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Water Resources

Water Resources


Message From The Co-Chairs



SEER’s Water Resources Committee is kicking off an exciting 2016-2017 bar year! Co-chairs Andrea Clark and Sorell Negro are delighted to be working with a terrific team of vice chairs:



  • Newsletter Vice Chair: Jeff Kray

  • Programs Co-Vice Chair: Roger Sims

  • Programs Co-Vice Chair: Nancy Bethurem

  • Year-in-Review Vice Chair: Mitra Pemberton

  • Membership Vice Chair: Scott Warner

  • E-Communications Vice Chair: Kyle Robisch

  • Social Media Vice Chair: Dave Gold


Kyle Robisch will be leading the fabulous Team Website in its fourth year of providing Committee members with water law case summaries and Hot News. These summaries involve water law cases all over the country. If you would like to contribute, such as by writing a case summary or volunteering as an editor, please contact Kyle directly at kylewrobisch@gmail.com.


We are also looking forward to SEER’s Fall Conference on October 5-8, 2016 in Denver, at the Denver Westin Downtown. Click here to learn more and register: http://www.americanbar.org/groups/environment_energy_resources/events_cle.html. We hope to see you there!


Under the direction of Nathan Bracken, the Committee is preparing for the 35th Annual SEER Water Law Conference, which will be March 28-29, 2017, at the Loews Hollywood Hotel in Los Angeles. This is the same SEER Water Law Conference that used to be held in February in San Diego, and was held in Las Vegas in 2013 and 2014; Denver in 2015; and Austin last year in connection with SEER’s Spring Conference. The 2017 conference will also be in connection with SEER’s Spring Conference, which will be March 29-31, 2017, also at the Loews Hollywood Hotel. The conferences are only possible with the help of the remarkable people on our planning committees. Thank you all!


Jeff Kray, Executive Editor of the Committee’s newsletter, continues to work hard on the multiple committee newsletters we will be publishing this year. If you have an article you would like to submit for consideration, please contact Jeff B. Kray at jkray@martenlaw.com.


We always welcome members to become involved in the Committee’s ongoing evolution, especially with respect to program suggestions and contributions to the Committee Newsletter. Contact us at aclark@downeybrand.com, (916) 520-5424, or SNegro@rc.com, (786) 725-4112, with any ideas you have about how the Water Resources Committee or SEER can better serve you, or if you want to be more involved, but aren’t sure how best to contribute or what opportunities would be best for you. We look forward to hearing from you and working together this year!


Andrea Clark and Sorell Negro
2016-2017 Co-Chairs, Water Resources Committee
ABA Section of Environment, Energy, and Resources


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.

WATER RESOURCES COMMITEE WINS RECOGNITION FOR "BEST NEWSLETTER" OF 2015-2016

The Water Resources Committee was awarded a certificate of recognition for "Best Newsletter" of the 2015-2016 bar year!

According to the ABA, the “Best Newsletter” is distinguished by quality and consistency over a sustained period of time. The winning newsletter may also have demonstrated successful innovations in newsletter development, such as collaboration with other committees, involvement of young lawyers or law students, publication of high-profile authors, and production of special topic issues.

Congratulations and thank you to our Newsletter Editor, Jeff Kray, to past-chair, David Johnson, and current co-chairs Sorell Negro and Andrea Clark!


Recent Water Law Cases & Hot News

Recent Water Law Cases

You can visit the archived cases here.

Updated on December 1, 2016

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”).

Hot News

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.

Sixth Circuit Affirms Flint Water Suit’s Remand to State Court – Nov. 27
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.” Read more at: https://www.law360.com/articles/863514/6th-circ-affirms-sending-flint-water-suit-to-state-court

Slovenia Adds Water as Constitutional Right – Nov. 27
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. Read more at http://www.zmescience.com/ecology/slovenia-water-right-22112016/

Pawnee Nation of Oklahoma Sues Federal Agencies Over Oil and Gas Approvals – Nov. 27
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. Read more at: http://yubanet.com/usa/pawnee-nation-of-oklahoma-files-suit-to-p

Pennsylvania Senators Intervene in Fracking Suit – Nov. 27
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: http://www.poconorecord.com/news/20161113/state-senators-file-motion-in-delaware-river-basin-gas-drilling-case

Michigan Lists Lake Erie Watershed As Impaired – Nov. 27
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. Read more at http://www.toledoblade.com/local/2016/11/10/State-of-Michigan-declares-western-Lake-Erie-waters-as-impaired.html

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.
Read more at: http://www.eenews.net.proxy.library.vanderbilt.edu/greenwire/stories/1060045302/search?keyword=water

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.
Read more at: http://www.eenews.net.proxy.library.vanderbilt.edu/greenwire/stories/1060045188

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. Read more at: Greenwire

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. Read more at: The State

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. Read more at: Northern California Record

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. Read more at: The Bellingham Herald

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. Read more at: American Rivers.

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. Read more at: Circle of Blue.

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. Read more here.

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.

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Water Resources - Archive

Modified by Peter Clark on December 1, 2016

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