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Agencies Move to Rescind Obama’s WOTUS Rule

On June 27, 2017, the Environmental Protection Agency and Army Corps of Engineers proposed to rescind current Clean Water Act rules and re-codify the regulatory text that existed prior to 2015 defining "waters of the United States" (WOTUS). This action is designed to be temporary, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of "waters of the United States.”

"We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses," said Administrator Scott Pruitt. "This is the first step in the two-step process to redefine [WOTUS] and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."

Trump Reverses Obama’s Course on Climate Change

On March 28, 2017, President Trump issued Executive Order 13783, Promoting Energy Independence and Economic Growth. The Order rolls back the prior administration’s measures to integrate climate-related concerns into federal action. The Order directs all agencies to “review all existing regulations, orders, guidance documents [and] policies” that “potentially burden the development or use of domestically produced energy resources,” including oil, gas, coal, and nuclear. The analysis is intended to identify anything that could “unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilizing, transmission or delivery of energy resources.” Agencies are to issue final plans within 180 days, with recommendations on how to reduce these burdens. The Order also calls on EPA to review the Clean Power Plan, revokes various climate policies, and directs the Department of the Interior to lift a moratorium on coal leasing on federal land and to review regulations of oil and gas development on public lands, including a controversial hydraulic fracturing rule.

BWJ Water Lawyers Assist N-CORPE

On April 7, 2017, the Nebraska Supreme Court issued its decision in Estermann v. Bose et al., 296 Neb. 228, ___N.W.2d___(2017). The case centered around the construction and operation of the N-CORPE Project and was brought by a landowner, J. Daniel Estermann. The N-CORPE Project was created by the Upper Republican Natural Resources District, Middle Republican Natural Resources District, Lower Republican Natural Resources District, and the Twin Platte Natural Resources District, all political subdivisions of the state of Nebraska charged with managing ground water for a variety of purposes. Those four natural resources districts formed N-CORPE as a separate body politic to acquire over 18,000 acres of land in Lincoln County, Nebraska for the right to access the underlying ground water and discharge that water into both the Platte and Republican River Basins. The discharge to the Platte Basin was to augment river flows for Twin Platte’s integrated management plan, while the discharge to the Republican Basin was to augment flows to create a credit for water use which ensures compliance with the Republican River Compact.

Mr. Estermann’s property was located along the route of the water discharged into the Republican River Basin and he declined to sell his property to N-CORPE. N-CORPE subsequently condemned an flowage easement and began discharges. Mr. Estermann brought suit to enjoin the operation of the Project arguing that N-CORPE did not possess eminent domain authority and had failed to acquire all of the necessary permits and approvals to operate the project. N-CORPE, through its BWJ water lawyers, filed a motion to dismiss with the district court. The district court granted the motion and Mr. Estermann appealed to the Nebraska Court of Appeals. The case was then elevated to the Nebraska Supreme Court on the Court’s own motion.

Explaining that N-CORPE was comprised of natural resource districts and each held eminent domain authority, the Supreme Court concluded that “N-CORPE had the authority to exercise the power of eminent domain.” Id. at 244,__. The Court continued with an extensive review of the various permits and approvals Mr. Estermann argued were necessary. Ultimately the Supreme Court agreed with the district court that no such permits or approvals were required and that N-CORPE was operating in conformance with the law.

 

Changes to the EPA and the Clean Water Act

Following the inauguration of President Trump, a flurry of orders have made their way across the oval office desk.  Thus far Trump’s executive actions have ranged from imposing a hiring freeze on federal employees, moving to repeal the Affordable Care Act, and effecting a 90-day immigrant travel ban. In addition to these undertakings, on January 24, President Trump signed an executive order relating to the Environmental Protection Agency (EPA), leaving many wondering what implications these orders will have for both the agency itself and the agency’s regulations, particularity the Clean Water Act (CWA).

The EPA and The CWA:

As of January 23, officials at the EPA have been instructed by the Trump administration to freeze their grants and contracts. Every year the EPA awards upwards of $4 billion in funding, but the implementation of this temporary suspension has left that funding on hold. These freezes came as little surprise to those familiar with Trump’s criticisms of the EPA. President Trump is also requiring EPA studies and data be reviewed by political appointees before being released to the public. The result of these additional procedural hurdles may be a congestion of EPA activity and may ultimately lead to a decrease in the agency’s productivity and overall functionality.

In regards to the CWA, the Trump Administration has made it clear that it intends to stifle the Obama Administration’s effort to clarify the vagueness of the Act. Trump made no qualms regarding his sentiments towards the Act throughout his time on the campaign trail prior to the election. He has reportedly labeled the Act has ‘extreme’ and ‘unconstitutional’ and vowed to eliminate it completely. Trump’s newly appointed EPA director Scott Pruitt, the former Oklahoma Attorney General, has also described the rule as being ‘unlawful’ and a ‘brazen effort to stifle private property rights.’ Pruitt was confirmed as the EPA’s new leader on February 17.

The CWA is no stranger to controversy and debate. The Act is defined as covering Waters of the United States, or WOTUS. However, the scope of this vague standard is unclear and has caused much confusion. In June 2015, the EPA and U.S. Army Corps of Engineers published a final rule defining WOTUS. However, this rule has continued to elicit significant criticism, specifically regarding the expansion of the federal government’s regulatory reach over bodies of water not originally protected by the CWA.

On January 13, the U.S. Supreme Court agreed to address federal court jurisdictional reach over challenges to the current WOTUS rule. Numerous federal appeals court decisions have upheld the broad authority of the CWA, which in essence provides expansive federal jurisdiction over wetlands and other non-navigable waters. The Supreme Court’s grant of review will allow the Trump administration additional time to resolve the issue in their favor, which would likely eliminate or replace the rule.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

 

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster.  In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee.  Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources.  Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin.  Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin.  The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050.  The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.  It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

 

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster.  In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee.  Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources.  Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin.  Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin.  The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050.  The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.  It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

 

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster.  In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee.  Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources.  Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin.  Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin.  The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050.  The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.  It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

 

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster.  In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee.  Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources.  Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin.  Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin.  The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050.  The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.  It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

BWJ Water Lawyers Assist Natural Resources Districts with Niobrara River

After months of negotiations, three Nebraska political subdivisions announce they had reached agreement on the transfer of the controlling water rights to the Niobrara River in northern Nebraska. The Niobrara River drains over 11,000 square miles in portions of Nebraska, Wyoming, and South Dakota. The main stem of the Niobrara runs for nearly 400 miles along Nebraska’s norther boundary. The central portion of the river includes a 76-mile stretch that was designated by Congress as “Wild & Scenic” in 1991. In recent years, the river has been the epicenter of a dispute that involved hydropower, environmental and recreational interests, agricultural, and municipal interests. 

The dispute itself erupted when the Nebraska Public Power District (“NPPD”), the owner of a hydropower facility located near Spencer, Nebraska, elected to call for water administration from the Nebraska Department of Natural Resources (“NDNR”). The water appropriations held by NPPD at the Spencer facility are among the most senior on the Niobrara. In response to the call for administration, the NDNR issued closing notices to approximately 400 appropriations located upstream of NPPD’s facility. The closing notices were issued without any hearing at the beginning of irrigation season. In response to those closing notices, numerous suits were launched.

At the same time litigation over the closing notices was unfolding, federal agencies including the U.S. Park Service, were encouraging the Nebraska Game and Parks Commission to seek a state instream flow appropriation to protect environmental and recreational interests. The Park Service indicated a failure to seek such an appropriation by state authorities would likely result in the federal agencies initiating efforts to claim federal reserve water rights.

In response to these concerns, the BWJ water lawyers worked with their client natural resources districts to broker a transfer of the NPPD appropriations. The natural resources districts included the Upper-Niobrara White, Middle Niobrara, Lower Niobrara, Upper Elkhorn, and Upper Loup, all political subdivisions empowered to take a wide-range of regulatory action to protect water resources. The brokered transfer teamed the natural resources districts with the Nebraska Game and Parks Commission to allow those entities to jointly hold the water rights for the protection of fish, wildlife, recreation, and integrated management purposes. All litigation associated with the issue has been resolved and the parties are now working to effectuate the transfer of the water rights. The parties hope to complete the deal in 2017. 

EPA and Corps Publish New Rules for Waters of the United States

While it has been years in the making, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency today published the final rule clarifying the agencies’ interpretation of the term “Waters of the United States” and the overall jurisdictional reach of the Clean Water Act.  The rule is effective on August 28, 2015. According to the agencies their “interpretation is based not only on legal precedent and the best available peer-reviewed science, but also on the agencies' technical expertise and extensive experience in implementing the CWA over the past four decades.”  The rule, moreover, “does not affect any of the exemptions from CWA section 404 permitting requirements provided by CWA section 404(f), including those for normal farming, ranching, and silviculture activities” and “expands regulatory exclusions from the definition of ‘waters of the United States’ to make it clear that this rule does not add any additional permitting requirements on agriculture.”  In a modification from the proposed rule, the final rule “does not regulate shallow subsurface connections nor any type of groundwater[.]”  Nevertheless, the agencies have determined that certain waters are categorically included within the CWA’s jurisdictional reach.  Four types of waters, traditional navigable waters, interstate waters, impoundments of jurisdictional waters, and the territorial seas, are jurisdictional by rule in all cases.  Two types of waters, “tributaries” and “adjacent” waters, for the first time are jurisdictional by rule, as defined, “because the science confirms” their significant nexus to other jurisdictional waters. For waters that are jurisdictional by rule, no additional analysis is required.  All other jurisdictional waters are those found after a case-specific analysis to have a significant nexus to other jurisdictional waters, “either alone or in combination with similarly situated waters in the region.”  This latter point, aggregation of waters for purposes of making jurisdictional determinations, has been hotly debated.   The regulation will be fully subject to judicial review on July 13, 2015.  The finality of the rule is almost certain to set off a slew of lawsuits challenging its validity and conformance with prior Supreme Court decisions.