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Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Category Archives: Water Law

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Trump Track: WOTUS Wrangle

Posted in Trump Track, Water Law
We have strange bedfellows, as business groups, states and environmentalists maneuver before the Supreme Court over the Obama Administration regulation defining “waters of the US” (“WOTUS”) under the Clean Water Act (CWA). Organizations supporting and opposing the rule all argue that the Court should overrule the decision of the Sixth Circuit Court of Appeals holding… Continue Reading

A Win for Appropriative Water Rights

Posted in NEPA, Water Law
In an unpublished opinion released August 24th, the Ninth Circuit rejected a long waged effort to upend the City of Bend’s water planning by forcing it to abandon its vested surface water rights in favor of an all-groundwater supply. As is often the case, plaintiffs chose a somewhat oblique attack on the City’s water planning,… Continue Reading

WOTUS, We Hardly Knew Ye

Posted in Water Law
With a flourish of his pen, on February 28 President Trump signed an Executive Order aimed at dismantling the ill-fated Waters of the United States (WOTUS) rule.  The rule was the latest attempt by EPA and the Army Corps of Engineers to bring some clarity to the limits of federal authority under the Clean Water Act. … Continue Reading

On Remand from Supreme Court, Hawkes Wins Challenge to Army Corps’ Wetland Determination

Posted in Federal, Water Law
As described on this site  last year, the Supreme Court first affirmed the right to challenge wetlands jurisdictional determinations by the Army Corps of Engineers.  On remand, plaintiff Hawkes Company, a peat mining company in Minnesota, defeated the Corps’ wetland determination.  In granting summary judgment  to Hawkes, the district court applied the “significant nexus” test… Continue Reading

Senate Approves $4.9 Billion for Drinking Water

Posted in Federal, Water Law
Congress in recent years has not really been in the business of solving core public welfare problems like safe drinking water.  Today the Senate, however, has taken a major step forward by passing the 2016 Water Resources and Development Act, S. 2848.  WRDA bills are the annual appropriations bills to shore up the nation’s water… Continue Reading

State Water Board Cleans Up Its Water Quality Enforcement Policy

Posted in California, Rulemakings, Water Law
 On August 4, 2016, the California State Water Resources Board (State Water Board) issued a draft rule amending its 2010 Water Quality Enforcement Policy. The proposed amendments are intended to provide additional clarity, allow disadvantaged communities to receive assistance with compliance matters akin to that provided under the current policy to facilities serving small communities,… Continue Reading

Whither WOTUS?

Posted in EPA, Federal, Water Law
In June 2015, EPA and the Corps of Engineers released a rule to define “waters of the United States,” affectionately referred to as WOTUS.  This definition goes to the scope of federal jurisdiction over wetlands and other waters that are not obviously free flowing and navigable.  An in-depth analysis of the rule can be found… Continue Reading

Unanimous Support for Conservation in Senate Appropriations Committee

Posted in Environmental Quality, Rulemakings, Water Law
Who knew?  On May 19 those wild eyed environmentalists on the Senate Appropriations Committee unanimously (no misprint) passed a FY 2017 agriculture and rural development bill that includes significant funding for conservation work.  The bill now goes to the full Senate for a vote, and if it passes, back to the House for reconciliation.… Continue Reading

The Supreme Court Confirms Right to Challenge Jurisdictional Determinations

Posted in Federal, Water Law
Can a landowner challenge a US Army Corps of Engineers determination that a property contains jurisdictional wetlands? In a unanimous opinion, the Supreme Court answered this question in the affirmative May 31, 2016 in USACE v Hawkes Co. Under Section 404 of the Clean Water Act, the Corps regulates filling in of “waters of the… Continue Reading

Curiouser and Curiouser: Sixth Circuit Not Sure of Jurisdiction but Stays WOTUS Rule Anyway

Posted in EPA, Rulemakings, Water Law
Does this make sense to you?  Eighteen states petitioned the Sixth Circuit to challenge the new rule adopted by EPA and the Corps of Engineers defining “waters of the United States” under the Clean Water Act.  Then the petitioners move the court to dismiss their own petition for lack of subject matter jurisdiction, but at… Continue Reading

July 1 Deadline for General Industrial Stormwater Permits in California

Posted in California, Rulemakings, Water Law
Beginning July 1 of this year, there’s a new program in town!  A new general industrial stormwater permit kicks in in California. Companies with an existing stormwater permit will have to apply for a new permit, and prepare a new management plan—there is no grace period. Link to General Permit For Storm Water Discharges Associated… Continue Reading

California State Water Resources Control Board Finalizes Rules for Desalination Plants

Posted in California, Natural Resources, Rulemakings, Water Law
As the drought continues across California, the State Water Resources Control Board (“SWRCB”) has adopted its first-ever requirements for desalination plants in the state. Desalination – a process of removing minerals from ocean water to produce fresh water for municipal uses – has not been widely used in California because it is expensive, energy-intensive, and… Continue Reading

Pacific Northwest Water Wars

Posted in Northwest, Water Law
It may come as a surprise that people fight over water in soggy Oregon and Washington.  To be sure, we have not experienced the same level of conflict over competing water needs as our neighbors in the southwest, but in fact the conflicts are there and the stakes are high. Most senior water rights in… Continue Reading

State of Alaska Continues Slow Progress in Adjudicating Instream Flow Water Rights

Posted in Northwest, Water Law
The State of Alaska’s Department of Natural Resources (DNR) continued its slow and steady progress to issue the first instream flow water right to a non-governmental organization with a February 18, 2015 notice requesting comments on an instream flow water right application by the Chuitna Citizens Coalition Inc. (Chuitna). Parties wishing to comment on the… Continue Reading

Science Advisory Board Finally Weighs In on Waters of the U.S.

Posted in EPA, Rulemakings, Water Law
The Science Advisory Board has at last released its peer review  of EPA’s draft report on Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis, the technical support for the proposed rule on definition of “waters of the United States” under the Clean Water Act.  The SAB paper is generally supportive of EPA’s… Continue Reading

California Groundwater Regulation Enters the 20th Century!

Posted in California, Water Law
On September 16, 2014, California Governor Jerry Brown signed into law a trio of bills to establish a statewide regulatory scheme for the use of groundwater: Assembly Bill 1739, and Senate Bills 1168 and 1319.  California had previously been the only Western state to leave “reasonable” use of groundwater to the tender mercies of individual pumpers… Continue Reading

ECOS Releases “Waters of the U.S.” Paper

Posted in EPA, Federal, Water Law
On September 15, the Environmental Council of the States (ECOS) released a paper produced by the American College of Environmental Lawyers (ACOEL) on the new “waters of the U.S.” rules proposed by EPA and the Army Corps of Engineers.  The new rules are intended to bring clarity as to the jurisdictional reach of the federal government… Continue Reading

Alaska Department of Natural Resources Seeks Comment on Precedent-Setting Instream Flow Water Right

Posted in Water Law
Instream flow rights can be controversial among consumptive water users because they decrease the legally available supply of water for other uses that may arise in the future.  Conversely, instream flow rights are often championed by non-governmental and other entities seeking to protect environmental values supported by maintaining specific water levels in a given waterbody. … Continue Reading

Federal Agencies Extend Public Comment on Proposed Clean Water Act Rules

Posted in EPA, Federal, Water Law
Responding to numerous requests from stakeholders, the Army Corps of Engineers and the Environmental Protection Agency will be accepting public comments for an additional three months on the agencies’ proposed definition of the scope of federal jurisdiction over the nation’s water bodies. The new deadline for public comments is October 20, 2014.  For more information… Continue Reading