Private Water Law Blog

Comparison of the Old and New Definitions of Waters of the United States

The recently issued definition of waters of the United States for purposes of the Clean Water Act continues to generate significant interest in the legal and popular worlds. Litigation has been filed against the new rule, by states and industry on one side, and by environmental advocates on the other side. Unless a court order is issued against the rule, the new definition will go into effect on August 28, 2015.

As might be expected at such a time of change, many landowners are seeking to complete projects while the old rule is in effect. This is more about certainty of regulatory outcomes than the specifics of the two rules, as any change in law brings significant uncertainty.

In order to assist landowners and others who may be impacted by the rule, I have prepared a side-by-side comparison of the 1986 and 2015 versions of the rule, as well as a redline version. I hope the documents are useful.

Litigation on the Clean Water Rule

The US Environmental Protection Agency and US Army Corps of Engineers published their final Clean Water Rule earlier today regarding the scope of “waters of the United States” and the jurisdiction of the Clean Water Act. The Federal Register publication may be found here and here (PDF), and the USEPA website on the regulation here.

As expected, the rule was immediately faced with litigation. Three lawsuits of note were filed today by groups of states:

  • Texas, Louisiana and Mississippi filed a Complaint in US District Court for the Southern District of Texas;
  • Ohio and Michigan filed a Complaint in the Southern District of Ohio; and
  • Thirteen states, consisting of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming, filed a joint Complaint in the District of North Dakota.

Undoubtedly, numerous other suits will also be filed by industry groups and other interested persons. That may include suits by environmental advocates, who feel the new Clean Water Rule fails to include some waters that should be within the regulatory jurisdiction of the federal agencies.

California SWRCB Modifies Order for Operation of the State Water Project and Central Valley Project

On April 6, 2015, the California State Water Resources Control Board (SWRCB) issued an order modifying its earlier orders from February 3 and March 5 concerning operations of the State Water Project (SWP) and Central Valley Project (CVP) in the Sacramento-San Joaquin River Delta (Delta). Those orders were the result of a petition by the California Department of Water Resources and U.S. Bureau of Reclamation for a temporary, urgency change to SWP and CVP withdrawals of water in the southern Delta in response to the current drought. The SWRCB’s action applies to joint project operations between March 25 and June 30, 2015. Later operational changes will be addressed by future SWRCB action.

The primary changes to SWP and CVP operations in the latest order are: increasing authorized diversions, by reducing minimum daily Delta outflow requirements at Collinsville from 7,100 cfs to 4,000 cfs; allowing the gates at the Delta Cross Channel to remain open under certain circumstances; reducing the minimum San Joaquin River outflows at Vernalis from 710-1,140 cfs (depending on hydrologic conditions) to 500 cfs; and changing the timing of Vernalis pulse flows from April 15-May 15 to March 25-April 25. The SWRCB denied a request to increase the maximum export rate from the southern Delta, due to concerns that releases from New Melones Reservoir would not leave sufficient water in storage to protect fish and wildlife on the Stanislaus River.

The SWRCB concluded that the authorized changes in SWP and CVP operations strike a reasonable balance between fish and wildlife protection and best serving other needs for water diversions for municipal and agricultural purposes. It is clear heading into the 2015 dry season that the projects will be under extreme stress, as will all water users relying on the Sacramento and San Joaquin Rivers.

Dark Clouds Over California: The Sustainable Groundwater Management Act of 2014

I am excited to release a new white paper regarding the California Sustainable Groundwater Management Act of 2014, entitled Dark Clouds Over California. Please download the white paper and share with your colleagues. For your convenience, the executive summary is published below. Additionally, the Act is spread across three legislative bills, some of which modify each other, making them difficult to read. A compiled version of the Act is available here. Other provisions of the three bills that are not contained within the main body of the Act may be found here. Read More

California Mutual Water Companies Training 2014

For the past several years, I have conducted a state-mandated training course for directors of California mutual water companies pursuant to Assembly Bill 54. Given the continued interest in the topic, I will offer two training courses this fall. Because mutual water companies are spread across the state, making travel to a central location impracticable for many directors, the training will be conducted by webinar on the following dates:

  • Thursday, October 30, 2014 at 6:00 pm
  • Thursday, December 11, 2014 at 6:00 pm

The training will be similar to previous years, updated for new developments in 2014. The cost is $99 per attendee, with a maximum of $199 per company. If you are interested in attending the training or learning more, please call Kerri Chambers at (512) 236-2372 or email her at I can also answer questions below. I look forward to meeting you.

Missouri PSC Denies Economic Competitiveness Rate to Aluminum Company

Two of the fundamental principles of setting rates for public utilities are that rates should be based on the cost of providing service, and there should be no discrimination between different customers. These rules prevent one or more customers or classes of customers from subsidizing the costs incurred by the utility to provide service to other customers. If the total costs of a utility are seen as a fixed pie, these rules prevent one customer from having to pay for portions of the pie eaten by another customer.

Read More

New CPUC Resolution on Urban Water Conservation

Yesterday the California Public Utilities Commission (CPUC) adopted Resolution W-5000, which requires all investor-owned water utilities in the state to provide notice to their customers of the mandatory water conservation measures adopted by the State Water Resources Control Board (SWRCB) in its emergency regulations that became effective on July 28, 2014. The CPUC had required all Class A and B water utilities within its jurisdiction to activate Tariff Rule 14.1 calling for voluntary reductions in water use on February 28, 2014, in Resolution W-4976. Resolution W-5000 imposes further requirements.

Read More


Get every new post delivered to your Inbox.

Join 275 other followers

%d bloggers like this: