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$8 Billion Chilean Hydropower Project Revoked - July 27, 2014
In June, a ministerial committee declared the $8 billion HidroAysen hydropower project in Chile unfeasible as is and cancelled the project's permit. The project involves the construction of 5 dams on 2 rivers in Patagonia, but has been hotly contested by environmentalists. The committee concluded that the project failed to adequately consider environmental damage or impacts on people who would be displaced by the project. The two companies collaborating on this project are considering revising their proposal or abandoning their plans.
Settlement Reached in W. Va. Chemical Spill Case - July 27, 2014
On July 18, 2014, a putative class of almost 400,000 members reached a settlement with the company allegedly responsible for the January 2014 chemical spill into the Elk River that contaminated the water supply of 300,000 West Virginia residents. Freedom Industries, Inc. will transfer $2.9 million into a trust fund to be used for the interests of the general welfare including chemical testing and medical studies. On Jan. 9, 2014, over 7,000 gallons of 4-methylcyclohexane methanol (MCHM) leaked into the Elk River from one of the company's storage tanks.
Fifth Circuit Reverses Whooping Crane Decision and Finds No ESA Violation - July 6, 2014
On June 30, 2014, the Fifth Circuit Court of Appeals reversed a lower court decision that Texas had violated the Endangered Species Act (ESA) by failing to ensure that adequate supplies of freshwater flowed into the river serving the whooping cranes' habitat, thereby "taking" whooping cranes, a protected species under the ESA. The Fifth Circuit held that the district court failed to follow the foreseeability and proximate cause requirements for ESA liability as established by the U.S. Supreme Court, and the connection between the state's permitting actions and the whooping cranes was too remote to establish liability. The Fifth Circuit also overturned the lower court's injunction - which had ordered state officials to refrain from approving or granting new water permits until the State of Texas persuaded the court that the permits would not take whooping cranes in violation of the ESA - as an abuse of discretion. Aransas v. Shaw, No. 13-40317 (5th Cir. June 30, 2014).
Pres. Obama Signs Bill to Fight Algal Blooms in Great Lakes - July 6, 2014
On June 30, 2014, President Obama signed the Harmful Algal Bloom and Hypoxia Research and Control Amendments Act, which focuses on ending harmful algal blooms in the Great Lakes. The legislation, S. 1254, authorizes $20.5 million a year for five years, calls for a federal task force to create a plan to address harmful algal blooms in the Great Lakes, and funds research to develop better ways to fight the algal blooms.
New Report on Everglades Restoration Plan Finds More Planning than Implementation - July 6, 2014
On June 27, 2014, the National Research Council issued a new report to Congress on the status of the Comprehensive Everglades Restoration Plan (CERP), a multibillion dollar effort launched in 2000 to protect and rehabilitate the Everglades ecosystem and South Florida's water system. The report concluded that progress has been made over the last two years in terms of planning, but project implementation has been impeded by financial, procedural, and policy constraints, and restoration work has been modest to date. For more information, click here.
New Plan Announced to Deal with Asian Carp in Great Lakes - June 29, 2014
The Asian Carp Regional Coordinating Committee has announced a new plan to deal with an invasive species of Asian carp in the Great Lakes. The plan includes a $24 million electric barrier in the Chicago Area Waterway System (CAWS), and a physical barrier separating the Great Lakes from the Mississippi River near Fort Wayne, Indiana. The updated Monitoring and Response Plan will focus on monitoring and removing the fish that end up downstream of the Electric Barrier System in the CAWS as well as in the upper Illinois Waterway. The plan aims to prevent the carp from forming self-sustaining populations in the Great Lakes. The Asian carp were introduced into the US over three decades ago to control algal build-up in sewage treatment plants, but then escaped to the Mississippi River and then to the Great Lakes. Read more here.
Texas Water Development Board Proposes New Rules for Water Supply Projects - June 29, 2014
The Texas Water Development Board released draft rules for funding major future water supply projects. The draft rules set forth guidelines for a point system by which the board will rank projects applying for an initial pool of $2 billion in funding, which was approved by Texas voters in November 2013. The rules consider legislative mandates to set aside 10 percent of funds for rural projects and 20 percent for conservation and reuse projects are considered “a floor and not a ceiling.” The board is holding public hearings and will accept public comments until Sept. 1, 2014.
US Supreme Court Holds that CERCLA Does Not Preempt State Statutes of Repose - June 12, 2014
On June 9, 2014, the U.S. Supreme Court held that CERCLA does not preempt state statutes of repose. CTS Corp. v. Waldburger, No. 13-339, is available here. Section 9658 of CERCLA provides a "federally required commencement date" for state law tort claims for personal injury or property damage from hazardous substances, starting when the plaintiff discovered, or reasonably should have discovered, that the harm was caused by the hazardous substance. Instead, the Court held that Section 9658 only preempts state statutes of limitations. The decision precludes respondents' claim for damages for well water contamination discovered in 2009, which was brought more than 10 years after the last culpable act of CTS Corp. and is, therefore, precluded by North Carolina's statute of repose.
Vermont AG Sues Oil Companies for MTBE Contamination - June 6, 2014
On June 5, 2014, Vermont's Attorney General, William Sorrell, sued two dozen refiners for groundwater contamination by methyl tertiary-butyl ether (MTBE), a gasoline additive. The defendants include BP, Chevron Corp., and Exxon Mobil Corp., and are alleged to have promoted, marketed, and distributed MTBE knowing that it posed risks to groundwater. This suit joins the many other claims across the country against refiners as well as retailers and distributors over MTBE. The case is State of Vermont v. Atlantic Richfield Co., Vermont Superior Court, Washington County (Montpelier).
Farmers Insurance Drops Novel Class Action Suits Against Illinois Municipalities - June 6, 2014
Farmers Insurance Co. is dismissing its class action suits in Illinois federal and state courts against Illinois municipalities for failing to take steps to prepare for climate change, resulting in property and economic damages incurred by its policyholders following significant rain storms in April 2013. Farmers had claimed that the municipalities failed to address known problems with their stormwater and sewer systems. In these subrogation suits, Farmers was stepping into the shoes of its policyholders. This unprecedented climate change litigation had received widespread attention from the media and legal community.
Fifth Circuit Holds BP Can Be Liable Under Clean Water Act for Deepwater Horizon Spill - June 6, 2014
On June 4, 2014, the Fifth Circuit affirmed a lower court's ruling that BP and Andarko Petroleum Corp. can be held liable under the Clean Water Act in connection with the Deepwater Horizon pollution incident. The ruling subjects the companies, owners of the Macondo Well that blew out in 2010, to potentially billions of dolalrs in fines under the CWA. The decision is available here. The court scheduled a trial for January 2015 on the amount of penalties owed.
Ninth Circuit Affirms Dismissal of Challenge to Plan Transferring Water from Farms to Cities in Southern California - May 20, 2014
On May 19, 2014, the Ninth Circuit affirmed the lower court's dismissal of the suit brough by Imperial County, California, against the U.S. Department of the Interior challenging a landmark accord transferring water from the Colorado River from farms to cities in San Diego County. The court ruled that the water distribution plan did not violate federal environmental law. The government had followed requirements set forth in NEPA and the Clean Air Act when it analyzed the impact of the new water distribution plan. The case is People of the State of California ex rel. Imperial County Air Pollution Control District v. U.S. Department of the Interior et al. (No. 12-55856).
EPA Finalizes Cooling Water Intake Rule - May 20, 2014
On May 19, 2014, EPA finally finalized its cooling water intake rule, which applies to over 1,000 power plants and factories that pull in at least 2 million gallons of water daily in order to power their cooling systems. Sucking in this water, however, can also pull in large numbers of fish, shellfish, and their eggs, damaging or killing the organisms. Section 316(b) of the Clean Water Act requires EPA to issue regulations on the design and operation of intake structures, in order to minimize adverse environmental impacts. The rule is available here.
Recent Water Law Cases
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City of Dover v. U.S. E.P.A., (D.D.C.2013)
by John Famiglietti
Plaintiffs, the Cities of Dover, Rochester, and Portsmouth, all of which are in New Hampshire, brought suit against the U.S. Environmental Protection Agency (“EPA”) pursuant to the Clean Water Act's ("CWA") § 505(a)(2) citizen suit provision, alleging that the EPA failed to perform a nondiscretionary duty under the CWA when it failed to review a state proposal (“2009 Document”) suggesting certain nutrient levels for the Great Bay Estuary. City of Dover v. U.S. E.P.A., 956 F. Supp. 2d 272 (D.D.C. 2013). Read more.
Steuve Brothers Farms, LLC v. United States, 737 F.3d 750 (Fed. Cir. 2013)
by Marc J. Herman
Southern California provided the backdrop as the federal government scored an important victory in the classic standoff between private property rights and governmental action. Stueve Bros. Farms, LLC v. United States, 737 F.3d 750 (Fed. Cir. 2013). Siding with the government, the U.S. Court of Appeals for the Federal Circuit firmly distinguished between fiction and reality. Read more.
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.