Rangen, Inc. v. Idaho Dep’t of Water Res., 371 P.3d 305 (Idaho 2016) (affirming the district court’s ruling that: (i) the Idaho Department of Water Resources’ approval of a mitigation plan that deferred consideration of injury to other water users was not an abuse of discretion; (ii) a mitigation plan that included curtailment and insurance as contingencies was adequate to assure protection to senior priority rights; and (iii) construction of a water pipeline across private land to a place of beneficial use did not constitute an unlawful taking under Idaho’s eminent domain laws).

On December 13, 2011, Rangen, Inc. (“Rangen”) filed a petition for a delivery call with the Idaho Department of Water Resources (“IDWR”), alleging groundwater pumping by junior appropriators in the Eastern Snake Plain Aquifer (“ESPA”) materially injured its water rights.  In response, IDWR’s director (the “Director”) issued an order that curtailed some junior-priority groundwater pumping in the ESPA.  The order allowed junior-priority groundwater users to avoid curtailment by participating in an approved mitigation plan providing 9.1 cubic feet per second (“cfs”) of water to Rangen.  Idaho Ground Water Appropriators, Inc. (“IGWA”), who represented junior priority users in ESPA, submitted several mitigation plans to IDWR.  On October 8, 2014, the Director conditionally approved IGWA’s Fourth Mitigation Plan (the “Plan”), which required IGWA build and maintain a pumping station, pipeline, and other necessary facilities for the transport of water (“the “Magic Springs Project”).  Under the Plan, SeaPac of Idaho, Inc. agreed to sell or lease 10 cfs of water to IGWA.  IGWA would then pump that water to Rangen through the Magic Springs Project.

The conditional plan hinged on IGWA obtaining approval for its Application of Transfer from SeaPac of Idaho, Inc.  The Director declined to rule on the Application of Transfer in the order.  The Plan also required IGWA to purchase an insurance policy that covered Rangen’s losses of fish attributable the Magic Springs Project’s failure.  Last, the Director ordered Rangen state in writing that it would accept the water delivered and the construction of the Magic Springs Project on its land.  If the conditions failed, IDWR would suspend the Plan.  Nevertheless, IGWA constructed the Magic Springs Project’s pipeline during the conditional period.

After approval, Rangen petitioned the district court to review the Director’s decision.  The district court affirmed the decision.  Rangen then appealed to the Supreme Court of Idaho, challenging that: 1) the Director abused his discretion when he deferred consideration of potential injury to other water users until proceedings on IGWA’s Application for Transfer; 2) the Director erred by approving a plan with inadequate contingency provisions; and 3) the Director’s order constituted an unlawful taking of Rangen’s property and should be set aside.

First, the Supreme Court of Idaho held the Director did not abuse his discretion by deferring consideration of potential injury to other water users until the proceedings on IGWA’s Application for Transfer.  Here, Rangen argued the Director did not have discretion to defer consideration of injury to water users under Conjunctive Management Rule (“CMR”) 43.03j and that it was unreasonable to ignore those factors.  CMR 43.03 and subsection j state the Director “may” consider “whether the mitigation plan is consistent with the conservation of water resources, the public interest or injures other water rights, or would result in the diversion and use of ground water at a rate beyond the reasonably anticipated average rate of future natural recharge.” The Court began its analysis by interpreting the CMR’s regulatory language.

The Court found that a plain reading of the CMR gave the Director discretion to defer consideration because the word “may” was permissive rather than imperative.  The Court compared the regulatory language to its interpretation in another case that required the Director consider several factors in determining injury prevention.  The case was distinguishable as it referred to a different subsection that stated, “the mitigation plan must include. . . .”  After undertaking this analysis, the Court turned to Rangen’s assertion that it was unreasonable to ignore the factors under CMR 43.03j.

Rangen claimed it was unreasonable for the Director not consider CMR 43.03j for two reasons.  Rangen first claimed the Director would not find injury to other users because IGWA had completed construction of its pipeline and accordingly had failed to consider potential injury to other users.  The Court rejected this argument, finding it unclear how potential injury to users would occur without consideration, as the Plan provided other users with the opportunity to raise issues at the later proceeding.  Furthermore, Rangen failed to submit any evidence to the court showing the Direct would allow construction based on the pipeline’s construction and IGWA bore the risk burden when it built the pipeline early.  Rangen also argued the Director should have conducted the injury analysis in the Plan because the later transfer proceeding went forward under a different regulatory provision than CMR 43.03j.  In response, the Court again pointed to the Director’s discretion provided by the CMR.  After determining the Director did not abuse his discretion by delaying Application of Transfer Proceedings, it turned to Rangen’s challenge that the Plan did not include adequate contingency provisions.

The Court found the contingencies were adequate because the IDWR did not avoid curtailment of junior-priority rights in the event that the Plan became unavailable.  CMR 43.03c requires mitigation plans “assure protection of the senior priority right in the event the mitigation water sources becomes unavailable.”  Under this regulation, Rangen argued curtailment was not a contingency because it was a natural and legal consequence that occurs without mitigation, and that the benefits of curtailment can take years to materialize and would not immediately remedy its injury.  The Court rejected this argument, finding the Plan offered sufficient protection to Rangen’s right through the combination of a curtailment and insurance.  It noted the insurance policy would provide as a safeguard if curtailment failed to provide a remedy.  Rangen then challenged that the insurance plan’s adequacy for compensating potential losses it would suffer if a shortage occurred.  The Court allayed these concerns by stating the insurance policy covered exactly the type of injury Rangen discussed.

Finally, the Court turned to Rangen’s argument that IDWR’s order constituted an unlawful taking of senior owner’s property.  Rangen argued the Director’s order amounted to an unlawful taking because it forced senior owners to choose between granting IGWA an easement or risk losing water that they were entitled to because the order allowed IGWA to suspend its mitigation obligation if Rangen did not allow the pipeline’s construction.  The Court found that even if it interpreted the Director’s order to require Rangen to grant IGWA an easement because Idaho’s constitutional eminent domain power extends to property of public use after just compensation.  Under the Idaho Constitution, right of ways for the construction of pipelines to convey water to the place of beneficial use fall under that power.  This would allow the state to take the property after just compensation.  Since Rangen did not allege that it was not provided just compensation, the Court rejected this claim.

Accordingly, the Court upheld the district court’s partial affirmation of the Director’s order conditionally approving the Plan.

Dalton Kelley

Image: No Trespassing sign in Idaho. Flickr User Makis Siderakis, Creative Commons.


Despite the recent above-average rainfall in Northern California, the state is currently in its fifth year of severe drought.  Although two of the state’s largest water reservoirs, Shasta and Oroville, have recently filled up to ninety-percent capacity, and heavy snowfall over the mountains has improved conditions in the northern part of the state, one fifth of California still remains in the deepest category of drought.

While experts have predicted that Southern California is in for a hot and dry winter—which is usually California’s wettest time of the year—La Niña conditions mean that Northern California could experience winter storms, which would allow for average or above-average snowfall in the Sierra Nevada mountain range.

In response to these anticipated conditions and water scarcity concerns, California is attempting to adapt its water laws not only to withstand the current drought conditions, but also to better prepare for future droughts.  Rather than focusing solely on how to get more water to their citizens, much of the efforts aim at revising outdated policies and addressing long-standing issues.

Calls for Change:  An Outdated System?

California water law is a hybrid of the prior appropriation system and riparianism. Although California water law recognizes both riparian and appropriative rights, the former is given priority over the latter. This hybrid system works best when there is an abundance of water and a smaller population.  However, with today’s warmer climate, drier conditions, and upwards of thirty-nine million residents currently living in California, many say that the state’s water allocation system is becoming outdated and inefficient.

Most water rights in California, including those held by municipalities and agricultural users, are appropriative water rights, rather than the senior riparian rights, because the property is not located near a river or stream. During times of drought, those with junior water rights have their ability to use water curtailed so that senior water right holders receive the share of water to which they are entitled.  There are a number of issues that stem from this “first in time, first in right” system, and residents are increasingly pushing courts and the state legislature to make some changes.

One issue exists between the agricultural sector, which owns a majority of the states senior appropriative water rights, and municipalities, that in most cases, were granted water rights later than agricultural appropriators and therefore have rights that are junior to those belonging to farmers and ranchers.  Critics of the state’s water allocation system argue that the inequality between “senior” and “junior” right owners impedes the state’s ability to efficiently allocate the scarce water supply.

Real Change: Conservation, Enforcement, and Public Records

This past year, for the first time in the state’s history, California implemented a statewide mandate restricting residential water use by twenty-five percent. Although there was backlash to imposing the restrictions, the state saw an overall improvement in the implementation of conservation measures and drought predictions. For example, the Metropolitan Water District of Southern California, which supplies the state’s largest city, Los Angeles, and twenty-five other cities and districts with water, expects to provide users with about three-fourths of their water supply. Additionally, the district plans on replenishing depleted underground reservoirs and setting aside more excess water for storage. However, despite these efforts to increase conservation, California lifted the restrictions this past June due to slight improvement in drought conditions. Since lifting the restrictions, urban water consumption rates rose nearly 10 percent from the previous year.

Although California’s urban water suppliers have complied with the water usage regulations, very few state agencies have agreed to penalize customers for using excessive amounts of water. Furthermore, due to California’s stringent public records law, utility companies do not have to disclose the names of the largest water users. During the recent drought, mega-users have used these public records laws to protect their identities from public scrutiny.

In response, the state has enacted SB 814, which requires water districts to enforce restrictions on excessive water use. Under this new law, agencies are now required to set limits on residential water consumption. Residents can pay fines of up to $500 for every 758 gallons of overuse. Furthermore, the names of violators will be made public. However, this law only takes effect when the state is in a drought emergency.

In addition, the state is attempting to tackle its water issues with The Open and Transparent Water Data Act (AB 1755). The legislation was enacted in 2016 and focuses on updating the state’s water information system by providing a more transparent and efficient system for managers to obtain more comprehensive water data.  Currently, all levels of governmental agencies collect such water data, which can be inefficient, and may also lead to inaccessible and incompatible data.  Under the new system, all new and pre-existing water datasets will be integrated on a statewide online water information platform to provide managers with fuller information on water transfers. Supporters of the bill see it as a critical step in ensuring the long-term sustainability of the state’s limited water supply.

By providing comprehensive data, this new legislation will also help with the implementation of California’s groundwater law, the Sustainable Groundwater Management Act.  In the past, California did not require water users to report their groundwater usage or restrict its use despite declining groundwater levels.  During times of drought, groundwater makes up for about sixty percent of the state’s water demands, and excessive pumping has caused the land in some regions of California to experience subsidence of up to ten feet.

Notably, researchers have just discovered a new source of groundwater that is approximately ten thousand feet beneath Central Valley. Although this is still a relatively new finding, residents have expressed concerns that pumping this water could exacerbate the already-existing issues with pumping groundwater. However, the state’s groundwater law requires users to establish groundwater sustainability agencies that will regulate manage and monitor groundwater pumping in the future, which may help to solve many of these problems.

In the coming years, California hopes to create a more efficient and effective way to allocate, regulate, and maintain the state’s scarce water supply. The newly enacted legislation is a first step in reaching the goal of getting out of the current drought and better preparing for the future.

                                                                                                            Alicia Garcia

Image: The Lake Sonoma marina in Northern California. Flickr user David McSpadden, Creative Commons.

 

Sources:

David Gom, NOAA’s Winter Forecast Says no Rain for you, Southern California, SOUTHERN CALIFORNIA PUBLIC RADIO, (Oct. 20, 2016), http://www.scpr.org/news/2016/10/20/65704/noaa-s-winter-forecast-says-no-rain-for-you-southe/.

Matt Stevens, Califonria’s Heavy Water Users Could Face Penalties if Drought Persists, L.A. TIMES, (Sept. 2, 2016), http://www.latimes.com/local/lanow/la-me-ln-water-wasters-20160831-snap-story.html.

Ellen Knickmeyer and Amy Taxin, Officials Maintain Conservation Message Despite California’s Drought Divide, CLAIMS JOURNAL, (Nov. 8, 2016), http://www.claimsjournal.com/news/west/2016/11/08/274794.htm.

Kirsten James, California’s New Water Data Law Will Have Far-Reaching Benefits, NEWS DEEPLY, (Oct. 11 2016), https://www.newsdeeply.com/water/community/2016/10/11/californias-new-water-data-law-will-have-far-reaching-benefits.

Tara Lohan, Legislative Update: 6 New California Laws Impacting Water, NEWS DEEPLY, (Oct. 20, 2016), https://www.newsdeeply.com/water/articles/2016/10/04/legislative-update-six-new-california-laws-impacting-water.

Mark Drew, Community Voices: New Legislation Key to Water Management, (Nov. 4, 2016), http://www.bakersfield.com/opinion/community-voices-new-legislation-key-to-water-management/article_8e655c02-1cdc-5f66-aab2-3b8683792477.html.

California Drought: Impacts and Solutions, http://www.californiadrought.org/drought/current-conditions/ (last visited Nov. 4, 2016).

Weston Phippen, California’s New Drought Rules, THE ATLANTIC, (May 10, 2016), http://www.theatlantic.com/national/archive/2016/05/california-water/482064/

Marr Stevens & Bettina Boxall, Some Emergency Drought Rules Might be Eased But Don’t Start Hosing Down Sidewalks, L.A. TIMES, (May, 2016), http://www.latimes.com/local/lanow/la-me-ln-water-conservation-20160509-story.html.

Kevin Haroff, The California Drought and Its Impact on State Water Law and Policy, MARTEN LAW, (July 28, 2015), http://www.martenlaw.com/newsletter/20150729-california-drought-state-water-law-policy.

Richard M. Frank, Another Inconvenient Truth: California Water Law Must Change, S.F. CHRONICLE, (Apr. 10, 2015), http://www.sfchronicle.com/opinion/article/Another-inconvenient-truth-California-water-law-6192703.php.

Kristin L. Martin, They Can Have My Hose When They Pry It From My Cold Dead Hands: When California is Faced With a Drought, Who Gets Water and Who Goes Without?, Texas Envt’l. Law Journal Vol. 47, (Apr. 25, 2016) http://dx.doi.org/10.2139/ssrn.2769640.

 


New Mexico, ex rel. State Engineer v. Trujillo, 813 F.3d 1308 (10th Cir. 2016) (holding that a special master in a general stream adjudication properly granted summary judgment against an individual who objected to a district court’s proposed order limiting her water use to 0.5 acre-feet per year (“AFY”)).

This case came before the Tenth Circuit Court of Appeals as an individual challenge to a general stream adjudication initiated by New Mexico to determine water rights in the Nambe-Pojoaque-Tesuque Basin (“Basin”), which originates in the Sangre de Cristo Mountains.  Elisa Trujillo held a domestic well permit allowing her to divert underground water in the Basin.  The individual adjudication of water rights led to the conflict between Trujillo and New Mexico.  In 1983, the United States District Court for the District of New Mexico prevented the state from issuing domestic well permits in the Basin unless the water was used for household purposes only.  This permit provision specifically excluded using water for irrigation.   In 1985, Trujillo’s predecessor-in-interest received a domestic well permit in accordance with the 1983 injunction (prohibiting irrigation) and was granted a maximum use of 3.0 AFY.

In 1994, the district court directed a special master to determine the appropriate amount of water rights for all permits granted after 1982, including Trujillo’s.  The doctrine of beneficial use controls how much water is granted to each permit, and under the New Mexico Constitution, is the amount of water that can be used beneficially and with purpose; water rights are limited based on that use.

Because of the 1994 order by the district court, Trujillo’s permit was amended to limit water use to either 3.0 AFY or the historic, beneficial use, whichever was less.  The court allocated 0.5 AFY for domestic wells unless permit holders showed a greater beneficial use.  In 2006, the district court required permit holders to show (1) why the permit should not be adjudicated to 0.5 AFY and (2) why the water rights should not be otherwise adjudicated consistent with the terms of the domestic well permit in order to obtain more AFY.  Essentially, the burden was placed on the permit holder to prove a need for more than 0.5 AFY in keeping with the doctrine of beneficial use.

Trujillo’s permit was originally designated for domestic use, and in 1985, the permit allowed for up to 3.0 AFY of water.  The state’s proposed order restricted Trujillo’s water use to indoor purposes and limited the amount to 0.5 AFY based on historic beneficial use.  Trujillo objected to her permit’s prohibition on outdoor use and the limitation of 0.5 AFY.  The State offered into evidence an affidavit by an expert witness stating that, on average, permits for a domestic well use 0.4 AFY per household. Trujillo failed to prove that she had the right to use more than 0.5 AFY under the doctrine of beneficial use for a purpose other than as allowed in the permit. In 2010, the Special Master granted summary judgment in favor of New Mexico.

After the Special Master issued the order, Trujillo filed several motions, including an objection to the 2010 order of summary judgment, two motions to quash the 1983 injunction, and a motion to reconsider the district court’s overruling of her objection to the order of summary judgment.  In 2015, the district court issued an order adjudicating Trujillo’s domestic water rights as part of a regional general stream adjudication.  The 2015 order issued by the district court imposed identical conditions on Trujillo’s domestic water rights as had been stated in the 2010 order: a limit of 0.5 AFY with a prohibition on outdoor use including irrigation.  The Court did not find this to be a final ruling subject to its jurisdiction because Trujillo and other permit holders may object to the order during the inter se stage before the district court enters a final judgment on September 15, 2017.  Therefore, the Court did not have jurisdiction under 28 U.S.C. § 1291 to review 2015 order by the district court.  The pragmatic finality doctrine is an exception under § 1291 and may be applied in order to expedite appellate review. However, the Court did not apply the pragmatic finality doctrine to Trujillo’s appeal, instead finding jurisdiction under 28 U.S.C. § 1291(a), which permits interlocutory appeals.

Accordingly, the Court had jurisdiction to review the Special Master’s summary judgment order issued in 2010.  The Court upheld the district court’s ruling from 2010 and the subsequent order in 2015. On appeal, Trujillo did not present the court with evidence of her beneficial indoor use.  Trujillo failed to raise an argument against the 2010 decision upon which the 2015 decision was based.  Contrary to New Mexico law, Trujillo argued that her permit alone created the water right.  Beneficial use is the basis from which all water rights within the state may be legally measured and limited, and Trujillo gave no evidence of her beneficial use for indoor purposes in excess of the allocated 0.5 AFY.

Therefore, the Court affirmed the district court’s order for summary judgment in favor of the state of New Mexico.

Margaret Casey

Image: The Río Grande del Norte National Monument, which is west of the Sangre de Cristo Mountains in New Mexico. Flickr User Bureau of Land Management, Creative Commons.

 

 


Spring 2017 Water Law Review Candidacy

The Spring 2017 Water Law Review Candidacy Packet is now available.

Candidacy packets must be submitted by 11:59 p.m. on Sunday, January 29.

The packet may only be accessed from TWEN during the candidacy period.

Completed packets will also be submitted via TWEN. To access the packet, please add the course “WLR Candidacy”.

For more information, contact:

Editor in Chief Blaine Bengtson at wlr@law.du.edu


It is not present in the mountain streams, reservoirs, or water treatment plants, but it still may be lurking in many pipes in cities and residential spaces throughout the country that were built before 1950.

Although Denver Water has taken major steps to eliminate lead in the city’s drinking water, it is nearly impossible to target every existing lead pipe within households throughout the city. It would require excavating front and back yards leading up to Denver Water meters, and even  interior excavation if the source is not easily identified. Because this process is so intimate to the household space, the duty has fallen on the residential caretakers to test and evaluate the lead levels in their own personal drinking water. The issue many U.S. cities are facing is that residents are either uninformed or they wrongfully assume that their residence does not have lead piping. Denver Water has made strides in aiding customers in the regular testing of their water by giving out a free lead-testing kit to anyone who requests one, and then replacing any lead piping at no cost to the customer. Although the earth-shattering drinking water issues in Flint brought forth the lead scare in many cities in the past couple of years, this problem has been haunting Americans for more than a century.

Lead is one of the most dangerous neurotoxins known to man, causing health issues for Americans since the installation of lead water distribution pipes in the late Nineteenth Century. In 1900, more than seventy percent of the nation’s cities with populations greater than 30,000 residents established water distribution service lines through lead piping. Why would these early water piping pioneers choose lead over much cheaper substances such as iron or even copper to create these pipes? The answer seemed simple: lead lasts almost twice as long and is more pliable when crafting around existing structures. In the mind of lead manufacturers and public officials, the value of these pipes outweighed the potential health risks associated with their use.

In the 1920s many cities opted to halt the installation of lead pipes for water distribution. However, because the government did not federally mandate the movement and there was no concrete evidence against its use, installations continued. During this time, lead-skeptic physicians started to voice their unease, and a small sector of the medical community attempted to link the rise of lead poisoning in Americans to the growing underground network of lead pipes taking over the nation’s drinking water distribution. This “hunch” turned into a small battle with the Lead Industries Association (“LIA”) who was consistently pumping out positive propaganda in an effort to save face for the largest monetarily-valued asset of their industry: lead pipes for water service lines. The LIA and its backers dismissed the disputing physicians’ claims by alluding that the symptoms the lead poisoning victims faced, such as slowing growth in children, central nervous system defects, hearing problems, and even cancer, were actually scattered symptoms of similar diseases or sicknesses. They went further to state that lead poisoning tests were not well-developed and gave faulty results causing unnecessary fear.

It was not until the Safe Drinking Water Act of 1974 (“SWDA”) that the federal government decided there was indeed a concrete link between the poisoning and the pipes. This act mandated safe drinking water in general for the nation and handed the reigns over to the Environmental Protection Agency (“EPA”) to set the standards. In 1986, the EPA passed a series of amendments, one of which prohibits the “use of any pipe or plumbing fitting or fixture, any solder, or any flux, after June 1986, in the installation or repair of (i) any public water system; or (ii) any plumbing in a residential or non-residential facility providing water for human consumption, that is not lead free.”

With these new regulations, government officials began to hold meetings to discuss what they would mean for their cities. Many cities established plans to either eliminate—or find alternatives to—lead piping for water distribution. Not all cities were equally concerned about the danger lead posed, or if they were, economic factors were of bigger concern. The cost to deal with the lead-pipe infrastructure would put a huge dent in neighborhood budgets, creating a risk of bankruptcy for local governments.  Many officials brushed aside the concerns of lead piping as a “want” for the city, rather than a “need.”

The new regulations soon came to the attention of another group of federal agencies, and in 1991 the U.S. Centers for Disease Control and Prevention (“CDC”) expressed their concern for lead poisoning. The CDC proposed lowering the level for individual intervention to fifteen micrograms per deciliter (“µg/dL”) and implementing lead-poisoning prevention campaigns in places where children had blood lead levels (“BLL”) greater than ten µg/dL.

This stance from the CDC caused the EPA to step up and play an even larger role in the lowering of BLLs. They did so by passing the Lead and Copper Rule (“LCR”) in 1991. This rule established requirements for corrosion control treatment; lead service line replacement, and public education. Despite the rule’s good intentions, the American Water Works Association (“AWWA”) brought suit against the EPA claiming it did not give proper notice for the updates. They also claimed that a public government agency did not have the authority to tear up private property to replace lead service lines. The AWWA prevailed in court and the LCR regulations were ruled unenforceable until the EPA properly submitted it with amendments and reasonable time limits. These amendments included many concessions, the most notable being the permission of partial pipe replacements.

Although the EPA passed the amendments in an effort to compromise and accommodate the monetary issues many cities faced with the complete removal of lead pipes, this type of repair proves to be an even larger issue than the pipes already contaminating water below the surface. As cities came to find out, partial pipe replacements allow for the resting lead sediments at the bottom of the pipes to be shaken up and then distributed into the consumer’s water supply, increasing lead sediment in water by a significant amount. Another form of partial repair involves connecting old lead pipes to new copper pipes using brass fittings. This quick-fix can accelerate galvanic corrosion, thus releasing an increased amount of lead into the service pipes. Partial replacements have become the unknown death sentence to many U.S. cities that utilize this money-saving method to “fix” the issues they have with rising BLLs.

Around this time local governments began scrambling to replace piping or come up with quick-fix alternatives to their original efforts in order to avoid sanctions from the EPA. Yet many cities also realized that the EPA only brought formal actions —compliance agreements, administrative orders with or without penalties, or enforcement actions in court — on ten percent of the violations in 2015. This reduced the motivational momentum that many local governments initially felt after the LCR was first introduced. As a result, many cities did not think twice about opting for cheaper partial replacements instead of complete system overhauls, despite the dramatic increase of health risks. The dangers of this cost-saving gamble backfired became all to clear with the Flint water crisis in 2014, where as many as 12,000 children were exposed to highly toxic levels of lead through drinking water.

On the other hand, one city in particular, Madison, Wisconsin, took the public’s good health to heart and replaced all of the city’s lead service pipes between 2001–2011. The city described the replacements as “noisy, messy, and disruptive, but successful.” Although the process was all of the above, the city’s actions dramatically reduced the risk of lead contamination in drinking water, and their residents have nothing to say about the decade of torturous upgrade but “thanks.”

Many other cities are still battling the EPA’s tighter restrictions. The most recent of these restrictions is the Reduction of Lead in Drinking Water Act (“RLDWA”) established in 2011. This honed in on the definition of “lead-free” which was previously allowing “lead-free” items to be composed of eight percent lead. The EPA scaled this number back to 0.25 percent, and in that same act, they prohibited the use or introduction into commerce of “[P]ipes, pipe fittings, plumbing fittings or fixtures . . . used exclusively for non-potable services such as manufacturing, industrial processing, irrigation, outdoor watering, or any other uses where the water is not anticipated to be used for human consumption.” In 2013 the agency added fire hydrants to that list through the Community Fire Safety Act (“CFSA”).

Denver has more than 3,000 miles of water mains, and Denver Water crews install or replace an average of 60,000 feet of pipe per year. Each piping project is completely different because of the conditions at the project site, and it continues to be an arduous task to fully replace the city’s pipes inside and outside of the home. The long history of lead pipes contaminating cities’ drinking water proves that the replacement of pipes is an expensive and disruptive task for local and state governments. Unknowingly, American citizens are still drinking water with lead percentages unfit for human consumption. Today, the EPA, AWWA, and the CDC formally recognize the issue, and together they are taking small, but steady steps with local, city, and state governments for the ultimate removal of lead pipes in cities. These agencies continue to brainstorm ways to police cities and prevent BLLs from reaching levels above zero simply because of drinking water. 

Rebecca Spence

Image: The District of Columbia Water and Sewer Authority replacing lead piping along Irving Street NW back in 2008. Flickr user IntangibleArts, Creative Commons.

Sources:

Lead and Copper Rule, EPA, https://www.epa.gov/dwreginfo/lead-and-copper-rule (last visited Oct. 11, 2016).

Section 1417 of the Safe Drinking Water Act: Prohibition on Use of Lead Pipes, Solder, and Flux, EPA, https://www.epa.gov/dwstandardsregulations/section-1417-safe-drinking-water-act-prohibition-use-lead-pipes-solder-and (last visited Oct. 11, 2016).

Safe Drinking Water Act (SDWA), EPA, https://www.epa.gov/sdwa (last visited Nov 4, 2016).

Kenneth Gray, The Safe Drinking Water Act Amendments of 1986, Envir. Law Rep. (1986), http://elr.info/sites/default/files/articles/16.10338.htm (last visited Nov. 4, 2016).

Richard Rabin, The Lead Industry and Lead Water Pipes “A Modest Campaign,”98 Am. J. Pub. Health (2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2509614/ (last visited Oct. 10, 2016).

Arthur Delaney, Lots Of Cities Have The Same Lead Pipes That Poisoned Flint The Huffington Post (Jan. 28, 2016,12:40 PM), http://www.huffingtonpost.com/entry/lead-pipes-everywhere_us_56a8e916e4b0f71799288f54.

Basic Information about Lead in Drinking Water, EPA, https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-drinking-water (last visited Oct. 14, 2016).

Brian Maass, Denver Water Steps Up Lead Pipe Removal, CBS DENVER (June 13, 2016, 11:50 PM), http://denver.cbslocal.com/2016/06/13/denver-water-steps-up-lead-pipe-removal/.

Bryce Covert, Dangerous Levels of Lead Have Been Found in Water Systems Nationwide ThinkProgress (June 28, 2016), https://thinkprogress.org/dangerous-levels-of-lead-have-been-found-in-water-systems-nationwide-5e43d5169a5e#.v4h4otxzp.

Darryl Fears & Brady Dennis, One City’s Solution to Drinking Water Contamination? Get Rid of Every Lead Pipe. Washington Post (May 10, 2016), https://www.washingtonpost.com/national/health-science/one-citys-solution-to-drinking-water-contamination-get-rid-of-every-lead-pipe/2016/05/10/480cd842-0814-11e6-bdcb-0133da18418d_story.html

Flint Water Crisis Fast Facts, CNN (Oct. 17, 2016, 3:21 PM), http://www.cnn.com/2016/03/04/us/flint-water-crisis-fast-facts/index.html.

Pipe Replacement, Denver Water, http://www.denverwater.org/ConstructionProjects/PipeReplacement/ (last visited Nov. 9, 2016).

Request a Lead Test, Denver Water, http://www.denverwater.org/waterquality/watersafety/leadcopper/lead-test-request/ (last visited Nov. 4, 2016).

Sheila Kaplan & Corbin Hiar, How an EPA Project Backfired NBC Investigations (Aug. 8, 2012, 5:08 AM), http://investigations.nbcnews.com/_news/2012/08/08/13179335-how-an-epa-project-backfired-endangering-drinking-water-with-lead.

Tiffany Stecker, Drinking Water: Federal Law Makes Lead-Pipe Removal Anything But a Cinch E&E Publishing (July 7, 2016), http://www.eenews.net/stories/1060039790.


Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173 (9th Cir. 2016) (holding that three federal agencies managing a dam did not violate the requirements of NEPA when they decided to fluctuate the level of a reservoir without filing an environmental impact statement because that decision was within the range of action originally available when the dam was first operational, and therefore, was not a major federal action).

The National Environmental Policy Act (“NEPA”) requires that federal agencies prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”  An EIS is a detailed study that examines the environmental consequences of an agency’s action.  To determine whether an EIS is necessary, Agencies prepare environmental assessments (“EA”).  In this case, the United States Court of Appeals for the Ninth Circuit decided whether the Bonneville Power Administration (“BPA”) violated the requirements of NEPA when BPA concluded in an EA that no EIS would be necessary to raise and lower the level of Lake Pend Oreille to generate power through the Albeni Falls Dam.

The Albeni Falls Dam (“Dam”) lies on the Pend Oreille River and operates to balance a variety of competing objectives including flood control, power generation, navigation, and wildlife conservation.  Lake Pend Oreille (“Lake”) serves as the Dam’s reservoir.  The Dam’s electricity output corresponds with the amount of water released from the Lake.  Higher output lowers the Lake and causes its shoreline to recede.

The Army Corps of Engineers (“Corps”), the BPA, and the Bureau of Reclamation jointly manage the Dam.  Since its completion in 1957, the Corps fluctuated the level of the Lake to generate power as needed during the winter months.  However, from 1997 to 2011, the Corps maintained the Lake at a constant level to mitigate adverse effects on the kokanee salmon population.

In 2009, the BPA advocated for more “flexible winter power operations.”  The operating agencies developed a new plan (the “Plan”), which preserved the Corps’ discretion to raise and lower the level of the lake by up to five feet during the winter.  Along with the Plan, the agencies published an EA in which they concluded that fluctuating the level of the Lake had no significant environmental impact.  The agencies moved forward without preparing an Environmental Impact Statement.

The Idaho Conservation League (“Petitioner”) challenged the agencies’ decision to move forward without preparing an EIS as a violation of the requirements of NEPA.  The Petitioner requested the court to require the BPA prepare an EIS.  The Petitioner also challenged the EA’s finding of no significant impact, claiming the agencies failed to consider the Plan’s impact on the spread of the flowering rush, an invasive species.  The court held the Plan did not violate the requirements of NEPA.

First, the court rejected the Petitioner’s EIS request, explaining that an action is not a major federal action when an agency operates a facility “within the range originally available to it,” and that the EIS requirement only applies where the proposed action is major.  Actions regarding ongoing projects can be major when agencies make changes that “themselves amount to major Federal actions.”  There was no change in the Plan.  In other words, the plan “did not change the status quo” because if the agencies had before consistently fluctuated the levels of the Lake during the winter, then formalizing the approach to fluctuation would be “doing nothing new, nor more extensive, nor other than that contemplated when the [Dam] was first operational.”  The court concluded the Corps never relinquished its discretion to fluctuate the level of the Lake from 1997 to 2011 when the agency maintained the Lake at a consistent level.  The court reasoned that because the agencies decided to maintain the lake at a consistent winter level on a year-to-year basis, that they had always retained the authority to respond to annual changes in power demands.  By rejecting Petitioner’s request, the court held all other challenges to the EA were moot.  Since the Plan did not trigger a major federal action, the agencies had no need to further consider the flowering rush.

Finally, the court noted that the Petitioner may have had a separate colorable claim if they had argued that the agencies must have supplemented an existing EIS with an analysis of how year-round dam operations affect the spread of the flowering rush.  Agencies have a duty to supplement if there are “significant new circumstances or information relevant to environmental concerns” that were not considered in an earlier EIS.  However, the court found that issue was outside the scope of the case and only raised on appeal.

Accordingly, the court held that the agencies’ decision to move forward with the Plan without preparing an EIS did not violate NEPA.

Trevor C. Lambirth

Image: Photo taken by Roland Taylor of Lake Pend Oreille in Northern Idaho. Flickr user U.S. Department of the Interior, Creative Commons.