ONRC Action v. U.S. Bureau of Reclamation, 798 F.3d 933 (9th Cir. 2015) (holding that the district court properly granted summary judgment in favor of the Bureau of Reclamation because the two water sources at issue were not “meaningfully distinct” and did not require the governmental entity to obtain a permit under the Clean Water Act).

In 2012, ONRC Action, an Oregon-based environmental group, filed a complaint in the United States District Court for the District of Oregon contending that the Bureau of Reclamation (“Bureau”) discharged pollutants from the Klamath Straits Drain (“KSD”) into the Klamath River without a permit, in violation of the Clean Water Act (“CWA”). The Bureau filed a motion for summary judgment and ONRC Action filed a cross-motion for partial summary judgment. A magistrate judge issued a report and recommendation in favor of the Bureau because of the Water Transfers Rule, which the Environmental Protection Agency (“EPA”) adopted through regulation. The district court adopted the magistrate’s report and recommendation finding summary judgment in favor of the Bureau and denying ONRC Action’s motion for partial summary judgment. ONRC Action appealed to the Ninth Circuit Court of Appeals (“Court”).

In 1905, Congress authorized the Klamath Irrigation Project (“Project”) to provide irrigation to approximately 210,000 acres of land in Oregon and California through a system of dams, pumps, drains, tunnels, and canals. The Project draws water from the Klamath River and Upper Klamath Lake, and eventually conveys the water from Lower Klamath Lake back into the Klamath River through the KSD. In the early 20th Century a natural waterway called the Klamath Straits connected the Lower Klamath Lake and the Klamath River. A local railroad severed the Klamath Straits in 1917, but the Bureau restored flow in the 1940s when it created the KSD. The KSD includes two pumping stations that keep water flowing within a certain operating range; however, the pumps are not always active. The KSD generally follows the historic pathway of the Klamath Straits, with only a slight deviation passing through marshland that acted as a historical hydrological connection between the water bodies.

To resolve whether the district court correctly granted summary judgment in favor of the Bureau, the Court looked to recent Supreme Court precedent in determining whether Lower Klamath Lake and Klamath River were “meaningfully distinct” water sources. The Court cited Los Angeles County Flood Control Dist. v. Natural Resources Defense Council (“L.A. County”), where the Supreme Court held that pumping water between different parts of a water body is not a discharge of pollutants under the CWA. The Supreme Court went on to add that a water transfer is a discharge of pollutants only if the bodies of water are “meaningfully distinct.” As a result of the Supreme Court’s holding in L.A. County, the Court did not rule on whether the Water Transfers Rule applied to the KSD discharge, nor whether the rule was within the EPA’s authority.

Finally, the Court compared the KSD-Klamath River transfer to L.A. County and South Florida Water Management District v. Miccosukee Tribe. Like the riverbed in L.A. County, the KSD is an improved version of a natural waterway that previously existed. Further, the water that the KSD transfers into the Klamath River originated in that river. The last point the Court made is that if the Bureau removed the pumps and headgates it placed in the 1940s the Klamath Straits would convey water between the Klamath River and Lower Klamath Lake, finalizing the argument that the waters are not meaningfully distinct. The Court emphasized this point because whether the CWA required the Bureau to obtain a permit turned on whether the two water bodies were meaningfully distinct.

Accordingly, the court affirmed the summary judgment in favor of the Bureau.

Featured image is of the Klamath River in California.  The image is part of the public domain.

Alaska Eskimo Whaling Comm’n v. U.S. Env’t Prot. Agency, 791 F.3d 1088 (9th Cir. 2015) (holding the Clean Water Act neither requires the EPA to satisfy each of the criteria in the statute when issuing an oil exploration waste discharge permit, nor determine reasonable alternatives to on-site disposal of wastes, and that the Clean Water Act does not require the EPA to incorporate the Alaska Eskimo Whaling Commission and oil companies’ agreed migrating measures into discharge permits).

The Alaska Eskimo Whaling Commission (“AEWC”) represents several native Alaskan villages engaged in subsistence hunting of bowhead whales in the Beaufort Sea. The AEWC challenged a wastewater discharge permit (“Permit”) that the Environmental Protection Agency (“EPA”) issued to oil exploration companies. The Permit authorized discharge of thirteen waste streams into the Beaufort Sea. The Permit mandated limitations and monitoring requirements, which barred discharge during the fall bowhead whale-hunting season. Despite these measures, the AEWC claimed that the EPA failed to adequately consider how the authorized discharges would impose on subsistence communities’ fall whale hunt. The AEWC contended that the discharges would divert the whales further from their migratory routes, making the hunt less productive and more dangerous.

The United States Court of Appeals for the Ninth Circuit (“Court”) had jurisdiction to review the Permit, in accordance with the National Pollutant Discharge Elimination System (“NPDES”) provisions within the Clean Water Act (“CWA”). AEWC petitioned the Court to remand the Permit to the EPA for further proceedings leading to additional restrictions.

The Court reviewed the action under the arbitrary and capricious standard of the Administrative Procedure Act, which generally states that the EPA’s action is presumed to be valid and must be affirmed if a “reasonable basis” exists for its decisions.

The EPA produced three documents to explain its decision: (i) the Response to Comments, which included all the comments the EPA received from the community when drafting the Permit; (ii) its Ocean Discharge Criteria Evaluation (“ODCE”); and (iii) its Environmental Justice Analysis.

In the Response to Comments, the EPA wrote that non-contact cooling water would not cause an unreasonable degradation to the marine environment because its analysis indicated the discharge’s temperature would dissipate within “100 meters of the discharge location.” In the ODCE, the EPA stated that authorized discharges would dissipate and dilute to “approximately 600:1 at 100 meters from the discharge point.” However, the day before oral argument, the EPA submitted a letter to the Court that acknowledged a mistake in the record, in which the model it cited in support of its statements did not include non-contact cooling water, but actually referred to drilling-related effluents.

Faced with this discovery, the Court remanded to the EPA to reconsider its determination that non-contact cooling water discharge would not cause “unreasonable degradation of the marine environment,” and to submit specific evidence regarding the effects of that discharge on the bowhead whale migration.

The AEWC next argued that the EPA failed to base its decision on two considerations listed in the CWA for determining degradation of marine waters. The Court determined that the CWA set forth considerations that the EPA must follow when “promulgating its own regulations, not the criteria that EPA must apply to each permitting decision it makes.” The Court concluded that those criteria did not apply to this case.

Finally, the Court weighed whether the EPA’s application of its regulatory criteria was arbitrary or capricious. To begin this inquiry, the Court examined 40 C.F.R § 125.123 that provides criteria under which the EPA issues discharge permits. Paragraph (a) of the statute states that “[i]f the director on the basis of available information . . . determines prior to permit issuance that the discharge will not cause unreasonable degradation of the marine environment after application of any necessary conditions . . . he may issue an NPDES permit containing such conditions.”

In support of its position, the AEWC first contended that paragraph (c) of the statute applied to this case. That paragraph stipulates that the EPA must determine there were no other reasonable alternatives other than on-site disposal of materials. However, the Court held that there was no evidence in the record, nor in the regulations, to support the claim that paragraph (c) applied to this proceeding.

Second, the AEWC argued the evidence did not support a finding that discharges other than non-contact cooling water will not cause an “unreasonable degradation of the marine environment.” The AEWC’s challenge of the EPA’s evidentiary analysis was based on two CWA criteria: i) the potential impact the discharge will have on human health; and ii) “[s]uch other factors relating to the effects of the discharge as may be appropriate.”

The Court disagreed with the AEWC, holding that the record was “replete with evidence” that the EPA fully considered the AEWC’s concerns and that it considered the CWA’s criteria in making its determination. Therefore, the Court held that the EPA was not arbitrary or capricious in issuing the Permit.

Third, the AEWC argued that the EPA did not provide a rational explanation of how the EPA’s monitoring program would prevent conflict with subsistence use and that the EPA acted arbitrary and irrational in relying on such monitoring programs. Again, the Court disagreed with the AEWC. It found that the detailed description of the monitoring program included requirements for monthly monitoring, post-drilling reports, and ongoing monitoring of marine mammal deflection during discharges. Based on these requirements, the Court held there was no basis for concluding that the EPA’s design and implementation of the monitoring program was arbitrary or capricious.

Finally, the AEWC contended that the EPA should adopt the same mitigation measures that the National Marine Fisheries Services (“NMFS”) adopted. These are the same measures the AEWC, Shell Gulf Oil of Mexico, and Shell Offshore, Inc. agreed to in a separate Conflict Avoidance Agreement. The Court held that the EPA was not required to adopt those terms because the AEWC identified no legal authority requiring such measures. The Court found no measures that would mandate the EPA to incorporate the NMFS mitigation measure or the Conflict Avoidance Agreement into the Permit.

Accordingly, the Court remanded to the EPA for a determination of whether the discharge of non-contact cooling water would cause an “unreasonable degradation of the marine environment,” and denied the petition in all other respects.

Featured image is from 1899 and is of whalers on the Arctic Ocean.

In the Matter of Water Rights, 361 P.3d 392 (Colo. 2015) (holding that: (i) the Colorado Ground Water Commission had jurisdiction to make the initial determination of whether the water at issue was designated ground water; and (ii) a portion of the storm runoff water at issue was “designated ground water” under the Groundwater Management Act, rather than surface water).

The Colorado Ground Water Commission (“Commission”) held hearings in 1967 and 1968 in order to resolve the proper designation of a ground water basin in the Upper Black Squirrel Creek Basin (“Basin”). It found that “‘virtually all’ of the water in the basin was underground water, and water flowed on the surface only ‘during and immediately following’ periods of heavy rainfall from summer storms.” The water was also not adjacent to a continuously flowing natural stream and would never reach a tributary system. As such, the Commission determined that the Basin qualified as a designated ground water basin, and entered its findings in a final order (the “1968 Order”).

The Meridian Service Metropolitan District (“Meridian”) proposed a development in the Basin area. Its development would result in an increase in surface water runoff due to the creation of impermeable surfaces. In 2011, Meridian filed an application for such surface water rights in the District Court for Water Division No. 2 (“Water Court”). In its application, Meridian sought conditional rights to divert and store runoff water from an unspecified Upper Black Squirrel Creek tributary. Opposers challenged the Water Court’s jurisdiction to hear the matter because while Meridian characterized the water in its application as “storm run-off,” the water directly recharges the Basin and is therefore designated ground water subject to the Commission’s administration. The Water Court agreed that Meridian’s application presented a jurisdictional question, and the Water Court and stayed its proceedings while Meridian initiated a case before the Commission.

A hearing officer for the Commission concluded that the water Meridian sought to appropriate was designated ground water and not surface water. The hearing officer reasoned that, except for Meridian’s development of impermeable surfaces, falling precipitation in the Basin would either recharge the aquifer, evaporate, or hydrate plants. The Commission affirmed the hearing officer’s conclusion, and Meridian appealed to the El Paso County District Court (“District Court”). The District Court agreed with the Commission and concluded that naturally falling precipitation would not reach a tributary system, and as such, the surface streams are “‘only streams because they are man-made.’” Therefore, the District Court denied Meridian’s application for surface water rights.

On appeal, Meridian made four arguments before the Supreme Court of Colorado (“Court”). It argued: (i) the Commission did not have subject matter jurisdiction to hear the case; (ii) the Commission improperly classified the storm runoff as designated groundwater water; (iii) claim preclusion barred the Commission from finding that a portion of water was designated ground water; and (iv) public policy concerns weighed in its favor.

The Court first addressed Meridian’s jurisdictional-based argument in which Meridian argued that the Water Court, not the Commission, had jurisdiction over the case because the issues involved conditional rights and surface water. In support of this argument, Meridian referenced The Water Right Determination and Administration Act of 1969 (“1969 Act”), which grants water courts jurisdiction over “water matters” in the state. The 1969 Act, however, “applies only to the administration of surface and underground water that is in or tributary to natural streams.” In contrast, The Colorado Groundwater Management Act (“Management Act”) grants the Commission jurisdiction over designated ground water issues. More importantly, in the case of a jurisdictional conflict between the deciding bodies, jurisdiction vests with the Commission to initially determine if designated ground water was at issue. The water court only obtains jurisdiction if the Commission concludes that the contested water is not designated ground water. Accordingly, because this case involved a jurisdictional issue, the Court rejected Meridian’s argument and found that the Commission had jurisdiction to make an initial determination.

Next, the Court turned to the issue of classification. Meridian contended that the District Court erred by finding that the water at issue was designated ground water, and not surface water. In making a determination, the Court first looked at the Management Act, which defines “designated ground water” as “ground water which in its natural course would not be available to and required for the fulfillment of decreed surface rights.” The Management Act also defines “ground water” as “any water not visible on the surface of the ground under natural conditions.” Considering these definitions and the record, the Court upheld the District Court’s finding that the water Meridian sought to divert was not simply surface water. The Court found ample support in the record to conclude that a portion of the water Meridian sought to appropriate was the result of man-made impermeable surfaces and did not occur naturally, except during heavy rain events. The Court also rejected Meridian’s definitional arguments based on case law because the facts of the cases were too dissimilar.

The Court then turned to Meridian’s argument that claim preclusion prevented the Commission from finding that a portion of the water at issue was designated ground water. Meridian contended that claim preclusion occurred because the Commission stated in its 1968 Order that only water in the Basin was designated ground water. The Court found that claim preclusion did not apply because the earlier and present proceedings did not involve identical claims for relief. Additionally, the runoff water at issue in this case, created in part by Meridian’s development, could not have been a part of a lawsuit in 1968.

Finally, the Court addressed Meridian’s public policy argument and held that the District Court’s reasoning, and not Meridian’s, was consistent with public policy for three reasons. First, the Court reasoned that allowing people to own a previously untapped water supply, resulting from development that replaced natural land conditions, would be contrary to public policy. Second, the Court found that it could not condone Meridian’s application because doing so would result in a type of unprecedented “‘super decree’” that would allow Meridian access to the water “free from both the call of the Arkansas River and the Commission’s oversight.” Third, even though only four percent of precipitation recharges the aquifer, the Court found that granting Meridian’s application would have resulted in an overall reduced rate of recharge, which would harm senior designated ground water users.

Accordingly, the Court affirmed the District Court’s holding on all four issues.

The featured image is of the Adur Flood Plain in the United Kingdom.  Bob Embleton holds the copyright to this image and its use is not his endorsement of the Water Law Review.