Recent Water Law Cases
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Updated on March 13, 2017
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”).
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.
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.