Supreme Court Delivers a Muddy Decision on Clean Water Act Jurisdiction

June 20, 2006

FOR IMMEDIATE RELEASE

Contact: Melinda Kassen, 303-579-5453
Steve Moyer, 703-284-9406

Supreme Court Delivers a Muddy Decision on Clean Water Act Jurisdiction

Arlington, Va. – Yesterday the U.S. Supreme Court rendered a confusing decision that may expose thousands of miles of streams to harmful activities. The Court reversed a lower court ruling that was supported by most states, conservationists and the Bush Administration.

“The Supreme Court did not change the law, did not provide any clear guidance and did not resolve any issues,” said Melinda Kassen, Director of Trout Unlimited’s (TU) Western Water Project. “The only certainty is that this will be back to the Court unless Congress acts.”

The Supreme Court considered the level of protection afforded to streams and wetlands under the Clean Water Act. The Court addressed two Michigan cases, Carabell v. United States and United States v. Rapanos, both of which involved developers wanting to fill in wetlands adjacent to small tributaries that flow into larger water bodies.

Four justices issued a plurality opinion that would significantly narrow the scope of the Clean Water Act to protect only permanently flowing lakes, rivers and streams, and wetlands with continual surface flows. Four other Justices dissented and voted to uphold the Appeals Court decision, which was based on a broad, protective regulation that the federal government has used for 30 years.

Justice Kennedy wrote separately. He disagreed with most of the plurality’s key points, but still voted to return the case to the lower court. Kennedy argued that the Clean Water Act protects all wetlands and smaller streams with a “significant nexus” to larger, navigable rivers. Justice Kennedy voted to return the case to the Court of Appeals to consider whether a “significant nexus” existed. Thus, a 5 Justice majority voted to send the case back, and that will now happen.

“The very goals of the Clean Water Act, to maintain and restore the chemical, physical and biological integrity of the Nation’s waters, require broad protection under the law for the nations streams, rivers, lakes and wetlands,” said Kassen. “The plurality decision indicates a fundamental misunderstanding of the importance of small streams and wetlands, especially in the drier parts of the country.”

The plurality interpretation, if adopted by federal agencies and lower courts, could result in an alarming degradation of water quality and fish habitat. In Colorado, for example, only 28,000 of the state’s 107,000 miles of streams are perennial, meaning that the vast majority don’t contain water all year around and could be dropped from Clean Water Act protection.

Steve Moyer, the Vice President of Government Affairs for TU, urged Congress to “step into the breach and pass an amendment to the Clean Water Act that resolves this issue to provide the broadest possible coverage and protection for the nation’s waters.”

Ruling Favors Rivers Over Power Dams

The Supreme Court says states may protect the waterways by requiring a steady flow at hydroelectric plants, which tend to harness it.

By David G. Savage, Times Staff Writer
May 16, 2006

WASHINGTON — The Supreme Court sided with the environment over electric power Monday, ruling that state regulators may require a steady flow of water over power dams to benefit fish and kayakers.

The unanimous decision holds that states may protect the health of their rivers, even though hydroelectric dams are regulated exclusively by the federal government.

The dispute arose over five small dams on the Presumpscot River in Maine, but the court’s decision affects an estimated 1,500 power dams in 45 states. They include scores of dams on the Sacramento, Klamath and San Joaquin rivers in California.

Separately, the court agreed to take up an appeal from environmentalists who are seeking to enforce stricter clean-air rules against aging coal power plants. The justices said they would hear the clean-air case in the fall.

The ruling on rivers and dams resolved a clear conflict in the law. The Federal Power Act says hydro-power dams are to be regulated by federal authorities with the aim of producing electricity. But the Clean Water Act says those who “discharge” anything into a state’s navigable waters must obtain a permit from the state.

Until recently, state officials believed they were entitled to protect their rivers by regulating the flow of water over and through dams.

But last year, the privately owned SD Warren Co., which produces hydroelectric power in Maine, won the Supreme Court’s review of its argument that water flowing in and out of a dam is not a discharge.

Had the company prevailed, states would have lost their legal authority to protect their rivers and ensure a steady flow of water. Not surprisingly, officials of the power plants said that during dry seasons, they were more interested in holding back water so they could be assured of a steady flow over their generators to maintain power production.

In its opinion, the Supreme Court looked to the dictionary to decide the meaning of the word “discharge.”

“When it applies to water, ‘discharge’ commonly means a ‘flowing or issuing out,’ ” said Justice David H. Souter, citing Webster’s New International Dictionary. Other judges and regulators have agreed with “our understanding of the everyday sense of term,” he added.

Therefore, since water flowing over a dam is discharged back into the river, a state may regulate the operation of the dam, the court concluded in SD Warren Co. vs. Maine.

“This is a victory for rivers, for clean water and most of all for good common sense,” said Rebecca Wodder, president of the environmental group American Rivers.

But environmentalists are anxiously watching two other Clean Water Act cases that are pending before the Supreme Court. Both from Michigan, they will determine whether federal regulators can continue to protect inland wetlands and small streams from development or pollution.

Private-property activists say the Clean Water Act protects only rivers and lakes where boats can float, not wetlands that are far inland. Decisions in those cases are due by late June.

Bush administration lawyers joined all three Clean Water Act cases on the side of the environmentalists.

The clean-air case to be heard in the fall, however, concerns a move by the Bush administration to relax a strict anti-pollution rule set by the Clinton administration.

Under that rule, aging power plants that expanded or modified their facilities were required to adopt modern anti-pollution controls in the process. This issue has drawn much attention in the states of the Northeast, including New York, which are downwind of coal-powered plants in Ohio and West Virginia.

The Duke Energy Corp. in North Carolina challenged the Clinton-era rules and won a ruling from the U.S. 4th Circuit Court of Appeals concluding that the Environmental Protection Agency had exceeded its authority in requiring such modifications.

In a separate lawsuit, several Northeastern states are challenging the Bush administration’s move to relax the same rules.

Taking up the cause of clean-air advocates, lawyers for the nonprofit group Environmental Defense appealed to the high court. They argued it was the 4th Circuit Court that exceeded its authority.

The ruling will have a broad impact, environmentalists say.

“Over 160 million Americans, more than half of the country, live in communities out of compliance with the nation’s health standards, and today the Supreme Court took a big step toward aiding those communities in their efforts to restore healthy air,” Vickie Patton, an Environmental Defense lawyer, said on Monday

Court Upholds Subterranean Flows is a Part of Gualala River

The Court denied NGWC contention that the State Water Board did not have authority over subterranean flows that are part of the Gualala River Flow regime.

This is an important case as it asserts the Water Boards authority to assert justification to maintain minimum by-pass flows to protect Beneficial Uses of Water.

Now the State Water Resources Control Board – Division of Water Rights needs to assert their authority and mandate to protect beneficial uses on our Impaired Water Bodies (rivers) by ensuring adherence to permit conditions and limiting wasteful uses of water.

The case is North Gualala Water Co. vs. State Water Res. Control Bd., No A109438 (Cal. 1st App. Dist. May 31, 2006).  Denial of petitions challenging defendant board’s jurisdiction to compel plaintiff to obtain a permit to pump groundwater from two wells located near the North Fork Gualala River, as well as defendant’s interpretation of pumping limitations placed on the permit, is affirmed over claims that defendant: 1) misconstrued the statutory phrase, “subterranean streams flowing through known and definite channels,” in Water Code section 1200; and 2) placed unwarranted conditions on plaintiff’s permit.

For more information, contact Alan Levine, Coast Action Group, P.O. Box 215, Point Arena, CA 95468

Use Permit Limiting Extraction of Groundwater Was Not a Taking

A conditional use permit limiting a landowner’s right to use groundwater underlying his property was not a compensable taking. Allegretti & Company v. Imperial County, Case No. D045156 (April 26, 2006).

Imperial County issued a conditional use permit allowing Allegretti to re-drill an inactive well on a 2,400-acre parcel subject to the condition that total groundwater extraction on the property be limited to 12,000 acre-feet per year. Allegretti claimed the condition constituted both a physical and regulatory taking of his property. The Fourth District Court of Appeal ruled that the county’s actions did not effect a physical taking because the actions lacked the hallmarks of an actual physical occupation or invasion of the land, in that the county did not appropriate, impound or divert any water.

The court also found no regulatory taking because the permit condition did not deny Allegretti all economically viable use of his property, nor did it meet the Penn Central takings analysis: the condition did not unreasonably impair the value or use of the property or invade or appropriate any of Allegretti’s property; and there was no interference with reasonable investment-backed expectations, as Allegretti’s water right was already restricted by the California Constitution to the amounts needed for the landowner’s reasonable beneficial use.

For further information concerning the Allegretti decision, please contact the following attorneys: Geoff Robinson ( geoffrey.robinson [AT] bingham.com ) 925-975-5335 Derek van Hoften ( derek.vanhoften [AT] bingham.com ) 925.975.5341

Judge Rules RP Water Study is Flawed

Judge Owen of Sonoma Superior Court tentatively ruled May 30 in favor of the OWL Foundation of Penngrove that says Rohnert Park doesn’t have enough water for 3,600 new homes planned on the city’s eastern edge and other proposed growth. Almost half of those homes already have City Council approval, based in part on a $344,000 water supply study.

When the council approved the 1,645-unit University District this month, city officials said it would be served by the system of 42 municipal wells and the Sonoma County Water Agency’s Russian River aqueduct. Rohnert Park had agreed to curtail its ground water pumping in 2002 after neighboring Penngrove residents sued over concerns that the city’s practices were causing their wells to run dry. However, the council approved a 1,645-home development this month, Rohnert Park’s largest in a decade. A separate plan for 2,000 homes was also recently unveiled. Rohnert Park has plans to annex more than 800 acres and build up to 4,000 homes over the next 20 years.

Continue reading “Judge Rules RP Water Study is Flawed”

Northern California River Watch v. City of Healdsburg

In January of 2004, the U.S. District Court issued an order in favor of Northern California River Watch. In the ruling, the court held that a former excavation site, a 58 acre Basalt Pond, was adjacent to the Russian River and was within the jurisdiction of the Clean Water Act (CWA). Thus, the City of Healdsburg must obtain a National Pollution Discharge Elimination System (NPDES) permit in order to discharge wastewater into the pond; unhappy with this ruling, they appealed it in court on November 16th, 2005.

Please check back for court ruling!

Continue reading “Northern California River Watch v. City of Healdsburg”

KLAMATH RIVER WATER QUALITY STANDARDS APPROVED

NEW AND STRONGER KLAMATH RIVER WATER QUALITY STANDARDS APPROVED BY CALIFORNIA
On 7 September, after much debate, the California Water Resources Board formally approved new water quality standards (called ³TMDLs,² or ³total maximum daily loads² in Clean Water Act parlance) for the mainstem of the Klamath River. This decision gives final California agency approval to the proposed new standards adopted by the North Coast Regional Water Quality Control Board on 24 March after nearly six years of work, including two sets of independent scientific peer reviews.
The newly adopted state water quality standards now go to the US Environmental Protection Agency (EPA) for final concurrence approval by a 31 December 2010, Court-ordered deadline. This set of TMDLs is the final set of many such TMDLs for northern California salmon-bearing rivers required as a result of litigation brought by PCFFA and others (PCFFA et al. vs. Marcus) in 1994 that later resulted in a Court-approved consent decree and strict time schedule for their completion.

These new pollution control standards will be implemented over the next several years to help clean up numerous water quality problems in the Klamath mainstem that have severely limited salmon production in what was once the third most productive salmon river system in the U.S. The new standards will also be the basis of any future water quality permits or requirements that PacifiCorp, which owns the J.C. Boyle, Copco 1 & 2 and Iron Gate hydropower dams in the Klamath River, might later seek if it changes its mind about dam removal and reverts back to seeking formal dam relicensing.

However, currently PacifiCorp is committed to the Klamath Hydropower Settlement Agreement (KHSA), which provides for removing these four mainstem hydropower dams and transferring its fifth non-power flow regulatory dam (Keno Dam) to the federal government by end of 2020, if the Secretary of Interior decides that dam removal is in the public interest by 31 March 2012. The KHSA also requires PacifiCorp to fund various interim protection measures to improve water quality between now and dam removal as a way to partially meet PacifiCorp¹s new TMDL obligations.

For a copy of the KHSA and the most current information on the federal government¹s dam removal NEPA environmental impacts assessment, now being conducted as part of the process to prepare for the March 31, 2012, dam removal Secretarial Determination, see: www.klamathrestoration.gov <http://www.klamathrestoration.gov/> .

For more information on the Regional Water Board¹s proposed standards, adopted by the State Board on 7 September with only very minor changes, you should refer to: www.waterboards.ca.gov/northcoast/water_issues/programs/tmdls/klamath_river .

For an article on this issue from the 8 September Eureka Times-Standard, see: www.times-standard.com/localnews/ci_16019384