. Read more.
Southern Appalachian Mountain Stewards v. A & G Coal Corp. 2013 WL 3814340 (W.D. Va. July 22, 2013)
by Jack Lyman
In July 2013, the U.S. District Court for the Western District of Virginia addressed a somewhat novel issue relating to a coal company’s National Pollution Discharge Elimination System (“NPDES”) permit under the Clean Water Act (“CWA”). The court held that the company violated the CWA by discharging selenium, a pollutant not included in its NPDES permit, in the course of its operations. S. Appalachian Mountain Stewards v. A & G Coal Corp., 2013 WL 3814340, at *8 (W.D. Va. July 22, 2013). The court also rejected the defendant’s permit shield argument, holding that this defense does not apply when a permittee does not disclose a pollutant in its permit application. Id. Read more.
Pyramid Lake Paiute Tribe of Indians v. Nevada Department of Wildlife 724 F.3d 1181 (9th Cir. July 30, 2013)
by Nicole Sasaki
The U.S. Court of Appeals for the Ninth Circuit affirmed the decision of the U.S. District Court for the District of Nevada that the diversion of water for wildlife habitat
does not constitute “irrigation” within the meaning of the Alpine Decree, a prior decision governing the transfers of water rights affecting Pyramid Lake in Nevada. Pyramid Lake Paiute Tribe of Indians v. Nev., Dep’t of Wildlife, 724 F.3d 1181 (9th Cir. July 30, 2013). The decision interprets the Alpine Decree to limit significantly transfers of water rights covered by the decree to restore wildlife habitat. Read more.
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Changes to Water Supply and Quality from Climate Change Are Leading Concerns for Mining Industry - 12/8/13
On December 4, 2013, Rio Tinto spokesperson Sue Lacey announced during a Center for Climate and Energy Solutions webinar that changes to water supply and water quality as a result of climate change will be a leading concern for the mining industry in future years. Rio Tinto itself is taking a long-term, strategic planning approach to the issue.
EPA and DOA Sign New Partnership to Promote Water Quality Trading - 12/8/13
On December 3, 2013, the U.S. Environmental Protection Agency and U.S. Department of Agriculture announced a five-year partnership to promote water quality trading particularly focused on reducing nutrient and sediment pollution in the nation's waterways. The partnership agreement, signed November 18, 2013, supersedes the prior 2006 agreement between the two agencies and implements the EPA's 2003 water quality trading policy.
Chesapeake Bay Program Annual Report Shows Challenges from Pollution and Development - 12/8/13
On December 3, 2013, the Chesapeake Bay Program released its new annual report. While the Bay's water quality is slowly improving, the report emphasizes that there will be a lag of at least a decade between water quality improvement measures and significant improvements in the Bay's water quality.
CA Imperial Irrigation District Agrees to Share Costs of Repairing Water Infrastructure In Mexico - 12/8/13
On December 3, 2013, California's Imperial Irrigation District (IID) approved an agreement with the Metropolitan Water District of Southern California (MWD) to share the costs of repairing water infrastructure in Mexico that was damaged in 2010 by an earthquake. The agreement helps to implement treaty Minute 319, which was signed November 20, 2012, pursuant to the 1944 U.S.-Mexico Treaty for Utilization of Waters of the Colorado and Tijuana Rivers and the Rio Grande.
Colorado Oil and Gas Association Sue Cities for Banning Fracking - 12/8/13
On December 3, 2013, the Colorado Oil and Gas Association (COGA) sued the cities of Fort Collins and Lafayette in Colorado, claiming that those cities' bans on hydraulic fracturing violate state law. Colorado Oil and Gas Ass'n v. City of Fort Collins, Colorado County Court, Larimer County, docket number unavailable, 12/3/13; Colorado Oil and Gas Ass'n v. City of Lafayette, Colorado County Court, Boulder County, docket number unavailable, 12/3/13. Fort Collins has imposed a five-year moratorium on hydraulic fracturing, while Lafayette has completely banned the use of hydraulic fracturing in drilling.
United States Files Brief in Opposition to SCOTUS Granting Cert. in Takings Claim Involving Clean Water Act Permit Denial - 12/8/13
On November 25, 2013, the United States filed its brief in opposition to the U.S. Supreme Court granting certiorari in Mehaffy v. United States, U.S. No. 12-1416, which involves a Fifth Amendment taking claim claim by an Arkansas landowner after he was denied a Clean Water Act Section 404 dredge and fill permit. The U.S. Court of Appeals for the Federal Circuit had ruled against the landowner, denying the takings claim because the landowner had no investment-backed expectations in the development of his property fronting the Arkansas River.
Landowners Sue San Luis Obispo County Over Ordinances Restricting Groundwater Use - 12/8/13
On November 25, 2013, two sets of landowners within the Paso Robles Groundwater Basin in California sued San Luis Obispo County, alleging that the county's new ordinances restricting groundwater use violate state law and the petitioners' water rights. Paso Robles Water Integrity Network v. Cnty. of San Luis Obispo, Cal. Super. Ct., No. CV138301, petition filed 11/25/13; Steinbeck v. Cnty. of San Luis Obispo, Cal. Super. Ct., No. CV138303, petition filed 11/25/13. County Emergency Ordinance 3246 was enacted on August 27, 2013, and imposed a moratorium on new construction and the planting of irrigated crops that rely on groundwater unless the water use can be offset by an 11:1 margin. County Ordinance 3247, enacted October 8, 2013, extends the moratorium for more than another 22 months.
San Diego To Increase Revenues from Water by 14% - 12/8/13
On November 21, 2013, the San Diego City Council approved the Public Utility District's plan to increase revenues from water by 14% over the next two years. In addition, the Council approved a new fourth pricing tier for customers using in excess of 1,900 cubic feet per billing cycle.
New Report Shows Increased Loss of Coastal Wetlands - 12/8/13
On November 21, 2013, the U.S. Fish & Wildlife Service and National Oceanic and Atmospheric Administration (NOAA) released their new report on the nation's coastal wetlands, Status and Trends of Wetlands in the Coastal Watersheds of the Coterminus United States 2004-2009. The report concludes that the United States loses about 80,000 acres of coastal wetlands every year, a rate of loss six times greater than the average wetlands loss in the United States and significantly higher than the agencies' last reported rate of coastal wetlands loss of 60,000 acres per year.
Subsidence from Excessive Groundwater Withdrawals in San Joaquin Valley Threatens Water Infrastructure - 12/8/13
On November 21, 2013, the U.S. Geological Survey released a new report indicating that over-pumping of groundwater in California's San Joaquin Valley is causing land subsidence that is in turn now threatening critical water delivery infrastructure, including the Delta-Mendota Canal. The U.S. Bureau of Reclamation commissioned the report.
Lower Colorado River Authority Seeks to Cut Off Irrigation Water Releases from Lakes Buchanan and Travis - 12/8/13
On November 19, 2013, the Board of the Lower Colorado River Authority voted to seek permission from the Texas Commission on Environmental Quality to cut off irrigation water releases from Lakes Buchanan and Travis beginning March 1, 2014, if the combined storage level of the reservoirs failed to reach a level of 1.1. million acre-feet. In 2012 and 2013, the March 1 level for curtailment was 850,000 acre-feet.
Special Master Recommends Nebraska Pay Kansas $5.5 Million - 11/19/13
On November 15, 2013, the Special Master in the U.S. Supreme Court's case of Kansas v. Nebraska recommended that Nebraska pay Kansas $5.5 million to resolve their dispute over Kansas's use of water from the Republican River. Specifically, the Special Master found that Nebraska took 70,869 acre feet of water above its allocation in 2005 and 2006. (Read more by clicking here.)
Johnson Foundation Releases Report on Water and Utilities - 11/19/13
On November 18, 2013, the Johnson Foundation released its new report, "Building Resilient Utilities: How Water and Electric Utilities Can Co-Create Their Futures." The report argues that water and electric utilities must collaborate with each other and with other sectors of society to ensure water and electricity security in times of water shortage and climate change.
Missouri to Provide $2.2 Million for Lake Construction Project - 11/19/13
On November 15, 2013, Governor Jay Nixon (D) of Missouri announced that Missouri will provide $2.2 million to the North Central Missouri Regional Water Commission for a lake construction project. When completed, the 2,235-acre reservoir will provide about 7 million gallons of water a day to customers in a 10-county area.
California and Illinois Issue Draft Rules to Regulate Fracking - 11/19/13
On November 15, 2013, both California and Illinois issued draft rules to regulate hydraulic fracturing, and both have water implications. California's proposed rules stress public notification, but they would also require continuous monitoring and an analysis of other nearby wells and earthquake faults to prevent fluid migration. Illinois's draft rules comprehensively regulate hydraulic fracturing. Critics have characterized the rules as "very prescriptive." Among other things, they would require permits, impose well site preparation and construction standards, mandate water quality monitoring, and require post-closure plugging of wells and land restoration and enforcement.
Federal Partnership Created to Help State and Local Governments Face Drought - 11/19/13
On November 15, 2013, the Obama Administration announced a new federal partnership designed to aid state and local governments to access federal resources for increasing resiliency in the face of drought. The National Drought Resilience Partnership is intended to act as a clearinghouse for all federal drought-related information and resources.