Recent Water Law Cases
You can visit the archived cases here.
Updated on September 17, 2014
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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You can visit the archived news articles here. Updated September 9.
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.