Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, No. 2:08CV447, 2013 WL 6091882 (E.D. Va. Nov. 18, 2013). (holding (i) the Corps’ extensive factual findings were not arbitrary and capricious and (ii) the Corps’ ultimate determination that a significant nexus existed between the relevant wetlands and the Northwest River was sufficiently persuasive to subject the wetlands to the Clean Water Act).

This case involved 4.8 acres of wetlands (“subject wetlands”) located in Chesapeake, Virginia for which Precon Development Corporation (“Precon”) sought a permit to develop. The development area contained a total of 658 acres, about half of those acres being wetlands, and 166 of the wetland acres flowed into the Saint Brides Ditch (“the Ditch”), including the subject wetlands. The Ditch ran along the western boundary of the wetlands area and fed into the Northwest River (“the river”). The second tributary to the river consisted of relatively permanent water that ran in the southwest corner of the wetlands and flowed into the Ditch. From there, the Ditch flowed to Pleasant Grove Swamp, joined Hickory Ditch, and finally entered the river.

The United States District Court for the Eastern District of Virginia (“district court”) received the case on remand from the United States Court of Appeals for the Fourth Circuit (“court of appeals”). The court of appeals determined the original administrative record contained insufficient information to evaluate the United States Army Corps of Engineers’ (“Corps”) conclusion that a significant nexus existed between the wetland and the river. Thus, on remand, the district court examined the Corps’ improved and amended record in accordance with the court of appeals’ direction.

The court of appeals based their suggestions for remand upon the “significant nexus” test in Justice Kennedy’s concurrence in Rapanos v. United States. Before remanding the case, the court of appeals provided guidance to the Corps regarding the nature of the report needed for reconsideration. The court of appeals noted that the report would not need to include laboratory tests or quantitative measurements but could instead include qualitative evidence like expert testimony about the functions of the relevant wetlands, adjacent tributaries, and the river. The court of appeals specifically stated that the administrative record should adequately address (i) the condition of the Northwest River, (ii) the actual flow rates of the two tributaries­, and (iii) the significance of that flow. The court of appeals also charged the Corps with documenting how the wetlands significantly, rather than insubstantially, affected the integrity of the navigable waters.

After the court of appeals remand, the district court also remanded the case to the Corps for additional administrative review. After the Corps developed a new record, the district court considered cross-motions for summary judgment. A magistrate judge first heard oral arguments for the motions before filing a Report and Recommendation (“R&R”) with the district court. The R&R recommended that the district court grant the Corps’ motion for summary judgment. Precon subsequently filed an objection to three of the R&R’s findings: (i) the condition of the Northwest River, (ii) the flow of the relevant tributaries, and (iii) the function of the wetlands in relation to these tributaries and the river. The district court analyzed each in turn.

In considering the condition of the river, the district court noted that the river was an impaired body of water due to low dissolved oxygen (“DO”) levels. Low DO levels are generally the result of high levels of nitrogen or phosphorus. Precon asserted that the evidence did not support a finding of excessive nitrogen because the record found only phosphorus as a nutrient of concern. As such, Precon contended that any role the Precon wetlands and similarly situated wetlands have on nitrogen cycling did not significantly impact the chemical or biological quality of the river.

The district court found that the record did not support Precon’s logic. The court determined that excess nutrient inputs from the wetlands cause eutrophication, which contributes to low DO levels in the river. Further, the court of appeals previously found that the wetlands and their adjacent tributaries trap sediment and nitrogen. Based on this record, the district court made two determinations. First, the court determined that the Corps’ finding that the wetlands prevent additional nutrients from reaching the river was not arbitrary and capricious because the record showed that both nitrogen and phosphorus levels were important to downstream water quality, and that the wetlands trap sediment and nitrogen. Second, the district court noted that it was not necessary for the Corps to demonstrate that there were high nitrogen levels in the river and its relevant tributaries on remand – it only needed to make general findings about the river’s impairment. Because the Corps provided evidence from both the Virginia Department of Environmental Quality and its own experts that showed that the river is an impaired body of water, the district court found that the Corps satisfied the court of appeals’ mandate to consider the condition of the relevant navigable water.

The district court next considered evidence regarding the flow of the river’s tributaries. Precon asserted that the magistrate judge’s evaluation of the flow in the ditch was meaningless. The district court interpreted Precon’s objection to be that the Corps arbitrarily relied upon hypothetical rather than actual flow rates. However, the district court found that the Corps’ reliance on hypothetical flow rates was appropriate and rational. Due to the lack of flow gauges in the river, the Corps had no actual flow rates, making a direct comparison of the flows from the river and the ditch impossible. The district court found that the Corps appropriately analyzed the available data points on the wetland and the navigable waterway and properly incorporated this information into the significant nexus determination. As the court of appeals instructed, the district court applied Skidmore deference and agreed that the analysis possessed the power to persuade.

 

Finally, the district court considered the Corps’ findings regarding the functions of the wetlands in relation to the tributaries and the river. Precon argued that the Corps’ experts simply expressed their opinions rather than provided quantitative and qualitative evidence to support a finding of a significant nexus. The district court found this objection meritless. The district court found that the Corps properly engaged in a lengthy discussion about the scientific validity of Precon’s experts’ findings and the conclusions drawn therefrom. The district court determined that Precon fundamentally misunderstood the district court’s role when faced with divergent expert opinions.  The district court relied upon the reasoning in Marsh v. Oregon Natural Resource Council, which states that courts should defer to the informed discretion of the responsible federal agencies. The Corps’ administrative record also emphasized the wetlands’ ability to support wildlife and the role tributaries performed in regulating water flows and quality. The district court therefore found that the Corps provided ample persuasive support for its finding of a significant nexus between the relevant wetlands and the Northwest River. The district court again found that the Corps’ determination was not arbitrary and capricious and that the ultimate determination of a significant nexus was highly persuasive.

Accordingly, the court adopted the magistrate judge’s R&R, granted the Corps’ motion for summary judgment, and denied Precon’s motion for summary judgment.

 

The title picture is of wetlands in Mattaponi Wildlife Management Area, located in Virginia. The picture is attributed to the U.S. Fish and Wildlife Service.


Background

The Great Lakes, which consist of Lake Superior, Lake Michigan, Lake Huron, Lake Erie, and Lake Ontario, comprise one of North America’s national landmarks and treasures.  The Great Lakes account for approximately one-fifth of the world’s surface freshwater.  This makes the Great Lakes the third largest system of surface fresh water in the world behind the polar ice caps and Lake Baikal in Siberia. The Great Lakes alone account for approximately 84% of North America’s surface fresh water and support approximately 6,000 species of wildlife, including numerous species of fish. The Great Lakes are also important sources of drinking water and economic livelihoods. Recreational boating, fishing, hunting, and wildlife viewing account for about $53 billion in revenue for the states surrounding the Great Lakes. However, the Great Lakes and the species the Great Lakes support are under threat due to the effects of climate change.

Lake Superior is currently warming up faster than any other lake in the world. It is the largest lake in the world by surface area, but it is relatively shallow despite its great size. Over the last thirty years, the lake has experienced a 50% decrease in ice cover. Ice cover is essential to keeping the lake cooler because ice reflects solar radiation back into the atmosphere. As the ice cover decreases, the lake absorbs more solar radiation, causing the temperature of the lake to increase. Lake Superior’s water temperature has increased approximately 2.5 °C (4.5 °F) between 1979 and 2006.

Effects of Climate Change

Summer Stratification

As the temperatures of the Great Lakes continue to increase, there is a risk that summer stratification will begin earlier. This means that during the summer, the warm surface layer of water does not mix with the colder bottom water layer. As a result, oxygen from the top of the lake is not transferred to the bottom of the lake. This can be a problem because the decay of dead algae on the lake bottom may deplete oxygen in the cold bottom layer of the lake, leaving organisms in the lower layer oxygen deprived. Lake Superior is already experiencing summer stratification about two weeks earlier than it has in the past thirty years, and some scientists predict that Lake Superior will warm to such an extent that it will be ice-free in the next thirty years.

Fishes

Climate change provides both a benefit to some fishes and a threat to other fishes. Walleye fish are thriving in the warm waters of Lake Superior, which is bringing more fishing business to the lake. However, invasive species, such as the sea lamprey, also find the warmer waters of Lake Superior inviting. The sea lamprey is a parasite that attaches itself to the side of a fish, particularly the trout, and as a result of its feeding, eventually kills the fish. The sea lampreys thrive in warmer water, and as the population grows, the trout population of Lake Superior may significantly diminish.

Water Level

Scientists have not yet come to a consensus on how climate change affects the water levels of the Great Lakes. Climate change may result in increased water withdrawals from the Great Lakes, thus potentially lowering the water levels. Some research supports the position that the lake system may be sensitive to climate changes with data showing that the Great Lake water levels have been consistently below the long-term average levels since 1997. In 1997, a reduction in the duration of ice cover correlated to a water temperature increase and doubled the evaporation rate. Since 1997, however, the water in the Great Lakes has fluctuated normally, albeit below the average levels.

If the water level is affected by climate change, much of the wildlife living near the lake will be threatened. Wildlife, such as moose, rely on the wetlands surrounding the Great Lakes for food and protection. The reduced water levels exposes and dries out the wetlands around the Great Lakes and threatens the unique ecosystem. Before scientists can definitively determine if climate change has any effect on the water level and thus local wildlife, however, more conclusive data must be produced.

Minimizing the Effects of Climate Change

In order to address the potentially shrinking water levels of the Great Lakes, state and national governments need to adopt and implement programs that focus on encouraging agricultural and urban water conservation. Conservation could be achieved through creating closed systems to recycle used water. Because of the potential risk to the Great Lakes’ wetlands, local governments need to formulate plans to protect the wetlands in order to maintain essential wildlife habitats and the unique ecosystem the wetlands support.

Also, the Great Lakes must not be overrun by invasive species of fish. Invasive species growth in the Great Lakes will need to be monitored and potentially controlled to ensure survival of native fishes.

In response to these suggestions, the Obama administration developed a five-year Great Lakes Action Plan in 2010. The plan seeks to address multiple issues: restoring the wetlands, controlling invasive species, and promoting accountability and education efforts. Estimates to implement this plan are at approximately $2 billion.

Conclusion

The Great Lakes will need to be monitored as global temperatures continue to rise. Fishes who thrive in the warmer waters of the Great Lakes should obtain support, and invasive species must be prevented from spreading throughout the Great Lakes. The local, state, and national governments should emphasize the importance of conservation programs to prevent water levels in the Great Lakes from decreasing further. Plans must be made to maintain wetlands at lower water levels so that the wildlife surrounding the Great Lakes does not lose its natural habitat.  Finally, citizens need to be educated about climate change and how it affects the Great Lakes.

 

The title picture is a satellite photo of the Great Lakes from the SeaWiFS Project.

 


Sources:

Phillip Ross, Climate Change Causing Lake Superior to Warm ‘Faster than any Lake on the Planet’, Int’l Bus. Times (Oct. 15, 2013), http://www.ibtimes.com/climate-change-causing-lake-superior-warm-faster-any-lake-planet-1427474.

Lisa Borre, Warming Lakes: Climate Change and Variability Drive Low Water Levels on the Great Lakes, Nat’l Geographic (Nov. 20, 2012), http://newswatch.nationalgeographic.com/2012/11/20/climate-change-and-variability-drive-low-water-levels-on-the-great-lakes/.

Dina Maron, Lake Superior, a Huge Natural Climate Change Gauge, is Running a Fever, N. Y. Times (July 19, 2010), http://www.nytimes.com/cwire/2010/07/19/19climatewire-lake-superior-a-huge-natural-climate-change-83371.html.

Global Warming and the Great Lakes, National Wildlife Federation, http://www.nwf.org/Wildlife/Threats-to-Wildlife/Global-Warming/Effects-on-Wildlife-and-Habitat/Great-Lakes.aspx (last visited March 12, 2014).

Great Lakes Facts and Figures, Great Lakes Info. Network, http://www.great-lakes.net/lakes/ref/lakefact.html (last visited March 12, 2014).

Interview by Cynthia Canti with Tim Kline, PhD student, University of Washington, School of Aquatics and Fisheries (Dec. 4, 2013), http://michiganradio.org/post/lake-superior-heating-faster-any-other-lake-earth.

How does Stratification Affect Water Quality?, Great Lakes Literacy.net, http://greatlakesliteracy.net/_downloads/activities/stratification-water-quality.pdf (last visited March 12, 2014).


If the rains failed to follow the plow, it’s safe to reach the same conclusion about the freeways as well. California, the nation’s most populous state and largest agriculture producer, is enduring a three-year drought that has grown into the state’s worst on record. With the critical Sierra Nevada snowpack at 12% its normal capacity this season (as of Jan. 30, 2014), some communities are at a real risk of running out of drinking water, and an estimated half million acres of productive farmland are expected to lay idle. Californians can no longer afford the luxury of debating climate change; they are living it, and the unprecedented decisions burdening state officials could very well be the forecast for the rest of the arid Western states.

 State of Emergency

January is typically California’s wettest month; however, as precipitation continued to elude the golden state, Governor Jerry Brown declared a state of emergency on the 17th. This decree, in part, put water right holders on notice of being forced to limit and potentially cease water diversions in the upcoming months.  While junior appropriators are first to be cut, “[s]ome riparian and pre-1914 water right holders may also receive a notice to stop diverting water if their diversions are downstream of reservoirs that are releasing stored water and there is no natural flow available for diversion,” according to AgAlert, the weekly newspaper for California agriculture.

State officials have implemented vast water rationing procedures to conserve what little water is left for the routinely dry summer months. Governor Brown’s decree called on all citizens to reduce water consumption by 20% and mandated urban water delivery suppliers to implement their water shortage contingency plans. Furthermore, the decree also instructed state agencies to employ water use reduction plans at all state facilities and placed a moratorium on non-essential landscaping projects at state facilities and on state highways.  Additionally, Governor Brown directed the State Water Resources Control Board to expedite the processing of water transfers to enable water to flow where it is most needed.

Governor Brown’s notice came to pass on January 31 when the California Department of Water Resources (“DWR”) announced that the State Water Project (“SWP”) would likely make zero water deliveries this year to all twenty-nine public water agencies it supplies. These adversely affected public water agencies help supply water to twenty-five million Californians and irrigate approximately 750,000 acres of farmland. Never before has the DWR announced a zero allocation to its customers. Further, deliveries to irrigation districts in the Sacramento Valley that hold senior water rights will be cut by 50%, the maximum amount permitted by contract with the SWP. This marks the first time since 1992 that deliveries to these districts have been cut.

Worse yet, in the coming weeks, the federal Central Valley Project, which supplies the majority of the California’s agriculture water and irrigates over two million acres, is expected to announce a bleak summer delivery projection as well.

When the Wells Run Dry 

Affected communities have been directed to subsist primarily on groundwater until the reservoirs return to adequate levels. However, as state officials are cognizant that California’s groundwater is already being depleted like never before, aquifer levels are now under closer supervision. In fact, recent data shows that the equivalent of full Lake Mead has been pumped from below the Central Valley in the past decade alone. Accordingly, the DWR has been directed to monitor well construction and deepening projects as well as produce an expansive public report on groundwater levels throughout the state by April 30th.

Governor Brown also directed the state’s Drinking Water Program to provide technical and financial assistance to communities at risk of running dry and establish emergency interconnections within the state’s public water systems to help sustain these threatened communities. So far, ten communities, mostly in the northern part of the state, have been targeted for immediate aide as they could run out of drinking water sixty days from February 19. Correspondingly, state officials have begun trucking in drinking water and helping lay pipes to connect these communities to neighboring public water systems.

The Ripple Effect 

The drought is causing heightened surface and groundwater usage, which is compounding water shortage problems and increasing groundwater contamination. Unable to rely on groundwater to relieve surface use, the Orland-Artois Water District ran out of water in late January after it delivered more than triple the amount of irrigation water in the first three weeks of the month than it had ever delivered in the entire month. Further, contaminants generated mainly from agriculture runoff are becoming highly concentrated in aquifers, as less water is available to dilute them. “The state has helped about 22 of 183 communities identified last year as reliant on contaminated groundwater to bring their supplies into conformance with environmental guidelines, but the rest are still building or preparing to build systems,” according to CBS News.

Making it Rain

California lawmakers recently proposed a $687 million drought-relief funding plan aimed to clean up contaminated drinking water supplies, improve irrigation and water conservation systems, and provide emergency food and shelter to furloughed workers in agricultural related industries. Notably, the plan also increases penalties for illegal water diversions. President Obama also took action, pledging $183 million in federal aid to the state through the Farm Bill, signed February 7.  The federal aid package allocated $60 million to shore up California food banks and provided $100 million to compensate farmers for livestock loss.

Watch and Learn

California’s biblical drought will likely raise produce prices in grocery stores across the country as the California Farm Bureau estimates a $5 billion impact resulting from idled farmland. Ideally, national ramifications would end there. However, we must recognize that what is happening in California cannot be quarantined. The unfortunate future of the American West has arrived, and other Western states need to both prepare for and learn from what is happening in California.

It almost seems fitting that California, arguably the most progressive state in the union, is the first to take direct action in the face of climate change. California, however, has been forced in this position, and forced to act swiftly. Other Western states have the limited luxury to develop water conservation and management plants in preparation for what is being thrust upon California. The precedent is hastily being set, and we must learn what we can from the failures and successes of California’s response to climate change.

 

The title picture is of the San Gabriel Dam and Reservoir, located in Los Angeles County, in December 2013. The picture is attributed to Shannon1 and licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. The use of this picture does not in any way suggest that Shannon1 endorses this blog.


Sources:

Jerry Brown, A Proclamation of a State of Emergency, Office of the Governor (Jan. 17, 2014), available at http://gov.ca.gov/news.php?id=18368.

California Department of Water Resources, DWR Drops State Water Project Allocation to Zero, Seeks to Preserve Remaining Supply, News for Immediate Release (Jan. 31, 2014), available at http://www.water.ca.gov/news/newsreleases/2014/013114pressrelease.pdf.

Rueters, Water Contamination a Risk in California Drought, Experts Warn, CBS News (Feb. 19, 2014), http://www.cbsnews.com/news/california-drought-water-contamination/.

Norimitsu Onishi & Coral Davenport, Obama Announces Aid for Drought-Stricken California, N.Y. Times (Feb. 14, 2014), http://www.nytimes.com/2014/02/15/us/politics/obama-to-announce-aid-for-drought-racked-california.html?hpw&rref=us&_r=1.

Kate Campbell, Rare ‘Curtailment’ Notice Underlines Depth of Drought, AgAlert (Jan. 29, 2014), http://www.agalert.com/story/?id=6347.

 

 

 


Acequia Background

Every spring farmers and ranchers in southern Colorado’s San Luis Valley gather to participate in annual community acequia cleanings. Acequias, which take their name from the Arabic word for “water bearer” or “barmaid,” are traditional gravity-fed irrigation ditches of Spanish origin. They have existed in southern Colorado and New Mexico since settlers of Spanish decent began to inhabit the areas and have been central to local communities since before Colorado became a state. In fact, the San Luis People’s Ditch in Costilla County has Colorado’s oldest priority right, assigned in April 1852.

In traditional acequia-based communities, open ditches transport water to long, narrow plots of land, known as vara strips, to maximize the amount of users who have access to the water. A mayordomo, or ditch boss, which land owners, or parciantes, elect in a one owner-one vote system, controls the allotment of the water. One of the most significant and unique features of acequias is their communal nature. Not only do the users share in the cleaning and upkeep of the ditches, they also share the available water equally. Acequia communities share water equally when it is plentiful as well as when it is in short supply, and small-scale agriculture in southern Colorado remains intertwined with the traditional acequia method of water allocation.

Despite having existed even longer than Colorado’s prior appropriation doctrine, until recently, acequias existed outside the purview of Colorado water law. Acequias themselves may have a recognized priority right, but individual parciantes historically relied on the mayordomo to ensure that they received the proper allocation of water. Without their own priority rights, parciantes in southern Colorado had limited legal recourse within the prior appropriation regime to enforce informal entitlements to water.

2009 Acequia Recognition Law

In 2009, Colorado passed the Acequia Recognition Law, which allowed community ditches established prior to Colorado statehood and primarily irritating narrow strips of land perpendicular to the ditch to incorporate as an acequia ditch corporation. These corporations would then be able to draft bylaws that would allocate water equitably, rather than based on prior appropriation. Additionally, the acequia corporation could have the right of first refusal regarding the transfer of acequia surface water rights.

While the 2009 Acequia Recognition Law helped to solidify the cultural and economic significance of acequias in southern Colorado, two aspects of the legislation proved to be problematic. The 2009 law narrowly defined an acequia as a ditch that provided water primarily to long, narrow plots of land running perpendicular to the ditch, and in order to qualify as an acequia ditch corporation, two thirds of the irrigated land must fall within this limited definition. These limitations reflected the traditional form of acequia irrigation but excluded many modern acequia irrigators with non-conforming plots from taking advantage of the Acequia Recognition Law.

2013 Amendment

In attempt to rectify these inadequacies, the Colorado legislature amended the 2009 Acequia Recognition Law in 2013. The 2013 amendment deleted the original statute’s narrow language, thereby allowing ditches serving non-conforming plots to qualify as acequias and also allowing ditch corporations serving more than one third non-conforming plots to qualify as acequia ditch corporations.

New Opportunities

Following the recent legislative action, acequia irrigators and the communities in which they live have the opportunity to legally bolster the long-standing acequia tradition. To this end, the Getches-Wilkinson Center at the University of Colorado has partnered with nonprofits and local attorneys to assist acequia communities in taking advantage of the Acequia Recognition Law and the 2013 amendment. The Acequia Assistance Project unites practicing attorneys and law students to help unincorporated acequia organizations incorporate, conduct governance review for existing acequia corporations, and help individual irrigators understand and secure their water rights.

 

The title picture is of La Canova acequia near Velarde, New Mexico.

 


Sources:

Colorado Revised Statutes § 7-42-101.5 (2013) (amending Colo. Rev. Stat. § 7-42-101.5 (2009)).

Gregory A. Hicks and Devon G. Peña, Community Acequias in Colorado’s Rio Culebra Watershed: A Customary Commons in the Domain of Prior Appropriation, 74 U. Colo. L. Rev. 387 (2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2269880.

Tom I. Romero II, Uncertain Waters and Contested Lands: Excavating the Layers of Colorado’s Legal Past, 73 U. Colo. L. Rev. 521 (2002).

Devon G. Peña, Presentation: Colorado’s 2009 Acequia Recognition Law: Punching a Hole in Prior? (March 2, 2010), available at  https://digital.lib.washington.edu/dspace/bitstream/handle/1773/16401/pena.pdf?sequence=2.

University of Colorado, Acequia Assistance Project, http://www.colorado.edu/law/research/getches-wilkinson-center/about-center/acequia-assistance-project (last visited March 4, 2014).


The Water Law Review is proud to announce the recently elected Editorial Board for Volume 18!
Editor-in-Chief - Davis Wert
Managing Editors – Aaron Brunskill and Gina Tincher
Articles Editors – Meghan Leemon, Edgar Barraza, Garrett Davey, Autumn Aspen, Ashley Novander, and Emily Miller
Court Reports Editors – Ashley Basta and Dale Ratliff
Business Editor – Chris Butler
Symposium Editor – Emily Dowd
Production Editor - Jen Najjar
Online Content Editor – Allison Robinette
Sources Editor – Lauren Hammond