American Bar Association
 
Water Resources
American Bar Association Energy and Resources Committees

Water Resources


Message From The Chairs



We are well into 2014 and, as always, there is a lot happening in water resources and the SEER Water Resources committee.



Sorell Negro and her fabulous team continue to provide Committee members with case summaries and Hot News. If you would like to contribute to either, please contact Sorell directly at SNegro@rc.com.



We recently held our first conference call on the topic of state water resources planning. It was moderated by Tim Weston from Pennsylvania and included panelists from Montana, Colorado and West Virginia.



On the heels of the 43rd Annual SEER Spring Conference in Salt Lake City, UT, in March, the Committee is preparing for the 32nd Annual SEER Water Law Conference, which will be held June 4-6, 2014, at the Red Rock Resort in Las Vegas, NV. This is the same SEER Water Law Conference that used to be held in February in San Diego. This year's program will cover topics that are increasingly relevant to water lawyers, managers and users. Sessions will cover: Tribal Water Law 101; tribal water settlements; the water implications of new energy regulations; the new green water infrastructure (and its financing); emerging interstate water issues; constitutional takings litigation over water rights; and a “nuts-and-bolts” hydrology session, among others. The conference is held near the Red Rock Canyon National Conservation Area and will include a field trip to the Hoover Dam. You can register for the conference here: http://www.americanbar.org/calendar/2014/06/32nd-annual-water-law-conference.html



The conference is only possible with the help of the remarkable people on our planning committee. Thank you all!



We always welcome members to become involved in the Committee’s ongoing evolution, especially with respect to Programs suggestions and contributions to the Committee Newsletter. Contact us at robinkcraig@gmail.com, 801-585-5228, or jschutz@mwjlaw.com, 801-359-3663, with any ideas you have about how the Water Resources Committee or SEER can better serve your 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.



Robin Craig, Co-chair, Water Resources Committee


Jon Schutz, Co-Chair, Water Resources Committee


Recent Water Law Cases & Hot News



Recent Water Law Cases

You can visit the archived cases here.

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Drakes Bay Oyster Company v. Jewell, 729 F.3d 967 (9th Cir. Sept. 3, 2013)
by Jack J. Bingham

This appeal pits “an oyster farm, oyster lovers, and well-known ‘foodies’ against environmentalists aligned with the federal government.” Drakes Bay Oyster Co. v. Jewell, 729 F.3d 967, 971 (9th Cir. 2013). In ruling for the federal government, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's decision that denied Drakes Bay Oyster Company’s (“Drakes Bay”) request for an injunction requiring the U.S. Department of the Interior ("Interior") to issue a special use permit. Id. Read more.

Yellow Jacket Water Conservancy District v. Livingston, 318 P.3d 454 (Colo. 2013)
by Katherine Clark

On December 23, 2013, the Supreme Court of Colorado reviewed the water court’s determination that a water conservancy district’s board of holdover directors could no longer act on a district’s behalf one year after their terms expired, making the filing of certain diligence applications invalid. Yellow Jacket Water Conservancy Dist. v. Livingston, 318 P.3d 454, 455 (Colo. 2013). Read more.

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 2014 U.S. Dist. LEXIS 42535 (S.D.N.Y. Mar. 28, 2014)
by Edward Teyber

On March 28, 2014, the U.S. District Court for the Southern District of New York vacated EPA’s Water Transfers Rule (“Rule”), which had created an exception to the Clean Water Act (“CWA”) National Pollution Discharge Elimination System’s (“NPDES”) permitting scheme for water transfers. The Rule was codified under EPA’s “Exclusions” regulation, 40 C.F.R. § 122.3(i). Read more.

Strudley v. Antero Resources Corp., , 2013 WL 3427901 (Colo. App. July 3, 2013)
by Emily Deans

Water and property contamination from natural gas production recently became the occasion for the Colorado courts to examine the state’s toxic tort procedures. The Strudley family brought a toxic tort action against four natural gas companies, claiming property damage and physical injuries from the companies’ natural gas drilling operations near their home. Read more.

Robinson Township v. Commonwealth, 2013 WL 6687290 (Pa. Dec. 19, 2013)
by Michael Tone

The Supreme Court of Pennsylvania recently reviewed the Commonwealth Court’s en banc ruling on the constitutionality of Act 13, a controversial amendment to the Pennsylvania Oil and Gas Act (“Act”). Robinson Twp. v. Commonwealth,2013 WL 6687290, at *4 (Pa. Dec. 19, 2013). Read more.

Water Replenishment Dist. of S. California v. City of Cerritos, 220 Cal. App. 4th 1450 (2013)
by Mohammed Alsudais

The California Court of Appeals, Second Appellate District, decided that, until a court judgment on the issue is final, the City of Cerritos must continue to pay potentially illegal assessments if it wishes to continue to pump groundwater within its groundwater management district. Read more.

Swinomish Indian Tribal Community v. Department of Ecology, 311 P.3d 6 (Wash. 2013)
by Alan Weinberg

On October 3, 2013, the Supreme Court of Washington reversed a trial court order dismissing the Swinomish Indian Tribal Community’s (“Tribe”) challenge to the Department of Ecology’s (“Ecology”) decision to amend the Skagit River Basin Instream Flow Rule. Read more.

Oneida Tribe of Indians of Wis. v. Hobart, 2013 WL 5692337 (7th Cir. Oct. 18, 2013)
by Michael Tone

The U.S. Court of Appeals for the Seventh Circuit affirmed the U.S. District Court for the Eastern District of Wisconsin’s ruling granting summary judgment to the Oneida Tribe of Indians of Wisconsin (“Tribe”) and the third-party defendant United States of America. Read more.

Ecological Rights Foundation v. Pacific Gas and Electric Co., 713 F.3d 502 (9th Cir. 2013)
by Tom DeLawrence

On April 3, 2013, the United States Court of Appeals for the Ninth Circuit issued an important victory for users of wooden utility poles treated with pentachlorophenol (“PCP”) and other hazardous substances. In the case, Ecological Rights Foundation (“Plaintiff”) innovatively attempted to classify the utility poles as a point source subject to regulation under the Clean Water Act (“CWA”) and also to classify the chemicals escaping from the poles as a solid waste subject to regulation under the Resource Conservation and Recovery Act (“RCRA”). Read more.

Ecological Rights Foundation v. Pacific Gas & Electric Co., 713 F.3d 502 (9th Cir. 2013)
by Zaven A. Sargsian

The poet John Updike, in his ode to nature, referred to them as like “a race of giants,” “more constant than evergreens [b]y being never green.” John Updike, Telephone Poles (Knopf 1st Ed. Aug. 12, 1963). The race of giants Updike was referring to are telephone poles. These “giants” became the topic of an opinion by the U.S. Court of Appeals for the Ninth Circuit in Ecological Rights Foundation v. Pacific Gas & Electric Company, 713 F.3d 502 (9th Cir. 2013). Read more.

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Hot News

If you have a hot news item that you would like posted, please send it to Sorell Negro at snegro@rc.com.

You can visit the archived news articles here.

Riverkeeper to Renew Lawsuit Against EPA for Missing Deadline for Cooling Water Intake Rule - 4/20/14
On April 16, 2014, Riverkeeper Inc. refused to agree to an eighth extension of time for the EPA to finalize its cooling water intake rule, under section 316(b) of the Clean Water Act. EPA missed its April 17, 2014 deadline, stating that it needs additional time to consult with the Fish and Wildlife Service and the National Marine Fisheries Service under the Endangered Species Act, and it will publish its final rule on May 16, 2014. Riverkeeper stated it intends to renew the litigation on this issue in Riverkeeper Inc. v. EPA.

California 2014 "Drought Operations Plan" Announced - 4/20/14
California and federal officials revealed a Drought Operations Plan for California's water resources for this year. The plan includes loosening water quality rules in the Sacramento-San Joaquin Delta and additional breeding of the endangered winter-run Chinook salmon. It does not increase water delivery allocations for agricultural and municipal agencies.

Buffalo Sewer Authority to Spend $380 Million on Improvements - 4/20/14
The Buffalo Sewer Authority will spend $380 million on infrastructure improvements over the next 20 years to treat waste and pollution flowing into the Niagara River. The EPA and the Buffalo Sewer Authority entered into an agreement to reduce by 70% the 1.75 billion gallons of untreated water from storm and sanitary sewers that flow into the Niagara River every year. About a quarter of the money will go toward "green infrastructure" to prevent stormwater from reaching treatment plants.

EPA Proposes $1.7 Billion Remediation Plan for Passaic River - 4/20/14
On April 11, 2014, the EPA announced a $1.7 billion clean-up plan for the lower 8 miles of the Passaic River in New Jersey, one of the largest Superfund remediation projects ever proposed. The plan is the product of 25 years of study and involves removing over 4 million cubic yards of contaminated sediment from the river bottom. The contaminants include dioxins and polychlorinated biphenyls (PCBs). The EPA expects to finalize the plan in early 2015 after considering comments from the public.

IPCC Finalizes Report on Climate Change Impacts - 4/1/14
The Intergovernmental Panel on Climate Change (IPCC) finalized a report on present and future impacts from climate change, and the potential for, and limits to, adaptation - building on four prior reports. Impacts include increased risks of floods, droughts, and heat waves, and the report concluded that many of the extreme impacts exceed our adaptive capability. For more information, click here.

EPA Proposes New Rule Interpreting Clean Water Act Jurisdiction - 4/1/14
On March 25, 2014, the EPA proposed a new rule to clarify what waters are protected under the Clean Water Act (CWA). Under the proposed rule interpreting the definition of "waters of the United States," the CWA would protect, among other waters, interstate waters, waters able to be used in interstate commerce, tributaries of such waters, and waters and wetlands that are adjacent to such waters. Other waters and wetlands will be evaluated on a case-by-case basis to determine whether they have a "significant nexus" to these other protected waters; if so, they are also within the CWA's jurisdiction.

U.S. Supreme Court Denies Cert. in Mingo Logan Case - 4/1/14
On March 24, 2014, the U.S. Supreme Court denied certiorari in Mingo Logan Coal Co. v. EPA, No. 13-599, declining to review a decision by the D.C. Circuit Court that EPA may revoke permits issued by the Army Corps of Engineers under the Clean Water Act (CWA), pursuant to Section 404(c) of the CWA.

Florida to Provide $27 Million to Improve Central Florida Water Quality - 3/19/14
On March 14, 2014, Gov. Rick Scott and the Florida Department of Environmental Protection announced that 11 wastewater and stormwater projects in central Florida will receive over $27 million in loan funding through the Clean Water State Revolving Fund Program. The funds are intended to make critical upgrades to water infrastructure. Click here for the announcement and a description of the projects.

Fish & Wildlife Service Opinion that Central Valley Project Would Threaten Delta Smelt Upheld - 3/19/14
On March 13, 2014, the Ninth Circuit held that the U.S. Fish and Wildlife Service's (FWS) reliance on raw salvage figures to set the upper and lower Old and Middle Rivers flow limits was not arbitrary and capricious. The FWS had concluded in 2008 that California's Central Valley and State Water Projects jeopardized the delta smelt and its habitat. The court concluded that choosing the more conservative model in predicting flows was supported by substantial evidence and was within the FWS's jurisdiction. The decision is available here: San Luis & Delta-Mendota Water Authority v. Jewell, No. 11-15871.

Sixth Circuit Upholds Section 404 Permit Issued for Secondary Mining Project in Kentucky - 3/19/14
On March 7, 2014, the Sixth Circuit held that the U.S. Army Corps of Engineers complied with the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA) when it issued a permit under Section 404 of the CWA to a mining company for filling jurisdictional waters, in connection with a mining project that was part of a larger mining operation in Kentucky. The court held that "the Corps did not abuse its discretion in limiting the scope of its environmental analysis only to health effects closely related to the discharge of dredged or fill material into jurisdictional waters," and thus did not violate NEPA. The decision is available here.


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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Basic Practice Series: Clean Water Act, Second Edition
The most recent update to the popular "Basic Practice Series," this is a practice-focused guide to the Federal Water Pollution Control Act, commonly k... more

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Co-Chairs:  Robin Kundis Craig, Jonathan R Schutz

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