Environmental Law Institute – February 2013

The Environmental Law Institute has published a report that explores the states’ dominant role in water rights and in setting and enforcing water quality standards.  The report is intended to improve comprehensive understanding, particularly among lawmakers, advocates, and state and federal agency staff, of the strength of surface water quality and quantity authorities relative to one another in the Western U.S.; the consequences of existing laws, governance structures, and practices on the success of those two programs; and opportunities to reduce adverse impacts in the future. To view report, click here.

By Mike Swiger and Sharon White – VanNess Feldman – January 9, 2013

In Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., No. 11-460, decided January 8, 2013, the United States Supreme Court unanimously held that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of a pollutant” under the Clean Water Act (CWA).  The Court reversed a U.S. Court of Appeals for the Ninth Circuit decision holding that pre-polluted water originating from a navigable river and passing through a “man-made construction” into the natural river below is a “discharge of a pollutant” under the CWA.  The Ninth Circuit’s decision raised concerns for the hydropower industry because dams are man-made constructions in navigable waters that discharge water downstream, and the decision suggested, contrary to well-established precedent, that dams could become subject to National Pollutant Discharge Elimination System (NPDES) permitting under section 402 of the CWA. To read more, click here. 

U.S. Supreme Court Reaffirms Settled Precedent for Regulating Transfers of Water Through Stormwater Systems and Other Water Infrastructure – Holland & Knight – January 10, 2013