Recent Water Law Cases
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Updated on January 25, 2016
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.
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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.