Letter to WAGLACers:

 

The CWAG Annual Meeting and the WAGLAC Summer Meeting are being rescheduled to ensure the health and safety of our members. The CWAG Annual Meeting will be held July 23 ^rd  through the 26 ^th .  

The WAGLAC Summer Meeting in Bozeman, Montana previously scheduled for June 8th through June 10th is rescheduled for August 10 - 12, 2020. See details below.

 

On behalf of Karen White and CWAG, we hope that you and your families remain safe during these uncertain times. Thank you for your continued support. 

UPCOMING MEETINGS

Will WOTUS Litigation Ever End?

On April 21st, EPA issued a new rule defining the term “waters of the United States” (WOTUS). The ink was barely dry on the new WOTUS definition before a new round of litigation commenced over the scope of EPA’s jurisdiction under the Clean Water Act (CWA). To date, seven lawsuits have been filed challenging the 2020 WOTUS rule and more are sure to follow.

 

Chesapeake Bay Foundation and ShoreRivers filed two lawsuits on April 27th in the U.S. District Court for the District of Maryland challenging the 2019 rule repealing the 2015 WOTUS rule and the 2020 WOTUS rule. They argue the 2020 rule “eliminates federal and, in some cases, state statutory protection for” waters in the Chesapeake Bay watershed. Plaintiffs request that the 2019 repeal rule be vacated and the 2020 rule be enjoined from taking effect.

 

The Conservation Law Foundation and a number of other environmental interests sued EPA and the Corps of Engineers on April 29th in the U.S. District Court of the District of Massachusetts alleging that the proposed rule “adopts an unreasonably narrow interpretation of the Clean Water Act, largely modeled after a plurality opinion in the Supreme Court case Rapanos v. United States, 547 U.S. 715 (2006).” They allege the federal agencies failed to meaningfully consider whether the rule will frustrate the purpose of the CWA and misrepresent scientific evidence and fail to provide a rational basis for their findings. The plaintiffs ask the District Court to vacate the 2020 WOTUS rule. 

 

South Carolina Coastal Conservation League et al. filed a complaint challenging the 2020 WOTUS rule in the United States District Court for the District of South Carolina Charleston Division on April 29th. Plaintiffs argue, “The Replacement Rule is the culmination of the administration’s plan to, first, repeal the 2015 Clean Water Rule’s scientifically drawn “waters of the United States” definition 3 that was based on the Supreme Court’s “significant nexus” test, and, second, replace it with an unprecedented, novel definition that strips away clean water protections that have been in place for more than 40 year.

 

On May 1st, California on behalf of eighteen states, the District of Columbia and the City of New York filed a complaint challenging the 2020 rule in the Federal District Court for the Northern District of California. “In the lawsuit, the coalition argues that EPA’s rule directly conflicts with the text of the Clean Water Act, Supreme Court precedent, and the EPA’s own scientific findings.”

 

New Mexico Cattle Growers’ filed an amended complaint in their pending challenge of EPA’s 2019 repeal and recodify rule on April 27th that adds a new claim challenging portions of EPA’s 2020 WOTUS rule. Unlike the other challenges to the 2020 rule, the Cattle Growers argue the new definition is too broad. They challenge inclusion of non-navigable intermittent tributaries, non-navigable perennial tributaries, lakes, ponds and impoundments and three categories of wetlands in the definition of WOTUS. Oregon cattlemen have filed a similar in complaint.

 

Federal district courts and appellate courts across the nation are grappling with what to do with the numerous challenges to the 2015 WOTUS rule and other cases challenging the 2019 repeal rule. The WOTUS litigation is likely to proceed in the same patchwork fashion as the 2015 WOTUS litigation as a result of the Supreme Court’s 2018 decision in National Association of Manufacturers v. Department of Defense, et al., 138 S.CT. 617 (2018), which held that challenges to WOTUS rules must be filed in federal district court. Consequently, the 2020 challenges to the WOTUS rule are likely to result in yet another trip to the U.S. Supreme Court.

Meet President Trump's Conservative Legal Foes

E&E News

May 1, 2020

The first groups to signal their intent to go to court over the Trump administration's new water permitting and fuel economy standards weren't environmentalists or states led by Democratic attorneys general.

They were property rights and free-market proponents like the Pacific Legal Foundation and Competitive Enterprise Institute, which are suing EPA and other agencies for not going far enough to ease requirements for regulated entities under the Navigable Waters Protection Rule and Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule.

Appeals Court Rejects Bid to Halt Oregon Grazing

E&E News

May 4, 2020

Federal appeals judges on Friday rejected a long-running bid from conservationists to rein in livestock grazing in eastern Oregon because of its impacts on threatened bull trout.

The Oregon Natural Desert Association and the Center for Biological Diversity challenged grazing authorizations from 2006 to 2015 issued by the Forest Service.

They claimed that grazing in the Malheur National Forest was harming bull trout habitat along two rivers: the Malheur and the North Fork Malheur.

A three-judge panel of the 9th U.S. Circuit Court of Appeals, however, rejected their claims, finding that the Forest Service complied with the requisite regulations.

Udall, Heinrich Look to Challenge New Mexica Stream Rule

E&E News

April 28, 2020

"New Mexico Sens. Tom Udall and Martin Heinrich are seeking to weigh in on a legal battle over restrictions on public access to rivers and streams that cross private property in their home state.

In a motion filed yesterday in the state Supreme Court, the Democratic lawmakers asked to file an amicus brief in Adobe Whitewater Club of New Mexico, et al., v. Honorable Michelle Lujan Grisham, et al.

The lawsuit, brought by the Adobe Whitewater Club, the New Mexico Wildlife Federation and the New Mexico chapter of Backcountry Hunters & Anglers, challenges a 2018 rule issued by the state's game commission."

Santa Maria Reservoir Co. v. Warner

Justia

"Santa Maria Reservoir Company (“SMRC” or the “Company”) was a mutual reservoir company responsible for storing and releasing water to its shareholders, who owned the right to use that water. SMRC’s water was stored in its two reservoirs: the Santa Maria Reservoir and the Continental Reservoir. SMRC was contacted about leasing water from SMRC’s shareholders to replace depletions to the Rio Grande. In May 2013, the Division Engineer submitted a written report in which he recommended “that th[e] requested change of water right be granted” with one condition: “that such change . . . not expand the consumption of the water right beyond that which has been the historical practice for agricultural purposes.” SMRC met with various opposers to explore what terms and conditions might assuage their concerns. Based on their input, it drafted a proposed decree in which it agreed to replicate accretions (including return flows) to the Rio Grande to prevent injury to other water rights diverting from the Rio Grande. By April 2016, all opposers except appellant Jim Warner had stipulated to the entry of SMRC’s proposed decree. Warner’s opposition was premised on his concern that SMRC’s application, if granted, would interfere with his downstream surface and groundwater rights. Warner, a rancher, owned two parcels of land on which he grew hay for his livestock using flood irrigation. His properties were located in the Closed Basin, generally east and north of land that received the water SMRC delivered through the Rio Grande Canal. Because he flood irrigated, Warner needed the groundwater beneath his lands to stay at a level close enough to the surface to reduce ditch losses and allow water to carry further across his crop land. After review of the water rights at issue and proposed uses, the Colorado Supreme Court concluded Warner was not injured by the water court’s approval of the change-of-use application submitted by SMRC with respect to the water it diverted from the Rio Grande into the Closed Basin. "Because that water is imported water, SMRC is entitled to fully consume all of it. The water would not be in the Closed Basin, much less available for use by Warner and other water users in the Closed Basin, without its importation by SMRC. Thus, rather than cause an injury to Warner, the approval of SMRC’s application simply revealed to him that his past use of return flows from SMRC’s imported water in the Closed Basin was a benefit to which he had no enforceable right; Warner just didn’t know what he had ‘til it was gone."

California Water War Heats Up

The Central Valley Project and the State Water Project are the two largest water projects in California. The Central Valley Project is operated by the federal government and consists of 20 dams and reservoirs that deliver water to 29 of California’s 58 counties for agricultural, municipal, and industrial uses in the Central Valley and the San Francisco Bay Area. The California Department of Water Resources (CDWR) operates the State Water Project. The State Water Project’s storage facilities include the Oroville Dam and San Luis, which CDWR and the US Bureau of Reclamation jointly operate. The State Water Project delivers water to the Feather River Area, North Bay Area, South Bay Area, San Joaquin Valley, Central Coast, and Southern California for agricultural, municipal, and industrial uses. Since 1986, CDWR and the Bureau of Reclamation have coordinated the operation of the two projects to meet water quality and environmental flow obligations. Since 2016 the CDWR and Reclamation have been working to revise the joint operation plan to reflect water quality regulations, biological opinions with tightened environmental restrictions, and updated hydrology.

On October 21, 2019, the National Marine Fisheries Service and the U.S. Fish and Wildlife Services issued revised ESA biological opinions for the operation of the Central Valley Project. Last week, California Attorney General Xavier Becerra, filed an amended complaint in response to the Trump Administration's proposal to increase delivery of water to the Central Valley Project in accordance with revised biological opinions, alleging that the operation of the Central Valley Project will cause imminent and irreparable harm to species protected under the California Endangered Species Act [CESA] and the federal Endangered Species Act.

“The governor and attorney general just launched a ship into a sea of unpredictable administrative and legal challenges regarding the most complex water operations in the country, something they have not chartered before,” said Secretary of Interior David Barnhardt in response to California’s amended complaint and request for a preliminary injunction. “Litigation can lead to unpredictable twists and turns that can create significant challenges for the people of California who depend on the sound operation of these two important water projects.”

Last week, as reported by E&E News, the conflict escalated when a group of state water contractors sued California “over endangered species protections they claim threaten their ability to provide water to more than 25 million residents and thousands of acres of farmland.” The plaintiffs' complaint alleges the California Department of Fish and Wildlife’s (CDFW) incidental take permit violates the California Endangered Species Act. “Approval of the permit ‘has left us with no other choice than to file litigation that could and should have been avoided,’ said Jennifer Pierre, general manager of the State Water Contractors, which represents the project's customers.” Meanwhile, Environmental law groups sued California alleging CDFW is not doing enough to protect the listed species.

In addition to the new lawsuits, there has been a flurry of political activity regarding the standoff between the Department of Interior and the State. This is just the beginning of what is likely to be a lengthy legal battle.

Judge Rejects Army Corps' Bid to Resume Permitting

E&E News

April 30, 2020

"A federal court this week declined to immediately halt an order blocking the Army Corps of Engineers from authorizing national water permits for power line and pipeline projects that cross federally protected waters.

Chief Judge Brian Morris for the U.S. District Court for the District of Montana said Tuesday that he would not issue an administrative stay to his order blocking the Army Corps' Nationwide Permit 12 program, pending consultation with other federal agencies under the Endangered Species Act.

The order stemmed from litigation over the controversial Keystone XL pipeline. Instead of only tossing the national permit for the oil pipeline's water crossings, Morris faulted the agency for failing to conduct ESA consultation before reauthorizing the five-year program in 2017 and barred all use of the permit for project approvals."

Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month

Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook  is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook  addresses the areas of Indian law most relevant to the practitioner.

Topics include:

Western Attorneys General Litigation Action Committee

CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.

Contributions For WAGLAC Newsletter

We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute or article relating to natural resources, environment, Indian law or federalism that you would like us to consider for inclusion in the Newsletter, please send it to Clive Strong. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.