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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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Three Circuits Set Up CWA Application to Groundwater for Supreme Court Test

Posted in Water Law
There have been five circuit court decisions in 2018 addressing the application of the Clean Water Act (CWA) to discharges reaching navigable waters through groundwater. The year started with a decision by the Ninth Circuit which, addressing discharges through groundwater from an injection well, held that where there was a direct hydraulic connection between the… Continue Reading

California Court Holds Public Trust Doctrine Applies to Groundwater Impacts on Surface Streams

Posted in California, Water Law
In Environmental Law Foundation v. State Water Resources Control Board, the California Court of Appeal for the Third District on August 29, 2018 affirmed a district court’s application of the Public Trust Doctrine to the impact of groundwater wells on the Scott River in Siskiyou County. The case has far-reaching implications for groundwater use in… Continue Reading

Fourth Circuit Limits Impact of CWA Groundwater Decision

Posted in Water Law
In Sierra Club v. Virginia Electric & Power Company (“VEPCO”), the Fourth Circuit Court of Appeals affirmed in part and reversed in part a district court decision finding VEPCO liable for unpermitted discharges to navigable waters through groundwater from a coal ash landfill and settling ponds. VEPCO had not challenged the lower court’s finding that… Continue Reading

Trump Track: What is Behind the Administration’s Failed Attempts at Delaying Rules?

Posted in EPA, Trump Track, Water Law
On August 17, the day after a federal judge in South Carolina invalidated the Trump administration’s suspension of the rule defining “waters of the United States” (WOTUS) under the Clean Water Act, a panel on the D.C. Circuit invalidated an effort by the administration to extend by 20 months the effective date of the Chemical… Continue Reading

Trump Track: WOTUS Lives! . . . at Least in Half the States (for Now)

Posted in Environmental Quality, EPA, Trump Track, Water Law
On August 16, a federal judge in South Carolina invalidated the Trump Administration’s suspension of the rule defining “waters of the United States” (WOTUS), under the Clean Water Act. In South Carolina Coastal Conservation League v. Pruitt, the court found that the notice-and-comment opportunity supporting the Suspension Rule was too narrow and thus violated the… Continue Reading

D.C. Circuit Sinks FERC Hydro License for Failure to Adequately Consider Past Environmental Harm

Posted in Electric Power, FERC, Natural Resources, Renewables, Water Law
Last Friday, the D.C. Circuit torpedoed a hydroelectric license issued in 2013 to Alabama Power Company because the Federal Energy Regulatory Commission (FERC) and the U.S. Fish and Wildlife Service (USFWS) “declined to factor in the decades of environmental damage already wrought by exploitation of the waterway for power generation and that damage’s continuing ecological… Continue Reading

Weighing the Costs and Risks of Litigation

Posted in Water Law
Citgo Petroleum received a Valentine’s gift of sorts from the Fifth Circuit Court of Appeals on February 14, in United States v. Citgo Petroleum Corporation. The Court affirmed an $81MM civil penalty assessed by the district court for a spill at the company’s Louisiana facility.  The “gift” was the Court’s determination that the lower court… Continue Reading

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