Westcas 2018 Annual Conference Phoenix AZ October 22
Westcas 2018 Annual Conference Phoenix, AZ, October 22 – 24, 2018 Legal Update by Scott Miller, Esq. miller@waterlaw. com
Overview 1. 2. 3. 4. 5. 6. Circuit Split over CWA liability WOTUS litigation update CA Water Fees - cert denial Nevada Pipeline for Vegas CA public trust applied to groundwater Kids’ Climate Lawsuit
Fourth, Ninth Circuits Split with Sixth on issue of CWA liability • Upstate Forever v. Kinder Morgan Energy Partners LP (4 th Cir. April 12, 2018) ruled that (1) defendant liable under CWA even after “initial cause of the pollution” remedied; and (2) a discharge from a point source through groundwater to navigable waters may support a CWA claim • Hawaii Wildlife Fund v. County of Maui (9 th Cir; Feb 1, ‘ 18). Similar holding to 4 th Cir. – ww disposal wells • Tennessee Clean Water Network, et al v. Tennessee Valley Authority (6 th Cir. September 24, 2018) ruled that CWA only covers “point sources” and therefore discharge to groundwater is not discernible nor discrete enough to trigger CWA liability
Upstate Forever v. Kinder Morgan Energy Partners LP • In Dec 2014, KM Plantation Pipeline leaked more than 369, 000 gallons of gasoline into surrounding groundwater – the plume has now migrated and is seeping into navigable waterways in South Carolina
Upstate Forever v. Kinder Morgan Energy Partners LP • 4 th Circuit found nothing that bars plaintiffs from seeking relief after polluter has repaired the “initial cause of the pollution” and that “a discharge that passes from a point source through ground water to navigable waters may support a claim under the CWA” • “a discharge through groundwater does not always support liability under the Act. Instead, the connection between a point source and the navigable waters must be clear”
Tennessee Clean Water Network, et al v. Tennessee Valley Authority • TVA unlined coal ash storage ponds were leaking into the Cumberland River
Tennessee Clean Water Network, et al v. Tennessee Valley Authority • On appeal, the Sixth Circuit reversed and found that CWA regulates point source pollution, and therefore “excludes the migration of pollutants through groundwater” because such migration is too diffuse to be considered a point source under the Act • Dissenting opinion said a discharger can now escape liability by “moving its drainage pipes a few feet from the river bank”
WOTUS litigation update • Background: Many parties filed suits after 2015 rule – 24 states under court ordered stays (still under pre. Obama rule) as a result of two separate lawsuits • EPA issued “applicability date” rule in Feb 2018, meaning 2015 WOTUS rule would not take effect until 2020 • In August ‘ 18 US District Court in South Carolina effectively reinstated 2015 Rule in the other 26 states by invalidating applicability date rule on procedural grounds
WOTUS litigation update • SC Court ruled that Trump admin did not follow APA notice and comment procedures when promulgating delay rule • Currently a pending challenge that would enjoin the rule in LA, MS, and TX (Prelim Inj now)
CA Wat Rts Fees – SCOTUS cert denial • Group of water rights users v CA Water Resources Control Board – Originally challenged fees in 2004 • State imposed fees to pay for regulatory activities (water suppliers paid 100%) • State law claims – Not a tax, proper proportionate fee because suppliers roughly 90% of costs are attributed to suppliers (and the fees are only 43% of budget) • Federal claims – All fees are reasonable because the suppliers receive everything Bu. Rec has available
Vegas Pipeline denied by NV State Engineer • August ruling rescinded 2007 initial approvals for Southern Nevada Water Authority (SNWA) plan for 250 mi pipeline to Las Vegas • State district court had ordered State Engineer to hold hearings to calculate if there was enough groundwater to support the pipeline project • Opponents claimed the massive pumping project would turn those counties into dust bowls • Project could cost several billion dollars, but is seen as potentially necessary if Vegas keeps growing while Lake Mead keeps shrinking
CA extends public trust doctrine to groundwater • Narrow ruling, but CA Appeals Court held that the public trust duty applies, forcing the consideration of adverse impacts of groundwater extraction tributary to the Scott River • Questions: – 1) Does the public trust doctrine apply to the extraction of groundwater that adversely impacts a navigable water? – 2) Does the SGMA absolve the duty to consider the public trust doctrine in relation to groundwater extractions that impact the Scott River
CA extends public trust doctrine to groundwater • SGMA by itself does not abrogate the public trust duty • Case applied specifically to Scott River – The test, like in Audubon Society, is ethere is potential impact to a public trust resource (in this case, it was agreed that there was potential impact to the Scott River) • Public trust doctrine and SGMA can – and were intended – to “live in harmony” • Narrow ruling, but now possible that public trust can and should be considered for new projects, especially groundwater extraction, if there is potential impacts to a trust resource (navigable water)
Teenagers sue Trump Administration on climate change • Juliana v United States • Kids claim a constitutional right to a safe environment, one that has been violated by federal government neglect. Essentially Pub Trust claims • On October 15, Federal District Court in Oregon denied administration’s plea for a stay which allows the case to go to trial Oct 29 • BUT, Justice Roberts issued Stay on 10/19 to allow Pl’s response on 10/24
Teenagers sue Trump Administration on climate change • The Oct 15 ruling extended previous findings in the case: now, a right to a safe environment can be enforced against federal agencies IF the kids can prove at trial that climate change is the result of government policies
Questions? Scott Miller, Esq. Patrick, Miller & Noto P. C. miller@waterlaw. com (970) 920 -1030
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