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Water Resources


Recent Water Law Cases & Hot News




Recent Water Law Cases

You can visit the archived cases here.

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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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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. 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.


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


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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    Water Resources - Archive

    Modified by Romeo Talento on September 17, 2014

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