On October 3^rd, 2022, the Supreme Court heard the oral argument for the first case of its 2022-2023 term: Sackett v. EPA. The case calls into question the definition of “Waters of the United States” (WOTUS), as it will decide the proper test to determine which wetlands are considered WOTUS, and therefore subject to federal regulation from the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers under the Clean Water Act.

The case originated after Michael and Chantel Sackett purchased an Idaho property near Priest Lake in 2004. After the couple began building a home on the property in 2007, the EPA informed the Sacketts that they must stop construction and apply for a permit since their land contained a wetland that was adjacent to protected waters. Since the wetland is separated from Priest Lake by a road, the Sacketts claimed that their land is not subject to the Clean Water Act’s jurisdiction and sued the EPA. What followed is a legal battle that could potentially change which wetlands are considered WOTUS going forward.

The Clean Water Act was passed in 1972 in an effort to protect waters of the United States from pollution. Since then, the extent of protections provided by the Clean Water Act has been extensively questioned and changed. These changes  have been brought about by  Supreme Court rulings, plurality and concurring opinions of Supreme Court justices, and presidential administrations, especially those of Presidents Obama, Trump and Biden. 

The basis of both the Sacketts’ and EPA’s arguments can be found in the two waters tests proposed in the 2006 Supreme Court case Rapanos v. United States. The Sacketts have relied on the plurality opinion written by late Justice Antonin Scalia to support their case, which argued that wetlands should be considered WOTUS if the adjacent channels contained a “permanent” body of water such as a river, lake, or stream. Additionally, Justice Scalia argued that a wetland can only be considered WOTUS if it featured a “continuous surface connection” with a more permanent body of water.

The EPA is relying on retired Justice Anthony Kennedy’s concurring opinion in that same 2006 case. Justice Kennedy argued that wetlands must include a “significant nexus to navigable waters.” According to this definition, a wetland does not necessarily have to be continuously connected to navigable waters in order to be protected. Instead, the wetland must have a significant effect on the “chemical, physical, and biological integrity of the Nation’s waters.”

In response to  Sackett v. EPA, many agricultural groups have shared their experiences of uncertainty and hardship brought on by the shifting definition of WOTUS over the years. The Family Farm Alliance, along with other agricultural groups, including the USA Rice and National Association of Wheat Growers and the National Corn Growers Association, submitted an amicus (“friend of the court”) brief earlier this year to voice its perspective on the matter. The brief highlights the problems farmers and ranchers have faced due to the lack of clarity regarding the Clean Water Act’s jurisdiction, which has created confusion over whether waters on their property are subject to EPA and U.S. Army Corps of Engineers regulation.

During the October 3^rd oral argument hearing for Sackett v. EPA, Justice Ketanji Brown Jackson questioned the Sacketts’ legal counsel on the  difference between “abutting and neighboring wetlands” if the goal of the Clean Water Act is to protect the nations’ waters “chemical, physical, and biological integrity.” Justice Neil Gorsuch commented on the lack of clarity in the Clean Water Act’s definition of “adjacent,” which Justice Sonia Sotomayor pointed out made some of her colleagues critical of whether the term was “precise enough.” Justice Sotomayor went on to question whether there might be “another test that could be more precise and less open-ended” than the adjacency and significant nexus tests to determine which wetlands are protected. Sackett V. EPA, 21-454 U.S. (2022)  

As of now, Sackett v. EPA is pending adjudication before the Supreme Court. Considering the scope of the case, many expect the upcoming decision to have a significant impact on both environmental interests and the agricultural industry.

To learn more about wetlands and Clean Water Act jurisdiction, check out Schroeder Law Offices’ webinar on Wetlands: Due Diligence for Ditches, Drains and Ponds. 

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The Nevada Division of Environmental Protection (NDEP) seeks public comments to its Draft Water Quality Integrated report. The public comment period for Nevada’s 2020-2022 Draft Water Quality Integrated Report closes on December 31, 2021. On November 22, 2021, NDEP published its Public Notice, inviting comment on the Draft Nevada 2020-2022 Water Quality Integrated Report. The report was prepared in accordance with the Clean Water Act, §§ 303(d), 305(b), and 314. The Clean Water Act requires NDEP to conduct a comprehensive analysis of water quality data associated with Nevada’s surface waters.

The report is a combination of the biennial reporting requirements under the Clean Water Act § 303 on impaired waters, and § 305 for an overall assessment of surface water quality within Nevada and a description of how current conditions provide for the protection of beneficial uses of the state’s waters.  The 2020 and 2022 assessment periods were combined into one report, as is the standard practice in Nevada. Thus, the report covers a data collection period of over seven-years. 

Data on Nevada’s rivers, streams, lakes and reservoirs was collected from October 1, 2013 through September 30, 2020 and was evaluated to determine if State water quality standards are being met and beneficial uses are supported. These periodic reports are used by the public, other entities, and NDEP for water quality management planning purposes.

Impaired Water Reporting Requirements

Under its Clean Water Act § 303 reporting requirements, NDEP has produced a list of waters where current pollution control technologies alone cannot meet the water quality standards set for that water body. The list also contains water bodies that may soon become impaired. Impaired waters are prioritized base on the severity of the pollution and the designated use of the water body (e.g. fish propagation or recreation).  NDEP will also develop total maximum daily loads or TMDLs of pollutants in the impaired water bodies. These TMDLs designate the maximum concentration of each pollutant allowed in the water body and will help guide NDEP water resource management decision in an attempt to improve impaired waters.

Public Comment

The Draft Nevada 2020-2021 Water Quality Integrated Report is available at:

https://ndep.nv.gov/water/rivers-streams-lakes/water-quality-standards/303d-305b-water-quality-integrated-report

Links to the 2016-2018 Water Quality Integrated Report and examples of its public comments can also be found at the link above.

The public comment period for the Draft Nevada 2020-2021 Water Quality Integrated Report closes on December 31, 2021 at 5:00 PM. Any comments should be submitted by mail or email to:

Dave Simpson
Nevada Division of Environmental Protection
Bureau of Water Quality Planning 
901 S. Stewart St.
Carson City, NV 89701
dsimpson@ndep.nv.gov

What’s Next?

Once the report is submitted, Environmental Protection Agency (EPA) must notify NDEP of its approval or disapproval of the § 303 impaired waters list within thirty (30) days. If the list and associated TMDLs are approved, NDEP will incorporate them into its plan.  If they are disapproved, the burden shifts to EPA to identify impaired waters and determine the TMDLs necessary to implement the water quality standards applicable to each water. This must be completed by EPA in thirty days.  After such identification, if necessary, NDEP will then incorporate EPA’s § 303 list into its water quality plan.

The next biennial report will be drafted in 2023 with an opportunity to submit public comment on the draft report prior to submission. Watch for our blog about it here.

(Photo Credit: https://www.visitlaughlin.com/listing/colorado-river/36922/)

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Wetlands delineation and the Clean Water Act have come into focus again.

You may be about to invest in cleaning ditches or drains, or raising or deepening your reservoir or pond. Before you do, participate in this webinar to

• Learn how to identify potential development issues related to Clean Water Act jurisdiction, the agricultural exemption, the agencies involved in making determinations and their legal powers to levy fines.
• Learn why a wetlands delineation maybe required, and the steps a professional consultant undertakes in making wetland determinations.
• Learn what mitigation techniques are available in the event wetlands issues are hindering your activities.

Laura Schroeder and Therese Ure Stix together with Andrea Rabe of Rabe Consulting will present an hour long webinar to address these issues. The Webinar is scheduled for Tuesday, September 14. it will start at noon, pacific time.

You must register in advance here.

This live webinar is the most recent of 21 webinars presented during 2020 and 2021. We have dubbed the current series  the “Vaccine” series in view of our ongoing fight with COVID. You can watch recordings of all 20 previous webinars here.

Visit our site to learn more about Oregon Water Law or Nevada Water Law.

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Senate Bill 1005

Senate Bill 1005 amends existing law to authorize water districts to charge fees to certain water delivery organizations and water users.  This bill clarifies that when water is diverted and assessed in one water district but is conveyed and diverted within a second water district, the second district may level a fee instead of an assessment for the water that is rediverted.  Further, authorized fees that are levied are not considered an assessment and are not part of a water user’s voting credentials for voting within the second water district.

Senate Bill 1005 passed both the Senate and the House.

Senate Bill 1020

Senate Bill 1020 amends existing law regarding the limitation of liability of landowners towards persons entering land for recreational purposes.  The bill amends Idaho Code 36-1604 expanding the definition of land to include water facilities, parks, and campgrounds.  The bill also clarifies the property interest held by an “owner” and that recreational activities include traveling across the land owned by others for the purpose of recreating.

Senate Bill 1020 passed both the Senate and the House.

Senate Bill 1072

Senate Bill 1072 amends existing law regarding filling vacancies in irrigation districts.  The purpose of this bill is to align Idaho Code 43-209 with Idaho Code 43-201(3).  Under Idaho law, irrigation districts are divided into a minimum of three divisions, from which board directors are elected to represent water users.  Idaho Code 43-209 provides the process for filing irrigation district board vacancies, but limits the eligible candidates to living within their respective irrigation district division.  This amendment would allow irrigation districts that approved the expanded board member residency rule under Idaho Code 43-201(3) to fill vacancies under the same conditions therein.

Senate Bill 1072 passed both the Senate and the House.

Senate Bill 1073

Senate Bill 1073 clarifies that the statutory protection of water delivery facilities from claims of adverse possession extends to properties owned by water delivery entities.

Senate Bill 1073 passed both the Senate and the House.

Senate Bill 1079

Senate Bill 1079 establishes a fund for the annual appropriation of state general funds to support and fund nonpoint source agricultural best management practice projects in Idaho.  This appropriation was initially contemplated in the 2017 legislative session and intended to supplement DEQ’s federal nonpoint source program grant.  DEQ identified complications with appropriating, allocating, and disbursing these funds all within the same fiscal year.  The nature of these projects, spanning multiple years or season, and the short time frame in which DEQ has from appropriation to end of spending makes it difficult for recipients of this funding to get the work completed and invoices submitted for reimbursement before the end of the fiscal year in which money was appropriated. Under this legislation, DEQ requests a specific fund be set up for project funds that would allow a longer time frame for the project proponents and awardees to plan and complete projects that benefit Idaho’s waterways.

Senate Bill 1079a passed the Senate on February 25^th and is in its third reading in the House.

Sente Bill 1121

Senate Bill 1121 is a supplemental appropriation bill for the Department of Water Resources.  It requests funds from the General Fund for the Water Management Fund.  Funding would be used for costs related to the Anderson Ranch Reservoir Enlargement Project, the water supply for the Mountain Home Airforce Base, and aquifer recharge projects in the Upper Snake River Valley.

Senate Bill 1121 passed both the Senate and the House and is currently before the Governor for signature.

Senate Bill 1188

Senate Bill 1188 is an original appropriation bill for the DEQ.  Some of the funding will apply to the Lake Coeur d’Alene study, the Water Quality Program, the Agricultural Best Management Practice Fund, and the Water Pollution Control Fund.

Senate Bill 1188 is currently before the Joint Finance-Appropriations Committee.

Senate Bill 1190

Senate Bill 1190 is an original appropriation bill for the Department of Water Resources.  The funding will be used in part for the Bear River Adjudication, the Flood Management Program, and for Water Quality Monitoring.

Senate Bill 1190 is currently before the Joint Finance-Appropriations Committee.

Senate Concurrent Resolution 104

Senate Concurrent Resolution 104 states the Legislature’s findings and supports changes in the winter flood control curves of the Ririe Reservoir project to more properly balance Ririe River water supply and irrigation supplies with adequate flood control.

The Senate unanimously adopted SCR104 on February 18^th.  It is currently in its third reading in the House.

Senate Joint Memorial 103

Senate Joint Memorial 103 states the findings of the Legislature, opposing the removal or breaching of the dams on the Columbia-Snake River System and its tributaries, and recognizing certain benefits provided by the Port of Lewiston.  In the bill, the Idaho Legislature recognizes and supports the international competitiveness, multi-modal transportation, and economic development benefits provided by the Port of Lewiston and the Columbia-Snake River System.  The bill iterates Idaho’s sovereignty over its water resources and the benefits derived from this multiuse system that provides transportation, commodities, fish and wildlife habitat, recreation, hydropower, flood control, and irrigation.

The Senate adopted SJM103 on March 9^th.  It is currently in its third reading in the House.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Don’t miss our blog on the water related House bills this session!  Additionally, each bill page linked above provides the status of the bill and the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

(Image Sources: https://idahonews.com/news/local/idaho-senate-calls-it-quits-but-house-says-not-so-fast; https://www.kmvt.com/2021/01/14/idaho-senate-starts-effort-to-wrest-power-from-gov-little/) 

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The State of the Water Industry Survey

In the June 2020 issue of Opflow, the American Water Works Association published a survey of 3,351 water industry professionals. The State of the Water Industry (SOTWI) survey identifies challenges to the water industry and seeks to understand their causes.

Several issues regarding water resource management made the top ten concerns of the industry professionals surveyed. “Long-term water supply availability” was the third-highest ranked issue on the list at #3, followed closely by “watershed/source water protection” (#5) and “groundwater management and over-use’ (#10).

Water Demand

Specifically, 57 percent of surveyed respondents indicated that their utilities could meet anticipated long-term water demand. However, about 12 percent of respondents claim that it will be challenging to meet future supply needs. This uncertainty creates reverberating effects throughout the industry. Uncertainty affects many other aspects of water resource management and quality, including the other issues mentioned in the survey. Future supply shortfalls will lead to increased price and competition as well as the potential for more frequent litigation over water rights.

Source Water Protection

In addition, source water protection was another critical issue for water resource managers. 76 percent of utility respondents to the survey said that they had implemented or were implementing a source water protection program. When considering only large utility respondents, that share increased to 89 percent. Clearly, utilities focus on strong source water protection programs. These programs are often cost-effective ways to protect and improve both water quality and quantity. Further, states are generally responsible for implementing water quality standards under the Safe Drinking Water and Clean Water Acts for drinking water. Recently, the AWIA, America’s Water Infrastructure Act amended the Safe Drinking Water Act, signed into law in 2018.

Groundwater

Finally, this was the second consecutive year that groundwater issues were front and center in the survey. 2019 California drought and wildfire conditions stressed groundwater resources, bringing those issues to the front of many survey respondents’ minds. Those issues show no signs of abating, as drought and wildfires continue to ravage the West.

In conclusion, many of the challenges highlighted by survey respondents are similar to those faced by water resource managers throughout the years. While there may be some cause for concern in certain areas, overall the survey shows a positive outlook for the future. Utilities are using existing water resources more efficiently as they comply with the AWIA, protect their water sources, and engage in asset management planning. The water industry has poised itself to meet its challenges with resilience.

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

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April 22, 2020 is the 50^th anniversary of the first Earth Day, a global holiday that unites citizens of the Earth to take better care of our planet.

Earth Day was initially proposed by Wisconsin Senator Gaylord Nelson as a way to bring awareness to ongoing ecological issues and concerns. It took place on April 22, 1970 with a series of “teach-ins” on college campuses across America. It then gained national attention and momentum. The first Earth Day inspired the creation of the Environmental Protection Agency (EPA). It also lead to the passage of the Clean Air and Clean Water Acts along with numerous other environmental laws and regulations.

The next Earth Day did not take place until April 22, 1990. Numerous corporations and celebrities endorsed the holiday, and over 200 million people worldwide came together to celebrate. Now Earth Day is an annual event observed around the world. It continues to inspire rallies, cleanup projects, and volunteer efforts. It also provides an opportunity to bring awareness to ongoing and ever-evolving environmental issues like climate change, pollution, and deforestation.

Earth Day is often celebrated outdoors in large groups. Community members gather to perform services such as picking up litter or planting trees. Many others participate in marches or protests about ways we can minimize our impact on the planet and improve global environmental health. However, given the ongoing COVID-19 pandemic and need for social distancing, Earth Day 2020 is a little different. The majority of events are taking place online rather than outside. Still, there are plenty of ways to celebrate. 

While outdoor community gatherings are largely cancelled this year, countless digital resources and events are taking place to make the 50^th anniversary memorable and impactful. Earth Day’s official website has an interactive map with links to events happening virtually all around the United States and the globe. This means you can participate in events in your community, on the other side of the country, or anywhere on the planet!

Of course, April 22^nd isn’t the only day to celebrate the Earth. The National Ocean Service has a list of 10 simple things you can do every day to protect and improve our planet in the short- and long-term. These steps are also laid out in their handy infographic below.

At Schroeder Law Offices, we try to celebrate Earth Day every day. To learn more about what we do and about all things water, check out our Schroeder Law Offices blog!

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The report is a combination of the reporting requirements under the Clean Water Act § 303 on impaired waters, and § 305 for an overall assessment of surface water quality within Nevada and a description of how current conditions provide for the protection of beneficial uses of the state’s waters.

Data on Nevada’s rivers, streams, lakes and reservoirs was collected from October 1, 2009 through September 30, 2016 and was evaluated to determine if State water quality standards are being met and beneficial uses are supported. The report will be used by the public, other entities, and NDEP for water quality management planning purposes.

Impaired Water Reporting Requirements

Under its § 303 reporting requirements, NDEP has produced a list of waters where current pollution control technologies alone cannot meet the water quality standards set for that water body. The list also contains water bodies that may soon become impaired. Impaired waters are prioritized base on the severity of the pollution and the designated use of the water body (e.g. fish propagation or recreation).  NDEP will also develop total maximum daily loads or TMDLs of pollutants in the impaired water bodies. These TMDLs designate the maximum concentration of each pollutants allowed in the water body and will help guide NDEP water resource management decision in an attempt to improve impaired waters.

Last Minute Commenting

The Draft Nevada 2016-2018 Water Quality Integrated Report is available at:

https://ndep.nv.gov/water/rivers-streams-lakes/water-quality-standards/303d-305b-water-quality-integrated-report

Links to the 2014 Water Quality Integrated Report and examples of its public comments can also be found at the link above.

The public comment period for the Draft Nevada 2016-2018 Water Quality Integrated Report closes on January 31, 2020 at 5:00 PM. Any last-minute comments should be submitted by mail or email to:

Dave Simpson
Nevada Division of Environmental Protection
Bureau of Water Quality Planning
901 S. Stewart St.
Carson City, NV 89701
dsimpson@ndep.nv.gov

What’s Next?

Once the report is submitted, Environmental Protection Agency (EPA) must notify NDEP of its approval or disapproval of the § 303 impaired waters list within thirty (30) days. If the list and associated TMDLs are approved, NDEP will incorporate them into its plan.  If they are disapproved, the burden shifts to EPA to identify impaired waters and determine the TMDLs necessary to implement the water quality standards applicable to each water. This must be completed by EPA in thirty days.  After such identification, if necessary, NDEP will then incorporate EPA’s § 303 list into its water quality plan.

The reports required under the Clean Water Act §§ 303 and 305 are performed biennial.  The next report will likely be drafted in 2021 with another opportunity to submit public comments on the Draft prior to its submission.

(Image Source: https://travelnevada.com/discover/26065/truckee-river)

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Last month, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the repeal of the 2015 Waters of the United States (WOTUS) rule. The controversial 2015 rule incorporated changes to 1986 and 1988 regulations and incorporated the “significant nexus” standard articulated by Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S.  715 (2006).  The 2015 change occurred through the addition of the defined term “neighboring” which broadened the interpretation of “adjacent” waters (https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states at 37105).

The 2015 rule was the subject of numerous lawsuits and had been found illegal by five federal courts including: (1) the District Court for the District of North Dakota; (2) the District Court for the Southern District of Georgia; (3) the District Court for the Southern District of Texas; (4) the District Court for the District of Oregon; and (5) the District Court for the District of Ohio. With the repeal of the 2015 rule, EPA and the Army Corps of Engineers will reinstate the 1986 and 1988 regulations in the interim while a new rule is promulgated. These regulations are encompassed in: 33 C.F.R. 328; 40 C.F.R. 110; 40 C.F.R. 112; 40 C.F.R. 116; 40 C.F.R. 117; 40 C.F.R. 122, 40 C.F.R. 230; 40 C.F.R. 232; 40 C.F.R. 300; 40 C.F.R. 302; and 40 C.F.R. 400. 

The EPA and Army Corps of Engineers cited four primarily reasons for repealing the 2015 rule:

1. The rule did not implement the legal limits on the scope of agency authority under the Clean Water Act as intended by Congress and reflected by Supreme Court Cases, including Rapanos;
2. The rule failed to adequately consider and accord due weight to Congressional policy in the Clean Water Act § 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . .of land and water resources.” 33 U.S.C. 125(b);
3. The rule led agencies to interpret the rule in a way that pushed the limits of agency constitutional and statutory authority absent a clear statement from Congress, authorizing the encroachment of federal jurisdiction over traditional State land use planning authority; and
4. The distance-based limitations in the rule suffered procedural errors and lacked adequate support in the record.

With the repeal of the 2015 rule came the filing of lawsuits attacking the constitutionality of the 1986 and 1988 regulations. On the same day as the repeal was announced, the Pacific Legal Foundation filed a Complaint on behalf of the New Mexico Cattle Growers’ Association challenging the reversal and the allegedly even broader interpretation of WOTUS employed under the 1986 and 1988 rules (https://pacificlegal.org/press-release/epa-sued-for-relying-on-illegal-rules-following-wotus-repeal/). The Complaint can be found at: https://pacificlegal.org/wp-content/uploads/2019/10/nm_cattle_growers_v_epa_complaint.pdf.

In contrast, a group of eleven environmental organizations filed a law suit in the Federal District Court for the District of South Carolina challenging the 2015 rule’s repeal based on allegations that it “strips away crucial clean water protections from rivers, lakes, streams, and other waters that feed drinking-water sources for 200 Million Americans” (https://defenders.org/newsroom/conservation-groups-challenge-repeal-of-clean-water-act-protections-federal-court).  In light of these seemingly opposite claims, EPA and the Army Corps of Engineers will certainly suffer attacks from all sides as they attempt to establish a clear and implementable regulatory definition of WOTUS that better effectuates the language, structure, and purpose of the Clean Water Act.  

The repeal of the 2015 rule was published in the Federal Register on October 22, 2019 and can be found at: https://www.govinfo.gov/content/pkg/FR-2019-10-22/pdf/2019-20550.pdf.

(Photo Credit: https://www.tva.gov/Environment/Managing-the-River)

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Starting September 29, 2019, natural gas providers in Oregon will have a new, renewable way of powering their customers’ homes. Governor Kate Brown executed a new law at the end of July, 2019 allowing capture, treatment, and conversion of methane found in wastewater into renewable natural gas (“RNG” or “biogas”), which can then be used to provide power to homes using existing infrastructure.

While converting wastewater to RNG is more expensive than fracking, biogas burns more cleanly than traditionally-obtained natural gas and provides environmental and health benefits by significantly reducing carbon emissions. Additionally, the law requires utility companies to “deliver service as cheaply as possible,” a contingency aimed at preventing a steep increase in price to the consumer.

Lane County, Oregon will begin construction of facilities to produce RNG next year. The biogas will then be sold to public utilities for distribution to their customers as early as 2021. Originally, Lane County planned to use the biogas as an alternative source of fuel for vehicles. Now, the practical potential to use biogas as a renewable resource has expanded.

With the passage of this law, biogas can be used to power homes and businesses. However, RNG has long been used throughout the State of Oregon as a source of renewable energy.

Since 1986, the Columbia Boulevard Wastewater Treatment Plant in Portland, Oregon has used biogas produced and captured at the plant to heat the plant itself, along with a nearby industrial roofing facility. Portland is also developing facilities to convert methane to biogas for use as an alternate source of fuel for diesel engine vehicles. The fuel will be sold to the public and used for City vehicles. Production is expected to begin in early 2020.

Threemile Canyon Farms near Boardman, Oregon started converting cow manure into electricity in 2009, and has expanded its facilities multiple times in the past decade. Currently, the dairy is the largest manure digester in the western United States. In 2017, it announced its plan to begin converting wastewater into RNG. In April, 2019, the Department of Environmental Quality approved Threemile’s application for a modified air quality permit, allowing it to move forward with the project.

The Durham Water Resource Recovery Facility in Washington County, Oregon repurposes wastewater in a variety of ways. The facility has captured phosphorus in wastewater and converted it to fertilizer since 2009. The fertilizer is then sold commercially around the Pacific Northwest. Since 2016, it has also converted wastewater and food grease into electricity that provides 60% of the plant’s power.

In these ways, Oregonians have been meeting Clean Water Act and Clean Air Act requirements through innovations that also provide additional revenue streams. We are excited to continue watching these industries move forward and spread to larger applications.

Stay tuned to Schroeder Law Offices’ blog for updates on these and other projects!

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The Public Trust Doctrine is seeping to California’s aquifers, bringing something like conjunctive surface water and groundwater management to the state. Conjunctive management is a legal approach to managing surface water and groundwater as an interconnected resource. Often states separate the regulation of groundwater from surface water. Conjunctive management attempts to reconnect the regulation of surface water and groundwater to better match real-world hydrological effects.

            Groundwater often supplies water to rivers, called “baseflow” within a “gaining reach,” and pumping can reduce groundwater’s contribution to surface streams. (See https://water.usgs.gov/edu/rivers-contain-groundwater.html). Likewise, surface water recharges aquifers in “losing reaches.” Regulating surface water and groundwater together is a relatively new development in water law, as legal systems catch up to modern scientific understanding. California has never adopted a groundwater code, let alone explicitly adopt conjunctive management.

            The passage of California’s Sustainable Groundwater Management Act in 2014 ushered in new planning and review scheme for groundwater use and management in the State. (https://www.water-law.com/groundwater-sustainability-plan-regulations/ ). The legislation attempts to prevent “undesirable effects” of groundwater overconsumption and bring groundwater use into a sustainable pattern. Cal. Water Code § 10721(x)(1)-(6).

            Regulation of surface water in California has been affected by the Public Trust Doctrine. Nat’l Audubon Soc’y v. Superior Court explicitly recognized that the Public Trust Doctrine would supplement statutes governing surface water. 33 Cal. 3d 419 (1983) (“Audubon”). (The Public Trust Doctrine is a well-established principle in California that the State hold certain resources in trust for the benefit of the public, and must take these principles into account when making natural resource decisions.) The case dealt with diversions from non-navigable streams flowing into Mono Lake that is “navigable” under state law. The Court found support for the application of the Public Trust Doctrine to non-navigable tributaries in previous cases like Audubon, showing that the doctrine can reach upstream to prevent harms to downstream navigable streams and lakes.

            In the recent decision Environmental Law Foundation v. State Water Resources Control Board, California’s Third District Court of Appeals held that the Public Trust Doctrine can apply to groundwater that is hydraulically connected to navigable surface waters, like a “tributary” to the surface stream. 237 Cal. Rptr. 3d 393 (2018) (“Control Board”). (Interestingly, this application of the Public Trust Doctrine implicitly favors surface water over groundwater sources, since the reasoning does not support finding surface water as “tributary” to groundwater sources).

            Until Control Board, the courts did not apply the Public Trust Doctrine to groundwater, likely on the basis that aquifers are non-navigable. The court, using the reasoning found in Audubon, found groundwater extraction in the region near the Scott River would reduce surface flows and harm public trust interests in the navigable river. In effect, the Public Trust Doctrine would extend to any groundwater source that provides water, or has stopped providing water, to a navigable surface water body.

            This follows a trend in applying surface water laws and regulations to groundwater. In Hawaii Wildlife Fund. v. County of Maui, the Ninth Circuit decided that discharges into groundwater could be regulated by the Clean Water Act. 881 F.3d 754 (9th Cir. 2018). Typically, the Clean Water Act does not apply to groundwater. See 80 Fed. Reg. 37054, 37099 (June 29, 2015). But since the aquifer was hydraulically connected to the Pacific Ocean, the aquifer was a “conduit” transporting pollutants to the sea. For more information, see: https://www.water-law.com/ninth-circuit-upholds-groundwater-conduit-theory/. Like the Public Trust Doctrine in Audubon, the Clean Water Act has begun to seep into aquifers as courts attempt to wrestle with modern hydrogeological science.

            Will these rules seep into aquifer pore spaces as well? As discussed in previous blog posts, California courts are currently deciding if aquifer pore spaces are public or private property. (See https://www.water-law.com/who-owns-an-aquifer/). The Control Board decision adds another layer to the aquifer questions in California: Is there a public trust aspect to aquifer pore spaces that potentially hold (or held) groundwater? Or does the doctrine remain confined to the groundwater alone? Keeping the doctrine out of the pore spaces would be difficult, as aquifers are complex systems of transresources. (Transresource systems are interconnected, yet distinct, resources in a dynamic relationship, see https://www.water-law.com/new-associate-attorney-jakob-wiley-defends-collective-aquifer-governance-agreements/.) Scientifically, aquifers and groundwater are in a constant dynamic relationship. The legal question remains open whether aquifer pore spaces are public, like water, or private, like the land and geological materials that make up aquifers.

            As the Public Trust Doctrine sinks into the aquifer, California courts and agencies may face pressure to implement “backdoor conjunctive management” through litigation and planning for Groundwater Sustainability Plans related to the Public Trust Doctrine. Groundwater Sustainability Agencies in California will likely have to take the Public Trust Doctrine into account as they develop and review Groundwater Sustainability Plans and make land use decisions for groundwater development. (See https://californiawaterblog.com/2018/10/07/the-public-trust-and-sgma/ ). While never adopting a groundwater code or conjunctive management regulations, California may then begin to regulate surface water and groundwater as a connected resource.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

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The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“agencies”)  issued a supplemental notice of proposed rulemaking to seek additional comments on the repeal of the 2015 “waters of the United States” rule under the Clean Water Act (“2015 WOTUS Rule”).

In July 2017, the agencies first issued a notice of a proposed rulemaking to repeal the 2015 WOTUS Rule. On February 6, 2018, the agencies published a final rule in the Federal Register adding an applicability date of February 6, 2020 to the 2015 WOTUS Rule, but at that time the agencies did not repeal the 2015 WOTUS Rule. The applicability date of February 6, 2020, makes it such that the pre-2015 regulatory definition of waters of the United States will be in effect until February 6, 2020 or until the 2015 WOTUS Rule is repealed. For additional background, see Schroeder Law Offices blog post, available here.

The agencies issued the supplemental notice to provide the public an opportunity to comment on additional agency considerations to support the repeal of the 2015 WOTUS Rule that were not discussed in the July 2017 notice of proposed rulemaking. The supplemental notice also aims to clarify that the agencies’ July 2017 proposal would completely and permanently repeal the 2015 WOTUS Rule in its entirety, replacing it with the pre-2015 regulatory definition.[1]

The supplemental notice also provides an additional comment period for interested parties to consider new factors and reasoning the agencies recently published as further support for the agencies’ decision to consider repealing the 2015 WOTUS Rule.[2] The additional information and comment period provided by the supplemental notice may also be designed to strengthen the July 2017 rulemaking process as any final rule will inevitably be challenged in a lawsuit.[3]

While the pre-2015 waters of the United States regulatory definition is in effect, the agencies will draft a new regulatory framework to define “waters of the United States.” The agencies will then publish a proposed rulemaking in the Federal Register to adopt a new definition.[4]

The public has 30 days to comment on the supplemental notice of proposed rulemaking. The comment period closes August 13, 2018.

[1] EPA New Release, EPA and Army Seek Additional Public Comment on ‘Waters of the U.S.’ Repeal (June 29, 2018) https://www.epa.gov/newsreleases/epa-and-army-seek-additional-public-comment-waters-us-repeal.

[2] Environmental Protection Agency, Definition of Waters of the United States-Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018) https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15104.

[3] Juan Carlos Rodriguez, EPA, Corps Expand Legal Case Against Obama Water Rule, Law360 (June 29, 2018) available at https://www.law360.com/articles/1059064/epa-corps-expand-legal-case-against-obama-water-rule.

[4] EPA, Waters of the United States (WOTUS) Rulemaking, https://www.epa.gov/wotus-rule/step-two-revise.

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On February 1, 2018, the Ninth Circuit Court of Appeals upheld the “groundwater conduit theory,” whereby a discharge of pollutants into groundwater that is fairly traceable to a navigable surface water is the functional equivalent of a discharge directly into the navigable water body for the purpose of regulation under the Clean Water Act. This argument has been proffered many times in the past, but prior to this case this theory had, at best, narrow and limited success. The full Ninth Circuit case is available here.

The case involved the County of Maui, Hawaii and its wastewater treatment plant. The plant uses four wells as its primary means of disposing effluent into groundwater and the Pacific Ocean. The County injects three to five million gallons of treated wastewater per day into its wells, and, according to the County’s expert, when the County injects 2.8 million gallons of effluent per day, the amount of effluent that reaches the ocean is 3,456 gallons per meter of coastline per day. The Court stated this is “roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline.”

Discharges of pollutants may be authorized by permit under the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). Jurisdiction under the Clean Water Act requires three things: 1) addition of a pollutant 2) to a navigable water 3) from a point source. This case focuses on the third requirement. Clean Water Act cases hold that a point source is a discernible, confined, and discrete conveyance, which in a lot of cases really means a pipe, ditch, or canal.

Wells do not directly connect to navigable water (in this case, the Pacific Ocean). Instead, the water injected into wells must travel through groundwater to reach the ocean. In 2013, the EPA, Army Corps of Engineers, Hawaii Department of Health, and University of Hawaii conducted what is called a “tracer dye study.” Essentially, they put dye into the wells and then monitored the ocean for the dye. At its conclusion, the study found a hydraulic connection between two of the wells and the ocean.

The Ninth Circuit concluded that point source discharges that travel indirectly through groundwater to a navigable water, is a violation of the Clean Water Act if the discharger does not have a permit. The Court reasoned that “this case is about preventing the County from doing indirectly what it cannot do directly.” Since the County could not build a waste pipe that emptied directly into the ocean without a permit, it could do so indirectly through its wells to avoid the requirements of the Clean Water Act. 

There are currently cases before the Fourth and Sixth Circuits which also implicate the groundwater conduit theory. If the holding by the Ninth Circuit is adopted by other Circuits, it will represent a change for the NPDES permitting program and regulation under the Clean Water Act. On the other hand, if a split develops in the Circuits, it may lead to litigation in the United States Supreme Court.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news!

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.

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In 2015, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) issued a joint administrative rule, the “WOTUS Rule,” attempting to define the statutory term “waters of the United States” within the Clean Water Act (“CWA”) in order to more clearly define the agencies’ jurisdiction. Schroeder Law Offices summarized the background and scope of the WOTUS Rule in a 2015 blog. The WOTUS Rule was stayed in 2015. Three year later, and after a ruling from the Supreme Court of the United States, litigation over the WOTUS Rule continues. 

On January 22, 2018, the United States Supreme Court issued its unanimous opinion, written by Justice Sotomayor, which settled the jurisdictional question of where challenges to the WOTUS Rule must be filed. The Court held that challenges to the WOTUS Rule must occur in federal district court rather than courts of appeals. The case was remanded to the Sixth Circuit and dismissed for lack of jurisdiction.

This decision by the Supreme Court will likely prolong litigation on the merits of the WOTUS Rule because a decision by a district court for either party is likely to be appealed. Environmentalists have applauded the proposed changes in the rule, while coalitions like the American Farm Bureau Federation and American Petroleum Institute have said the rule will stifle economic growth and add burdensome regulation on farmers and business owners because of expansion of CWA jurisdiction.

On July 27, 2017 the EPA and Corps published a notice of a new proposed rulemaking in the Federal Register. The agencies proposed to replace the stayed 2015 WOTUS Rule with their pre-2015 regulatory procedure. The agencies solicited public comment on the proposed procedure, although, making clear they did not seek public comment on the substance of the pre-2015 rule.

On February 6, 2018, the agencies published the final rule in the Federal Register. The final rule suspends the applicability of the 2015 WOTUS Rule until February 6, 2020. The agencies assert that the suspension of the rule gives agencies the time needed to reconsider the regulatory definition of “waters of the United States.” As reported by Capital Press, the same day the agencies published their final rule a lawsuit was filed by the Attorneys General of New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia in the Southern District of New York. Another lawsuit was filed by numerous environmental groups in Charleston, South Carolina District Court. Both lawsuits challenge the two-year delay in applicability of the WOTUS Rule.

The attorneys general and environmental groups both take the same positions on two issues in their complaints. First, the parties allege the agencies failed to provide meaningful opportunity for public comment in violation of the Administrative Procedure Act (“APA”) because the agencies solicited comments solely on the procedure of the rule, proscribing comment on the substance of the pre-2015 rule. Second, the parties allege the agencies failed to consider all the relevant issues and offer a rational explanation for the suspension of applicability rule, another alleged violation of the APA.

The attorneys general and environmental groups differ in their last claim, however. The attorneys general claim that the CWA does not give the agencies authority to suspend the WOTUS Rule after its effective date passed. The environmental groups claim the agencies violated the APA by failing to publish the pre-2015 rule in the Code of Federal Regulations.

Stay tuned as Schroeder Law Offices brings you updates!

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.

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After the 1969 oil spill in Santa Barbara, Senator Gaylord Nelson from Wisconsin appealed to the student anti-war movement and worked with them to bring the ideas of air and water pollution to the public consciousness. In 1970, Senator Nelson  was inspired to create Earth Day as he was worried about the rate of the industrialization and the carelessness our society had towards the environment. Joining in the effort to create Earth Day, Congressman Pete McCloskey, a conservation-minded Republican, was the co-chair and Denis Hayes from Harvard was the national coordinator. Hayes was able to build a national staff of 85 to promote events across the country, choosing April 22^nd, 1970 as the date as it fell between Spring Break and Final Exams.

Earth Day 1970 achieved a rare political alignment, enlisting support from Republicans and Democrats, rich and poor, city slickers and farmers, tycoons and labor leaders. Earth Day is celebrated internationally on April 22^nd every year. A common practice is to plant trees as they help the environment, producing oxygen and removing carbon dioxide and other contaminants from the air. Trees also help clean our water by reducing stormwater runoff. It is created when rain falls on the roads, driveways, parking lots, rooftops and other paved surfaced that do not allow water to soak into the ground.  These large volumes of water are swiftly carried to our local streams, lakes, wetlands and rivers, and can cause flooding and erosion, impacting the habitat of critters that live near and in these areas.

Trees and forests improve stream quality and watershed health primarily by decreasing the amount of stormwater runoff and pollutants that reaches our local waters. Trees and forests reduce stormwater runoff by capturing and storing rainfall in the canopy and releasing water into the atmosphere through evapotranspiration (the process by which water is transferred from the land to the atmosphere by evaporation from the soil and other surfaces and by transpiration from plants). In addition, tree roots and leaf debris create soil conditions that promote the infiltration of rainwater into the soil. This helps to replenish our groundwater supply and maintain streamflow during dry periods.

So help our water and celebrate Earth Day by planting a tree!

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The Nevada Division of Environmental Protection (“NDEP”) has been evaluating nonpoint source water pollution, occurring when rain, snowmelt and irrigated water flowing over developed land carries contaminants into Nevada waterways. Accordingly, NDEP implemented a Nonpoint Source Grant Program to provide funding to qualifying state, regional and county agencies, as well as conservation districts and nonprofit agencies. These programs aim to improve water quality, educate the public about nonpoint source pollution and to implement watershed improvement plans.

The NDEP reviewed requests for proposals (“RFP”) during 2016 and has selected 12 projects to award grant funding. The proposed plans will aim to reduce pollution impact from nonpoint sources. The funds originate from a US Environmental Protection Agency grant awarded by the Clean Water Act. Additional grant funding is expected to be awarded through a 2017 RFP process during 2017.

If you would like to learn more about the Grant Program, or to see a list of the projects that have been awarded grants for the 2016 year, please visit http://ndep.nv.gov/bwqp/file/319h_rfp/2016PojectsFunded.pdf.

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The Clean Water Act is an issue of gathering significance with the Environmental Protection Agency and adoption of a newly defined “waters of the United States” (“WOTUS”), wherein civil and criminal penalties can attach if pollutant is discharged into jurisdictional waters. Thus, whether water is defined as “jurisdictional” becomes an important significance. On May 31, 2016, the U.S. Supreme Court issued a ruling in United States Army Corps of Engineers v. Hawkes Co., Inc., et al., regarding Clean Water Act (“CWA”) application and the regulatory jurisdiction of the United States over water resources.

In the lawsuit, three peat mining companies sought a permit from the Army Corps of Engineers to discharge certain material into a wetland. The companies sought a “jurisdictional determination” from the Army Corps of Engineers stating that the property was jurisdictional under the Clean Water Act. Disagreeing with the determination, the companies sought review of the determination under the Administrative Procedure Act, appealing the determination to Federal District Court. The Federal District Court dismissed the matter, holding that a jurisdictional determination is not a “final agency action” allowing the right of an appeal to the Court.

Upon review by the U.S. Supreme Court, the Court overturned the lower court, and found that a jurisdictional determination is in fact a final agency action and judicially reviewable. While this ruling does not affect the current stay of the newly adopted rule governing the definition of WOTUS, it does shed light on procedure and available remedies should water be found to be jurisdictional, where a permit application disagrees.

This decision is overall good news for those seeking to comply under the Clean Water Act, and where the EPA and Corps may overstep their bounds in finding certain water to be jurisdictional. Any determination of jurisdiction is reviewable in Federal Court, where an individual can properly assert and provide evidence that certain water is in fact not jurisdictional. In any event, this decision sparks the beginning of likely a long line of cases pending around the country relating to the CWA’s jurisdictional reach.

For the full text of the case, please visit http://www.supremecourt.gov/opinions/15pdf/15-290_6k37.pdf.

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On June 29, 2015 the Environmental Protection Agency (“EPA”) published a new rule under the Clean Water Act, re-defining “Waters of the United States,” and sought to expand federal jurisdiction over certain water sources. The new rule was set to go into effect on August 28, 2015. Due to the implications and potential effect the rule may have on private and public interests, numerous lawsuits were filed challenging the regulation. Primarily, a lawsuit was filed in the Federal District Court of North Dakota, wherein thirteen states joined the lawsuit seeking to enjoin the rule’s implementation. On August 27, 2015, the North Dakota District Court issued an order granting the request for a preliminary injunction.

The thirteen states involved in the lawsuit include Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. The EPA released a statement stating that “[u]nder the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.” Therefore, until the Court rules on the issue, the EPA considers the injunction a bar to implementation of rule in Nevada, and the other thirteen states involved in the case.

For Nevada Governor Brian Sandoval’s response, please visit http://gov.nv.gov/News-and-Media/Press/2015/Sandoval-Encouraged-by-District-Court-Granting-Nevada_s-Request-for-Injunction/.

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NINTH CIRCUIT UPHOLDS RULING — NPDES PERMITS ARE NOT REQUIRED FOR TRANSFERS OF WATER IN THE KLAMATH BASIN

ONRC Action v. United States Bureau of Reclamation (9th Cir. Or. Aug. 21, 2015)
cdn.ca9.uscourts.gov/datastore/opinions/2015/08/21/12-35831.pdf

The Ninth Circuit Court of Appeals was recently presented with the issue of whether the Bureau of Reclamation violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit. Finding that the waters of the Klamath Straits Drain and Klamath River were not meaningfully distinct, and applying the reasoning from Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, (2013), the court concluded that a Clean Water Act permit was not required.

Background

The original case was filed in 1997 as a citizen’s suit under § 505(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a), commonly referred to as the Clean Water Act. Plaintiff Oregon Natural Resources Council Action (“ONCR”), an environmental group, asserted that the Bureau of Reclamation and its commissioner violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit. The case was stayed for settlement negotiations for years, dismissed, and then reopened on motion. The magistrate judge’s report and recommendation granting the Bureau’s motion for summary judgment were adopted by the district court. The recommendation was based on the conclusion that the Klamath Straits Drain, which connects Lower Klamath Lake and the Klamath River is a water of the United States as defined by the Clean Water Act, and therefore a discharge of water from the Klamath Straits Drain to the Klamath River would be exempt from the Clean Water Act’s permitting system by the EPA’s Water Transfers Rule. The Water Transfers Rule defines water transfers as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.” 40 CFR 122.3(i). Under the Rule, “water transfers” are exempt from the NPDES permitting requirements because the transfers do not result in the addition of a pollutant.

On appeal, ONCR raised the issues of whether the discharge of water from the Klamath Straits Drain and the Klamath River was exempted by the Water Transfers Rule and whether the adoption of the Water Transfers Rule was within the EPA’s authority.

The Ninth Circuit panel neatly sidestepped the issue of the validity of the Water Transfers Rule, relying on the holding in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, __ U.S. __, 133 S. Ct. 710, 184 L. Ed. 2d 547 (2013), which was issued after the district court entered its decision. In the Los Angeles Flood Control Dist., the Supreme Court held that the flow of water from one portion of a river through a concrete channel or other engineered improvement within a river, then back into the river did not constitute a discharge of a pollutant under the Clean Water Act. In summary, the Court held that that “pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the Clean Water Act,” as no pollutants are being “added”. Id. at 711, citing to South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-12 (2004).

In the ONCR case, the Ninth Circuit panel found that the record demonstrated that waters of the Klamath Straits Drain were not meaningfully distinct from those of the Klamath River. In reaching this conclusion it summarized the flow of water through the Klamath Irrigation Project as originating from the Klamath River, then flowing through parts of the Project into Lower Klamath Lake, and then flowing back to the Klamath River via the Klamath Straits Drain. While recognizing that the water was combined with other waters during its journey, including waters from the Lost River Basin, from spring-fed streams, and from runoff, the court concluded that a substantial portion of the water returned to the Klamath River through the Klamath Straits Drain came originally from the Klamath River and was not meaningfully distinct.

Further, despite the excavation and channelization of the previously existing natural waterway, as well as the addition of two pumping stations to ensure the flow of water through the Klamath Straits Drain, the Ninth Circuit viewed the Klamath Straits Drain as essentially an improved version of the previously existing natural water way. The panel relied on the district court’s finding that the Klamath Straits Drain provided a hydrological connection between the lake and river, just as the original Klamath Straits, and that if the headgates and pumps of Klamath Straits Drain were removed, waters would flow between the Klamath River and the Klamath Straits Drain. Because the waters flowing into the Klamath River from the Klamath Straits Drain were not meaningfully distinct from those in Klamath River, the court held that no permit was required under the Clean Water Act.

The validity of the EPA’s Water Transfer Rule has been the source of much litigation, some of which is ongoing. Unfortunately, the Ninth Circuit panel decision did not reach the question of whether the rule adopted by the EPA was properly within its authority and was therefore valid.

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By Laura A. Schroeder and Kendall A. Woodcock

Introduction:

In Nevada, large scale interbasin transfer of water from rural areas is increasingly seen as a solution to the problem of dwindling water supply and steadily rising urban demand.  Whether such interbasin transfers are subject to permit requirements under the federal Clean Water Act (“CWA”) has major implications for the environment and the ability of municipal suppliers to secure additional water supplies.  Because of the vast scale of these projects and the number of competing, yet important, interests at stake, the treatment of interbasin transfers under the CWA is a hotbed of controversy.

Environmentalists’ concern is that terrestrial and aquatic habitats may be destroyed if CWA permitting requirements do not apply to interbasin transfers.  In contrast, water users, particularly municipal suppliers and irrigators, argue that applying the CWA permitting requirements to all interbasin transfers will jeopardize desperately needed water supplies, place an extreme burden on the administrative bureaucracy, and come with an astronomical economic cost.

Unfortunately, the law surrounding the treatment of interbasin transfers under the CWA is in flux, and the uncertainty poses a problem for both environmentalists and water users.   This article seeks to explore the controversial interaction between interbasin transfers and the federal CWA.   Ultimately, this article will propose that state law presents the best means of addressing the parties’ concerns while providing a stable legal framework in the interim.  

Interbasin Transfers: An Overview

An interbasin transfer occurs when water, either surface or groundwater, is moved from the basin of origin to another basin.  A “basin,” (also called a “drainage basin,” “watershed,” or “hydrographic region”) is a geographic area drained by a single major stream. A basin can also be a drainage system area comprised of streams or lakes.  The state of Nevada, for example, is comprised of 14 major “hydrographic basins,” which are further subdivided into 232 “hydrographic areas or sub-areas.”

Many of the interbasin transfers being litigated and discussed in the media involve large scale projects designed to convey water from rural areas to cities for municipal use.  However, interbasin transfers are not necessarily large in scale, nor do they always involve a change in use.

Regardless of their scope and nature, all interbasin transfers raise serious concerns about water quality and the environment.  Removing water from the originating basin may cause water table lowering, instream flows reduction, aquatic habitat degrading, subsidence, and soil erosion.  Additionally, interbasin transfers involve the mixing or co-mingling of diverse water sources.  In other words, any sediments or pollutants present in the originating waters will be transferred to the receiving waters unless regulations dictate water treatment.

The following sections describe the Clean Water Act framework created to address water quality concerns and the application of that framework to interbasin transfers.

The Clean Water Act: An Overview

The CWA was intended to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §1251(a).  Toward that end, the Act makes the “discharge of any pollutant by any person” into “navigable waters” from any “point source” without a National Pollutant Discharge Elimination System (NPDES) permit unlawful. 33 U.S.C. §1311(a)-(e).

The important terms, as defined by the CWA, include:

• “Discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.”
• “Navigable waters” means “the waters of the United States.”
• “Pollutant” means “dredged spoil, solid waste,… chemical wastes, biological materials, radioactive materials, heat,… sand,… and industrial, municipal, and agricultural waste discharged into water.”
• “Point source” means “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container…from which pollutants are or may be discharged.”

See 33 U.S.C. §1362.

To simplify the issues, commentators often break the problem down into its component parts.  For an NPDES permit to be required under the Act, one must establish that there has been (1) an “addition” (2) of a “pollutant” (3) to “navigable waters” (4) from any “point source.”  The following discussion illustrates that the crucial inquiry for interbasin transfers centers on whether the transfer amounts to an “addition” of pollutants.

 Federal Case Law & Regulations: An Uncertain Future for Interbasin Transfers

The Miccosukee Tribe of Indians

In a 2004 case, South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, (“Miccosukee”), the Supreme Court was asked to decide whether an “addition” of a pollutant “from a point source” occurred when a water management district pumped polluted waters from a drainage canal (basin 1) into an undeveloped wetland impoundment area (basin 2).

The South Florida Water Management District (“the District”) argued that it was not subject to the NPDES permit requirements.  First, the District contended that the NPDES program applies to a point source only when a pollutant originates “from” the point source, not when pollutants originating elsewhere merely pass through the point source, as was the case here.  Secondly, the District argued that the canal and wetland impoundment area are not distinct water bodies, but actually hydrologically indistinguishable parts of a single water body, thus there was no “addition” of a pollutant from one body of water to another.

The Supreme Court ruled against the District as to the first argument and remanded the second argument for further factual development.  Specifically, the Court held that the CWA “makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to ‘navigable waters’.”  Miccosukee, 541 U.S. at 105.  The Court cited the CWA’s broad definition of “point source,” concluding that the District’s first argument was “untenable” as it  would exempt municipal waste water treatment plants from regulation under the CWA, when a primary goal of the CWA is to impose NPDES permitting requirements on such waste plants.  Miccosukee, 541 U.S. at 105 (citing 33 U.S.C. §1311(b)(1)(B)).

With regard to the District’s second argument, the Court agreed that an NPDES permit would not be required if the two bodies of water were not “meaningfully distinct,” but found that there was insufficient evidence in the record to make such a determination.  Miccosukee, 541 U.S. at 112.

Before remanding the case, the Court briefly addressed but did not rule on a new argument put forth by the Government as amicus curiae on appeal: the “unitary waters theory.”  This theory suggests that all water bodies falling within the definition of “navigable waters” should viewed as a whole for the purposes of determining whether there has been “any addition of any pollutant to navigable waters from any point source.”  In other words, according to the Government, once a pollutant is present in one part of the “waters of the United States,” the conveyance to a different part is not a “discharge of a pollutant” within the meaning of the Act.  See Brief for the United States as Amicus Curiae Supporting Petitioner at 19,South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004)(No. 02-626), 2003 WL 22137034.

The “unitary waters theory” remains an open question.  Likewise, the question remains as to whether interbasin transfers from one navigable body of water to another trigger the NPDES permit requirements under CWA.  At most, the Court acknowledged evidence for both sides of the theory.

EPA’s Water Transfers Rule

In response to Miccosukee, the EPA adopted a Water Transfers Rule that exempts water transfers, defined as “activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use” from the NPDES permit requirement.  NPDES Water Transfers Rule, 73 Fed. Reg. 33,697, 33,708 (June 13, 2008)(codified at 40 C.F.R. 122.3(i) (2010)).

EPA offered several rationales for the rule.  First, the absence of the word “any” prior to the phrase “navigable waters” in the Act’s definition of “discharge of a pollutant” indicates Congress’ intent that NPDES permits would not be required for pollution caused by the engineered transfer of one “navigable water” to another.  Second, the EPA contends that “Congress intended to leave primary oversight of water transfers to state authorities in cooperation with federal authorities.”  73 Fed. Reg. 33,697, 33,701 (June 13, 2008).  The Government also expressed some concern that municipal supply networks might be put in jeopardy if permits were required for every engineered diversion and expensive treatment works were needed to comply with water quality criteria. See Miccosukee, 541 U.S. at 118.

Immediately after its enactment, the Water Transfers Rule was challenged by several environmental groups.  To date,Friends of the Everglades v. South Florida Water Management District, 570 F.3d 1210 (11th Cir. 2009) is the only case directly addressing the validity of the Water Transfers Rule.  In Friends of the Everglades, the Eleventh Circuit found the statute to be ambiguous, as “waters” can refer to either a single body of water or to several different bodies of water, and upheld the Water Transfers Rule as a reasonable interpretation of the Act under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Friends of the Everglades, 570 F.3d at 1223.

It is not clear, however, that the Eleventh’s Circuit’s interpretation will ultimately prevail.  In 2006, the Second Circuit considered the proposed Water Transfers Rule under very similar circumstances and came to an opposite conclusion. SeeCatskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77 (2d Cir. 2006) (“Catskills II”).

The Court in Catskills II found the language of the CWA plain and unambiguous: an interbasin transfer from a distinct water body resulting in the addition of a pollutant to the receiving water constitutes a discharge subject to NPDES regulation.  Although it was not directly presented with the question, the Second Circuit may have found the final Water Transfers Rule arbitrary and capricious and an impermissible interpretation of the plain language of the Act based on the reasoning set out in Catskills II.

If the federal Courts of Appeal remain split on the issue, the application of NPDES permit requirements to interbasin transfers will have to be settled by the Supreme Court.

Interbasin Transfers in Nevada: What Role for State Law?

In light of the uncertainty, state law may be the only way to provide water suppliers with certainty while addressing environmental concerns. Although Nevada has some provisions in place that specifically address concerns raised by interbasin transfers, there are some holes that should be considered.

For example, in determining whether an application for an interbasin transfer of groundwater must be rejected, the State Engineer is required to consider several factors in addition to those normally considered, including whether the applicant has demonstrated a need for the water, whether the receiving basin has a water conservation plan in place, whether the proposed plan is environmentally sound as it relates to the basin of origin, and whether the proposed transfer will unduly limit the future growth and development in the basin from which the water is exported. NRS 533.370(6).  There are also provisions in place that are designed to alleviate the economic impacts of interbasin transfers by allowing counties to impose fees on the water being transferred, or by allowing for the creation of a mitigation plan between  the county of origin and the applicant.  See NRS 533.438; NRS 533.4385.

Although these protections redress some of the concerns about the impact of interbasin transfers on basin of origin, there are currently no provisions in place addressing potential water quality impacts on the receiving basin.  If the state were to implement additional measures to cover regulation gaps, the cost and impact of interbasin transfers under the federal CWA would be greatly reduced.

Conclusion

Interbasin transfers, controversial though they may be, are here to stay.  Despite how the courts eventually interpret the CWA, an all or nothing approach (NPDES permit or no NPDES permit) doesn’t seem likely to satisfy all the parties.  The challenge is therefore left to Nevada and the other states, who ideally can use the flexibility of state law to address the social, environmental, and economic effects of interbasin transfers in a workable manner.

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Growing opposition to the rule has caused the Environmental Protection Agency (“EPA”) to extend the public comment period through October 20, 2014 from the original comment deadline of July 21.

Opponents and supporters characterize the Revisions to the CWA as either a federal government “land grab” or a clarification of rules depending on point of view.

Opponents generally believe the Rule will give the EPA increased jurisdiction over water adversely affecting farmers and ranchers; while proponents of the change claim the proposal will help eliminate confusion over what types of waters are covered by federal regulations. Texas Attorney General and gubernatorial candidate Greg Abbott submitted comments and threatened to sue if the proposal is not withdrawn. Farm Bureau Federations in Oregon, Nevada, California and nationally are marshaling member support and urging the EPA to Ditch the proposed CWA provisions.

Supporters suggest the proposed rule clarifies issues regarding streams and wetlands.
The article linked here and the photos above demonstrate the varying opinions on the proposed rule change.
Information gathered from a variety of news sources.

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