Upper Eagle Reg’l Water Auth. v. Wolfe, 371 P.3d 681 (Colo. 2016) (holding that an owner of multiple water rights can choose to divert and make absolute any of its in-priority, conditional water rights and is not required to make absolute a senior conditional water right before a junior conditional water right, so long as the owner lives with his or her choice and does not injure the rights of other water users).

Effective as of March 25, 2004, the Upper Eagle Regional Water Authority (the “Authority”) formed a water service agreement with the Edwards Metropolitan District and the Cordillera Metropolitan District.  Under the agreement, the Cordillera Metropolitan District gave certain water rights and facilities to the Authority, which in turn provided water services to the Cordillera area.  The rights conveyed to the Authority included the SCR Diversion Point No. 1 conditional water right (the “Senior Lake Creek Right”), with a priority year of 1989, and the Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”), with a priority year of 1991.  Pursuant to the agreement, the Authority would limit use of both conditional water rights to irrigation, domestic, commercial, and fire protection purposes, with diversions to occur at the Edwards Drinking Water Facility.

On July 4, 2004, a day on which there was no call on the Colorado and Eagle Rivers, the Authority diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River for beneficial use in the Cordillera area.  The Authority allocated 0.47 cfs of this diversion to its Junior Eagle River Right.  On December 29, 2004, the Authority filed an Application for a Finding of Reasonable Diligence and to Make Water Right Absolute (“Application”).  The Application requested confirmation that the Authority had made absolute 0.47 cfs of the Junior Eagle River Right at the Edwards Drinking Water Facility for irrigation, domestic, commercial, and fire protection purposes during free conditions.  The State and Division Engineers (the “Engineers”) opposed the Application.

The Engineers initially argued the Authority must make diversions in accordance with the “seniors first” policy, requiring that users first attribute diversions to senior absolute water rights, then to senior conditional rights, and finally, junior conditional rights.  A Water Court granted the Engineers’ motion for summary judgment in part and denied the Authority’s claim for making 0.47 cfs of the Junior Eagle River Right absolute.  The court held the Authority did not have discretion to choose a junior water right over a senior water right when both rights decreed the same point of diversion for the same purposes at the same place of use.

The Authority appealed the Water Court’s decision, arguing that it should have the discretion to choose the conditional water right it wants to divert and use.  The Colorado Supreme Court reviewed de novo the Water Court’s conclusions of law.

The Court only examined whether Authority had to attribute its diversion to a senior water right.  The Engineer partially based its argument on a previous Colorado Supreme Court holding, which required that applicants seeking to make a conditional water right absolute first show they appropriated water in excess of an existing absolute decree.  The Court rejected that argument by distinguishing the facts of this case as involving a choice between two conditional rights rather than a choice between a conditional right and an absolute right.  The Court reasoned that the previous case was not compatible, because the Authority had to attribute one of its conditional rights to a needed water diversion.

The Engineers then argued that application of a “seniors first” policy here would help effectively administer the prior appropriation system and “correctly express” the Colorado Constitution and state statutes.  The Engineers believed that if the Court allowed the Authority to freely select among its conditional water rights, the Authority could change its attribution of diversions from one day to the next.  The Engineers claimed that this potential behavior was dangerous because it could allow the Authority to make absolute more water rights than it actually needed.  The Court did not accept the Engineers’ argument.

The Court ruled that once the Authority makes 0.47 cfs of the Junior Eagle River Right absolute, it must live with that choice; the only way the Authority could later perfect its other conditional water rights is through showing with quantifiable evidence that it requires more water than 0.47 cfs of the Junior Eagle River Right to fulfill the need of the Cordillera area.  The Court summarized that, absent any evidence of waste, hoarding, or injury to the rights of other water users, the Authority may choose which of its conditional water rights it wishes to divert and make absolute.

Accordingly, the Court reversed the order of the Water Court that the July 4, 2004 diversion must be allocated to the Senior Lake Creek Right, and remanded the case with instructions to make 0.47 cfs of the Junior Eagle River Right absolute.

Tina Xu

Image: Flowing water on the way up to Hanging Lake located in Glenwood Canyon, Colorado. Flickr User Zach Dischner, Creative Commons.


Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134 (1st Cir. 2016) (holding that a real estate developer and home builder failed to state facts sufficient to establish a facially plausible claim to relief in their complaint, which alleged that a water district and its superintendent deprived them of federal and state constitutional rights when the superintendent raised valid objections of public concern against the construction of a subdivision).

In 2012, Najas Realty, LLC (“Najas”) purchased a ten-acre parcel of land (the “Property”) in Seekonk, Massachusetts (the “Town”) and filed a preliminary subdivision plan application to develop a ten-lot subdivision (the “Pine Hill project”).  The Seekonk Board of Health met to discuss the application.  The Seekonk Water District’s Superintendent, Robert Bernardo, attended the meeting and expressed concerns that Pine Hill project could potentially impact one of the Town’s wells, Well GP-4.  Bernardo asserted that a malfunctioning septic system servicing a nearby middle school caused high nitrate levels in the soil around GP-4.  As a solution, the Board of Health required that Najas perform a nitrate loading analysis.

After the Seekonk Board of Health initially met, Bernardo expressed concerns at two other meetings that the Pine Hill project’s septic system could increase nitrate levels and expose unborn babies and nursing infants to “Blue Baby Syndrome,” and that nitrate contamination requires high clean-up costs.  Najas rejected these claims.

After these meetings, Najas completed its nitrate loading analysis and submitted a definitive subdivision plan. Najas claimed the plan satisfied regulatory requirements for septic systems and kept nitrate levels in the GP-4 area within regulatory limits.  The Board of Health initially voted to approve the analysis.  After approval, the Planning Board held a public hearing. At the hearing, Bernardo claimed the nitrate loading analysis’ data was false.  In response, the Planning Board reviewed and denied the Pine Hill project.  Najas then appealed to the Massachusetts Land Court.

The appeal led to a settlement allowing Najas to proceed if it reduced the number of lots from ten to nine and shortened the subdivision’s road length.  The Planning Board reviewed the revised plan at another public meeting.  Bernardo again attended and voiced concerns about water contamination issues.  The Planning Board approved the revised Pine Hill project.  The Seekonk Water District then filed a petition to the Planning Board to rescind or modify the approved plan.  The Planning Board denied the petition, and the Pine Hill project continued in accordance with the revised plan.

Najas, joined by Petra Building Corporation (“Petra”) (collectively, “Plaintiffs”), filed a complaint in the United States District Court for the District of Massachusetts against the Seekonk Water District and Bernardo (collectively, “Plaintiffs”), asserting claims under the United States Constitution and analog claims under the Massachusetts Constitution.  The complaint asserted: (1) Defendants retaliated against the Plaintiffs for asserting First Amendment rights to petition and freedom of speech; (2) Defendants violated Plaintiffs’ Fourteenth Amendment equal protection rights by singling them out; (3) Defendants violated Plaintiffs’ Fourteenth Amendment due process rights by opposing the plan; and (4) Defendants tortuously interfered with Plaintiffs’ business.  The district court granted judgment on the pleadings in favor of the Defendants, stating that Najas and Petra failed to state a viable claim.  Subsequently, Plaintiffs submitted a second complaint, which the district court also dismissed in a final judgment.

Plaintiffs appealed to the United States Court of Appeals for the First Circuit, claiming the district court required too much at the pleading stage and the complaint was sufficient to deny a motion for judgment on the pleadings.  The court reviewed the appeal de novo.

The court started its analysis noting that for constitutional claims under 42 U.S.C. § 1983, plaintiffs must prove the conduct complained of was committed under color of state law and that the conduct worked as a denial of rights secured by the United States Constitution.  The court accepted that Bernardo acted under the color of state law, and proceeded by determining whether he encroached on the Plaintiffs’ constitutional rights.

To begin, the court analyzed whether Bernardo had retaliated against the Plaintiffs’ First Amendment right to petition and freedom of speech.  The court stated a cognizable retaliation claim under the First Amendment requires plaintiffs show the conduct was constitutionally protected and that a causal connection existed between the protected conduct and the retaliatory response.  The court found it was unclear whether Najas’s conduct was protected petitioning conduct or free speech comprising commentary on a matter of public concern.  Instead, the court evaluated the test’s second prong, whether the Plaintiffs had established a causal connection between the protected conduct and the retaliatory response.

For this element, Najas pointed to Bernardo’s accusation that the data submitted for the Pine Hill project was “fabricated, false, inflammatory, and baseless.”  The court first discussed the retaliatory conduct and found the record offered no indication that Bernardo did not genuinely hold his concerns.  Graphs revealed “variable and sometimes excessive” nitrate levels from in the monitoring the area dating back to 1995.  The record also showed that members on the Board of Health previously expressed concerns regarding nitrate levels before Bernardo spoke at the initial meeting.  The court also took judicial notice that the Environmental Protection Agency has linked excessive nitrate levels to Blue Baby Syndrome and that nitrate contamination requires high clean-up costs. Therefore, the court found the Plaintiffs’ allegations of retaliatory conduct were conclusory and that Bernardo had a duty to raise objections about potential public health impacts that he believed were valid.

The court then discussed whether Bernardo violated the Defendants’ protected First Amendment right to free speech on a matter of public concern.  Matters of public concern are those “relating to any matter of political, social, or other concern.”  The court found Bernardo had not committed such a violation because, as superintendent, he had an obligation to speak out on matters of public concern.

Next, the court analyzed the claim that Bernardo violated the Plaintiffs’ Fourteenth Amendment equal protection rights by singling them out for unique reasons.  To prevail on this claim, the complaint had to show the Defendants were motivated by bad faith or malicious intent to injure when they treated the Plaintiffs differently from others similarly situated and without a rational basis for doing so.  However, the court found the Plaintiffs failed to explain how other developers and builders were similarly situated because they did not provide basic information, such as when other projects were located, and when they were built.

After the equal protection claim, the court examined the Plaintiffs’ substantive due process claim under the Fourteenth Amendment.  To assert a viable substantive claim, plaintiffs must prove deprivation of an established life, liberty, or property interest, and that the deprivation occurred through governmental action that shocks the conscience.  The court found it unclear what deprivation occurred, and noted the Plaintiffs “oddly” claimed that by opposing the project, Defendants deprived them of life and liberty.  The court instead analyzed the claim as a deprivation of property.

Substantive due process claims regarding deprivation of property cases are only available in “horrendous situations.”  The court found that, at worst, the Defendants actions were “doggedly persistent,” and this did not amount of “brutal, meaning, and harmful” conduct as is necessary in such a claim.

Finally, the court analyzed the Plaintiffs’ claim that Bernardo intentionally interfered with a business expectation, opportunity, and advantage.  Here, the court addressed whether Bernardo’s actions directly attempted to interfere with business relations.  The court granted Bernardo immunity for his actions under Massachusetts common law, where public officials who act in good faith and exercise judgment and discretion are not liable for errors in making decisions.  Here, the court again stated that the Plaintiffs’ complaint failed to state a plausible claim for bad faith or malice intent.

Accordingly, the court affirmed the order of the district court.

Kole Kelley

Image: Drawbridge on the Seekonk River, a tidal extension of the Providence River. Flickr user rprata, Creative Commons.

 


24th Annual American Bar Association Environmental, Energy, and Natural Resources Law Fall Conference

Denver, Colorado                                October 5-8, 2016

A Glass Half Empty – Flint, Environmental Justice, and America’s Drinking Water Infrastructure Problem

At the 24th Annual American Bar Association Environmental, Energy, and Natural Resources Law Fall Conference in Denver, a panel of three professionals in the field of environmental justice tied themes of environmental justice to the history, issues, and lessons learned from the recent drinking water crisis in Flint, Michigan.

Randy Hayman, from Beveridge & Diamond in Washington, D.C., opened by stating that the Safe Drinking Water Act (“SDWA”) is the most important piece of legislation the United States Congress has ever passed, because “water is life.” The SDWA gave U.S. citizens assurance that their water would not be contaminated by anything that could cause serious health problems. Considering the necessity of water to human survival, Hayman said the SDWA is inherent to environmental justice.

The majority of Hayman’s statements were about the history and execution of the SDWA. Many regulatory checks were put in place by Congress to ensure that everyone is confident their water is safe to drink and use for everyday needs. Other than wells serving fewer than twenty-five people, every public water system is subject to the rules of the SDWA, and failure to meet the standards set forth by the law can result in fines of $25,000 per day. The damage does not just end at the fine, however. Public confidence in officials erodes when a community violates SDWA rules. Therefore, public officials face the dilemma of whether to publicize the existence of a water crisis, because failure to solve the problem swiftly result in the public’s trust quickly diminishing.

The moderator asked Hayman to elaborate on the Lead and Copper Rule, a health standard that minimizes the amount of those contaminants in public pipelines. Lead and copper particles enter the water stream from pipes, pollution, and natural processes. As long as the amount of either remains below a specified “action level,” the water is still considered safe for human consumption. An action level is an amount of contamination that will require additional action from water system administrators, including treatment, public notification, or exposure minimization. Exceeding an action level is not a violation itself—nor is it necessarily a health and safety hazard—but it could indicate the existence of a water-pollution problem. According to Hayman, because education about safe contaminant levels is insufficient, news of a community’s water getting contaminated at all sometimes causes panic. Hayman suggested officials should take greater steps to inform the public about lead and copper, since it is only when those measurements rise to very high levels that they become a potential threat to health.

The second speaker was Quentin Pair, a professor of environmental justice at Howard University School of Law who also works in the environmental justice division at the Department of Justice. According to Pair, environmental justice is the civil rights of the Twenty-First Century. In his discussion, Pair said the themes of the civil rights movement are tied directly to modern environmental justice because the Environmental Protection Agency’s definition of environmental has very similar language to Title VI of the Civil Rights Act – equal treatment is emphasized in both. He mentioned how critical it is to consult the general public first about environmental issues, rather than waiting for elected officials to take notice. He believes grassroots organizing can begin to solve environmental problems much more efficiently and effectively than any other public resource because local community members know which issues are most important to their neighbors than elected officials.

As part of his discussion, Pair shared the story of the beginning of modern environmental justice in Warren County, North Carolina. Beginning in 1973 a large landfill was used to dispose of contaminants without the knowledge or consent of one of the poorest counties in the state, the populations of which were more than seventy percent black at the time. This controversy was addressed in several lawsuits, including United States v. Ward in 1982. This trend has since continued, and three out of every four disposal facilities in the country are located in minority and low-income communities. According to Pair, race is the most significant determinant of the location of these disposal facilities across the country. He said that in order to talk about environmental justice, it is impossible not to consider how much damage environmental racism has caused.

Michelle Wilde Anderson, a law professor at Stanford who focuses on state and local government, was the final speaker on this panel. She brought the discussion full-circle by connecting what the other speakers discussed to the Flint crisis. She described the professionals who initiated the documentation of the contaminated drinking water in Flint, including a pediatrician who investigated the doubling and tripling of lead levels in her patients’ blood. Those professionals did what Pair criticized public officials for not doing: they listened to the community and learned what was wrong.

Wilde Anderson also described how the cause of the crisis was a revenue problem rather than a spending problem. Because of an abundance of deferred spending and loans in the 1970s, Flint did not have the resources to meet local needs. Public infrastructure suffered as a result of the lack of resources, and old systems that were not properly maintained grew more vulnerable to leaking contaminants over time. Ultimately, she said, the decision to rebuild these outdated infrastructure systems is left to the taxpayers, and the longer those systems go without repair the more likely health hazards are to occur in the near future. Wilde Anderson views Flint as a warning or a wake-up call to the nation because old pipeline systems will fail without better and more regular maintenance.

The panel then accepted questions from the audience. One audience member asked how federal agencies, including the Environmental Protection Agency (“EPA”), could do a better job dealing with environmental injustice. Pair suggested those problems could not be solved without providing more funding for environmental justice, which Congress has denied. He further noted that many communities do not trust the federal government to solve all of their problems, so the EPA currently has neither the political nor the financial support needed to tackle those issues. Another audience member asked how local communities can recognize access to safe drinking water as a basic human right. Wilde Anderson answered by saying that leaders do not try hard enough to make water available to communities that cannot afford it, so communities fall short of recognizing access to safe drinking water as an essential human right. The costs associated with delivering water to these communities are high, and not many cities have completed these critical delivery infrastructure projects.

Travis Parker

Image: “There’s Something in the Water.”  Property of Live Once Live Wild, Creative Commons.


6th Annual Carver Colloquium

Denver, Colorado                                September 29, 2016

Water for Sale: Prior Appropriation or Free Market Trade?

The Rocky Mountain Land Use Institute hosted the sixth annual Carver Colloquium on September 29, 2016. Former Colorado Supreme Court Justice, Gregory Hobbs, and Professor Gary Libecap, of the University of California, Santa Barbara Bren School of Environmental Science and Management, compared the relative merits of the prior appropriation system and the free market system of water allocation.  The debate over which system of water allocation is better suited for today’s environmental realities quickly evolved into an in-depth discussion about the advantages and disadvantages of the doctrine of prior appropriation, as well as an insightful comparison between Colorado’s use of prior appropriation and California’s hybrid utilization of prior appropriation and riparianism. University of Denver Sturm College of Law professor Jan Laitos moderated the event, which consisted of a ten-minute opening comment by each speaker, followed by three discussion questions from Professor Laitos, and a thirty-minute session in which the speakers answered questions from the audience.

Justice Hobbs began by reciting a poem and providing a brief history of water law in Colorado.  He discussed how the terrain of the American West requires the prior appropriation system of water allocations because the riparian system is not realistic in a place where the few sources of water are scattered across an arid landscape.  Water rights, he said, are for the beneficial use of the people, and Colorado’s historical use of the prior appropriation doctrine reflects that reality.

Professor Libecap followed Justice Hobbs’ introduction with a brief explanation of California’s current approach to water allocation.  In California, the riparian doctrine is still used in conjunction with the prior appropriation system.  The state owns the few large water projects that serve the main metropolitan areas, and contracts between water rights holders in the water-rich north and the water-scarce south tend to result in unfair distributions to the detriment of southern water users.  This complicated situation has led to heavy reliance on groundwater supplies, which has caused severe shortages.  Professor Libecap noted that the doctrine of prior appropriation is not to blame for California’s drought situation.  Instead, Mr. Libecap pointed to the ill management of water supplies by state legislators and municipalities.

After the introductory remarks, Professor Laitos directed his first question to the two speakers: Could a “water markets” system or “water capitalism”—where water rights are bought and sold like a commodity—ever replace the prior appropriation system?  Justice Hobbs began by stating that water rights are a type of property right and such rights cannot be bought and sold like a product or commodity.  He said he did not believe system in which water was bought and sold like a commodity could be successful, especially in Colorado because water rights are a public good determined by beneficial use, and although water rights can be owned, the use of such a right is dependent on use by all other owners.  While prior appropriation is an adaptable system and could promote a “water market,” water rights could never be traded like other commodities.  Professor Libecap did not view the prior appropriation system as significantly different from a “water market.”  He noted that there have been many water contracts created in California, and said water acting as a commodity in a water market promotes a more versatile system, with more cooperation between water-rights owners.  Legislators in California are considering the use of legislative mandates to control the current water shortage, but Mr. Libecap insisted that this kind of approach would be unmanageable and inflexible for responding to market and climate changes.

Professor Laitos then asked whether it is old fashioned that in 2016, when our society is more technologically advanced, the largest and most senior water rights holders are still ranchers and farmers as opposed to factories and production sites.  Justice Hobbs argued that Colorado should remain true to its roots, saying that although Coloradans need to find a way to meet the growing water demands of booming urban areas, they should not do so at the detriment of older agricultural water rights holders.  Professor Libecap claimed that the media is misinformed about the actual amount of water used by agricultural producers.  Californian farmers are not opposed to trading or sharing water rights with the urban population; their main concern is that the state legislature will see them as old fashioned and outdated, and will proceed to forcefully take their rights away and reapportion them to others.

Professor Laitos’ final question was whether the speakers believed that the prior appropriation system is equipped to accommodate the countervailing needs of the environment—keeping water in the stream to protect water quality and aquatic wildlife—and of making sure a senior appropriator has enough water—even if it means dewatering that stream? Justice Hobbs responded that prior appropriation is equipped to deal with environmental concerns but that it comes at a cost.  He pointed out that federal legislation has created permitting regulations that overlay Colorado’s prior appropriation system for any new major water projects, but those processes can take fourteen to eighteen years.  Because of the increasing difficulty and uncertainty associated with getting those supplies through new transbasin or storage projects, Front Range municipalities are forced to turn to accelerated water-market acquisition, stoking the fears of buy and dry on the Eastern Plains. Professor Libecap agreed that prior appropriation is perfectly set up to deal with environmental flows. Nevertheless, he cautioned against states like California turning to solutions that involve issuing mandates to protect stream flows, which he called a tax on senior rights holders and one that causes endangered species to become the enemy, thus creating a conflict between local and environmental objectives. Instead, he argued, if states really want to protect stream flows in the long term, they need to turn to market solutions like leases, option contracts, or outright sales to protect that water. That way the environment “owns” it and the farmers benefit financially, both of which prevent the type of conflicts mandates will have down the road.

In the final portion of the debate, the audience asked questions of the speakers. Justice Hobbs clarified that the prior appropriation doctrine used in Colorado does not create the “use it or lose it” problem because the key concept of the prior appropriation system is beneficial use. Applicants are only required to show actual use (historic consumption) and what is left over returns to the stream for the public; thus, nothing is lost.  Then, Professor Libecap commented that the hybrid system currently used in California, when compared to the much more streamlined Colorado system, lacks the clear statutory structure and direction required to create an active and effective “water market.”  Professor Libecap also assuaged the general fear that recreational or aesthetic water use in times of drought are frivolous by noting that such uses are so minuscule that they do not have much impact on broader water issues.  Finally, Justice Hobbs advised that the only problem with the prior appropriation system is management and enforcement of the system; he felt that the government sometimes gave in to pressure from private parties, which decreases the effectiveness of the system.  Justice Hobbs proposed that more administrative control in the future should combat this governmental failing and make the prior appropriation system more successful.

Tina Xu

Image: The Colorado River. Flickr User Rennett Stowe, Creative Commons

 

 


Water, Oil, and Tribal Sovereignty: 

The Fight for the Dakota Access Pipeline

Denver, Colorado

On September 27, 2016, the University of Denver Sturm College of Law hosted a panel discussion about the current legal fight over the Dakota Access Pipeline in North Dakota.  The panel addressed legal, historical, social justice, and environmental justice topics related to the dispute.  The discussion was co-sponsored by DU’s Natural Resources & Environmental Law Society, Native American Law Students Association, and the DU Water Law Review.

Professor Fred Cheever, a DU Law professor and co-director of the school’s Environmental & Natural Resources Law Program, moderated the discussion and introduced the issue. The Dakota Access Pipeline (“DAPL”) is an approximately 1,170-mile pipeline constructed to transport crude oil from North Dakota to Illinois.  The pipeline’s path is intended to span four states—North Dakota, South Dakota, Iowa, and Illinois—and cross the Missouri River at a point located a half-mile from the Standing Rock Indian reservation in North Dakota.  The DAPL route would pass through tribal lands of great cultural, religious and spiritual significance to tribes.

Professor Brad Bartlett, a visiting assistant professor in the Environmental Law Clinic at DU Law, offered a timeline of events regarding the DAPL legal conflict. In July 2016, Earthjustice, on behalf of the Standing Rock Sioux Tribe, filed a declaratory and injunctive relief complaint in U.S. District Court for the District of Columbia (Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers).  The Cheyenne River Sioux Tribe intervened and joined the lawsuit in August 2016.  In the initial complaint, the Standing Rock Sioux Tribe argued that the U.S. Army Corps of Engineers (“Corps”) violated multiple federal statutes, including the Clean Water Act, National Historic Protection Act, and National Environmental Policy Act, when it issued permits to move forward with construction of the DAPL. First, the DAPL’s route is intended to pass under the Missouri River just a half a mile upstream of the Standing Rock Sioux Tribe’s reservation boundary. A federal permit is required under the Clean Water Act for any construction project impacting federally regulated rivers —including the DAPL’s crossing of the Missouri River. In this case, the permitting process triggers requirements under the National Historic Protection Act that intend to protect areas of great cultural significance to the Standing Rock Sioux Tribe, such as sacred sites and burial grounds.  The Tribes argue that the Corps pre-authorized construction of DAPL without ensuring compliance of the National Historic Protection Act, allows the Corps to circumvent its statutory responsibility to ensure that the DAPL does not harm historically and culturally significant sites. The Tribe’s injunctive relief complaint seeks to stop the DAPL from proceeding and causing irreparable harm.

Professor Bartlett oversees DU law students in the environmental law clinic who worked in conjunction with Fredericks Peebles & Morgan LLP, a national Indian law firm, to file a complaint on behalf of the Yankton Sioux Tribe on September 8, 2016, for declaratory and injunctive relief in U.S. District Court for the District of Columbia (Yankton Sioux Tribe v. U.S. Army Corps of Engineers) to stop construction of the DAPL.  The Yankton Sioux Tribe Reservation is located in South Dakota along the Missouri River.  The complaint seeks to prevent the Corps and other federal agencies from violating the National Historic Preservation Act, the National Environmental Policy Act (“NEPA”), the Clean Water Act, the 1851 Treaty of Fort Laramie, and the Administrative Procedures Act.  Specifically, NEPA requires a federal agency to complete an environmental impact statement, including public engagement and detailed comparison of alternatives.  Additionally, the complaint requests that the Corps engage in a more meaningful consultation process with the tribal communities.  Professor Bartlett noted that neither has happened as of September.

On September 9, 2016, U.S. District Court Judge James Boasberg denied the tribes’ motions for an injunction.  Immediately following this decision, the Justice Department, the Department of the Army, and the Department of the Interior issued a joint statement moving to stop construction of the DAPL on land near the Standing Rock Indian Reservation until the Corps could revisit and reconsider previous decisions under federal laws.  The joint statement also requested that tribes and government agencies meet to evaluate the current government-to-government consultation and to determine how to better include tribes in decision-making processes concerning pipeline construction.

Professor Bartlett also noted that the tribal response to the construction of this pipeline has resulted in the largest congregation of Native Americans in the past 100 years.  Police and private security forces have responded with arrests and violence to tribes’ peaceful acts of civil disobedience. As of September 2016 a prayer camp still remains in the area with ongoing protest demonstrations.

The second panelist, Dr. Angel M. Hinzo, is a Postdoctoral Fellow in Interdisciplinary Indigenous Studies at the University of Denver Interdisciplinary Research Institute for the Study of (In)Equality (IRISE) focusing on Native American history from the mid-19th century to the present.  In the panel, Dr. Hinzo recounted how the history of U.S. governmental and tribal relations is characterized by contrasting, and often conflicting, worldviews.  She said the federal government’s extraction of natural resources embodies western values of exploitation for economic gain.  For example, proponents of the DAPL have framed the project as benefiting the public good by creating jobs during the construction phase of the pipeline and contributing to federal sales and income taxes. Tribes, on the other hand, view the same natural resources, as sentient beings to be respected and revered, not exploited. The current DAPL conflict illustrates this fundamental difference in worldview because the pipeline would transport crude oil over an area rich in cultural and natural resources.  Historically, according to Dr. Hinzo, the Corps—the oldest agency dealing with natural resources in the United States—has harmed native lands and the environment.

Additionally, Dr. Hinzo raised concerns that the construction of pipeline threatens local tribal burial sites.  In September 2016, the pipeline construction company—Dakota Access LLC—destroyed burial sites near the Standing Rock Indian Reservation to build the DAPL.  Dr. Hinzo emphasized that the Native American Graves Protection and Repatriation Act (“NAGPRA”) provides regulations to protect culturally significant sites during infrastructure projects, which the Corps and pipeline workers did not respect. Dr. Hinzo also argued that discussions around the DAPL need to better address the NAGPRA. Lastly, Dr. Hinzo noted the social costs associated with the oil-and-gas boom in North Dakota. Communities living near fossil fuel extraction have witnessed an increase in violence and sex trafficking.  Low income tribal communities living near the proposed route of the DAPL, who already experience difficulty with these issues, are increasingly at risk.

The panel’s third speaker, Mr. David Neslin, is of counsel at Davis Graham & Stubbs LLP in Denver, Colorado.  He previously managed the Colorado Oil and Gas Conservation Commission within the state’s Department of Natural Resources, which regulates all oil and gas development in Colorado.  During his career, Mr. Neslin has also represented multiple tribes in natural resource–extraction issues.

First, Mr. Neslin noted that the sole issue of the preliminary injunction action was whether the Corps violated federal laws when it issued permits allowing construction of the DAPL to move forward.  In general, preliminary injunctive relief actions seek to halt a project and maintain the status quo until the court has a chance to go through the full litigation process and resolve the issue.  Consequently, the court’s denial of the injunction in this case was a narrow decision because it did not go to trial or produce a full development of record.  Next, Mr. Neslin spoke about the importance of the administrative record to the court’s decision and how this case represents a good example of why it is vital for parties to develop and convey a cohesive narrative to the court.  While people can disagree about the substance of such records, he said that the Corps adequately documented its compliance and “checked all the boxes” needed to comply with federal regulations as to tribal consultations and environmental impacts of the DAPL.  As noted earlier, the federal government is required to provide permits under the Clean Water Act to allow the DAPL to move forward, triggering requirements under the National Historic Protection Act to ensure proper treatment of sacred sites.  Because the Corp followed and completed steps outlined in the permitting process, Judge Boasberg denied the tribes’ motions for an injunction.  Mr. Neslin argued that it was the Department of Justice’s multiple affidavits, for example, that illustrated the ways in which the Corps took the proper steps in allowing the DAPL to move forward.  The tribes, he said, could have done a better job of illustrating and citing examples to the court of the DAPL’s impacts on tribal cultural resources.  Finally, Mr. Neslin noted that the district court opinion serves as a reminder of the potency of judicial deference toward agency decision making in cases like this.  Traditionally, courts defer to agencies—such as the Environmental Protection Agency—to determine whether infrastructure projects have followed proper procedure when considering environmental and cultural impacts.  When not one overarching agency exists to ensure proper compliance, as in the case of the DAPL, multiple federal agencies follow their own processes when dealing with a discrete aspect of the overall project.  Mr. Neslin said that federal segmentation of this kind results in piecemealed environmental and cultural impact assessments, overlooking the potential for studying the impacts of the project as a whole.

The final panelist, Ms. Heather Whiteman Runs Him, is a staff attorney at the Native American Rights Fund (“NARF”) in Boulder, Colorado, where she works on tribal water and natural resource rights issues.  She provided an overview of tribal water rights and upcoming meetings between tribes and the U.S. government to evaluate current administrative consultation requirements.  Ms. Whiteman Runs Him explained that NARF’s role in the current DAPL actions is to coordinate multiple amicus briefs in support of tribes’ ongoing defense. Ms. Whiteman Runs Him explained that the foundation of tribal water rights under federal law rests on the Winters Decision, which says that the establishment of an Indian reservation includes an implied reservation of water for future use in an amount necessary to fulfill the needs of the reservation.

While Winters recognized tribal rights to water, Ms. Whiteman Runs Him noted, some tribes are working with state and federal governments to quantify their water rights and build water infrastructure in order to put their water to use.  Currently twenty-nine tribes have settled their water rights, while many more have not.  Settlement negotiations are generally expensive, lengthy, and multi-step processes that involve analyzing the land base of the reservation, hydrology, soil science, economics, etc. Ms. Whiteman Runs Him emphasized that neither the Standing Rock Sioux Tribe nor the Yankton Sioux Tribe have either quantified or settled their reservation water rights, but that does not diminish the Tribes’ rights to a reliable and safe water supply for their citizens.  These tribes have concerns about the DAPL’s affect on their water supply because the pipeline’s proposed route traverses the Missouri River, a major municipal water source to the Standing Rock Indian Reservation, directly upstream from the Standing Rock Sioux Tribe Reservation, and the point of diversion for its drinking water.

Ms. Whiteman Runs Him explained that federal agencies are required to establish policies and procedures to meet the consultation standards of the National Historic Protection Act.  Most federal agencies have established such policies; the Corps, however, has a history of failing to comply with federal standards in regard to tribal sovereignty.  Ms. Whiteman Runs Him believes that federal agencies need to “make the letter of the law match the spirit of the law” by not only requiring the Corps meet requirements of the administrative process, but also implementing requirements in a way that is meaningful to the intent of the regulations.

One major point illuminated throughout the panel discussion and the question and answer period is the adequacy of a permitting process that allowed the DAPL to move forward in the face of federal trust obligations to tribes.  As previously mentioned, the permitting process for the DAPL requires certain mitigation activities under federal regulations to ensure proper treatment of sacred sites.  While federal agencies may have completed the required steps to receive permits, the tribes argue that such steps lack substance and do not adequately and meaningfully consider tribal input.  While the permitting process may be administratively sufficient, many question whether the process actually fulfills spirit of the federal trust obligations to substantively consult and include tribal input.

Lindsey Ratcliff

Image: The Dakota Access Pipeline being installed between farms, as seen from 50th Avenue in New Salem, North Dakota. Flickr user Tony Webster, Creative Commons.


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

Denver, Colorado                          April 8, 2016

WHAT’S AT STAKE IN THE NEGOTIATION AND LITIGATION OF INTERSTATE WATER COMPACTS?

The final panel of the Symposium  reflected on all the concepts discussed throughout the day, and provided great insight for the future of interstate water compacts.

Professor Jason Robinson, of the University of Wyoming Law School, moderated the three-member panel through a series of pre-scripted questions and insightful answers from each of the panelists.  The panel included: David Robbins of Hill and Robbins, P.C.; Chad Wallace of the Office of the Colorado Attorney General; and Christine Klein of the University of Florida Levin College of Law.

Question 1: “Broadly speaking, what do you view as the most significant shortcomings in the processes by which existing interstate water compacts were negotiated?”

Klein, bringing her perspective from her current work in Florida, said that past compact negotiators “ignored the hard stuff,” and suggested that future negotiations should address those difficult issues while momentum driving the negotiations exists.  Wallace next observed that existing compacts did not “leave enough room” to address future water uses between the parties, such as groundwater use developments and hydrologic interactions.  Robbins concluded by reiterating Wallace’s observations.  He also addressed the fact that existing compacts do not generally include effective dispute resolution mechanisms or grievance processes.

Question 2: “How exactly have these shortcomings in the negotiations been detrimental to the composition and administration of existing compacts?”

Robbins answered first, continuing his line of thought from the last question.  He stated that sovereigns do not want to “give up sovereignty unless they do it intentionally and by their own control.”  With this understanding, Robbins argued that earlier compact negotiations failed to establish dispute resolution mechanisms because these mechanisms intrude on state sovereignty and are outside that state’s decision-making control.  Wallace agreed with Robbins and observed an unwillingness in party states to engage in dispute resolution in the face of ambiguities or unforeseen challenges in the compact’s administration.  Wallace reiterated the difficulties in finding mechanisms to address groundwater use on surface flow.

Klein furthered the conversation on dispute resolution mechanisms by using the Delaware River Basin Compact as an example: the commission implementing that compact has the authority to regulate withdrawal permits, rather than the states.  She then discussed the St. Lawrence-Great Lakes Compact that creates “common minimum standards” and some adjudicatory authority of the commission to address disputes.  Using these more recent compacts, Klein suggested that eastern states that do not have a history of, nor existing, compacts, can look to these unique approaches for problem-solving as they craft new compacts. For example, Klein suggested new compacts could be “tailored” to the “character and flavor and history of the states involved.”  Wallace again reminded the audience that compacts are voluntary concessions of state sovereignty, and those compacting states can engage in that process however best meets their needs.

Question 3: “What is the most important lesson you believe can be gleaned from interstate water compact litigation in the U.S. Supreme Court over the past two decades?”

Wallace joked that “the justices don’t really like to see us.”  He stressed that, because litigation can lead to rigid imposed apportionments, the threat of litigation is an effective tool to “get everyone’s attention” and bring stakeholders to the negotiating table.  Klein emphasized the importance of personalities and personal relationships in compact administration because “compacts are a marriage to death do us part.”  Robbins strongly agreed with Wallace’s previous observation that courts interpret compacts as contracts.  Robbins further argued that such interpretations cannot account for issues of state sovereignty.  Finally, Robbins reminded the audience that there is no “right answer” in interstate water compacts and that compacts are “about making a deal” between sovereigns.

Question 4: “Do you anticipate an increase or decrease in interstate water compact litigation in the future, and which factors do you consider most determinative?”

Wallace expressed optimism that compact administrators are learning to work collaboratively and “keep their options open.”  He referred back to his earlier point, that litigation will likely be a tool to induce negotiations between parties.  Robbins, without making an express prediction, remarked that “serious litigation” on a compact “only happens once; after that, you risk contempt [of court] for not complying” with the imposed judgment.

Question 5: “To what extent, if any, do you anticipate new interstate water compacts will be formed in the future, and which considerations underpin your prognosis?”

Klein addressed this question, discussing in detail her knowledge of current negotiations over the Apalachicola-Chattahoochee-Flint (“ACF”) system among Alabama, Florida, and Georgia.  Klein suggested that these states could “learn from the Western experience” because of the West’s robust history with compact negotiation and litigation.  Klein also suggested that the ACF states have the opportunity to negotiate a compact or equitable apportionment that can “fold in” contemporary concerns, such as the Endangered Species Act and groundwater use, that plague western compacts negotiated before these concerns arose.

Question 6: “How likely is it existing interstate water compacts will be amended or renegotiated in the future?  Which factors do you consider most significant to the initiation and success of such efforts?”

Wallace asserted that renegotiation of existing compacts “just won’t happen.”  Existing compacts, for their shortfalls, are a significant foundation for those resources; any negotiations or amendments would, Wallace posited, “fill in the gaps.”  Robbins then said that, from the perspective of state sovereignty, any renegotiation or significant amendment to existing compacts would require states to “give up something.”  The states would have to change their existing relationships vis-à-vis concessions of state sovereignty.  Robbins also discussed the ability of compact commissions to adopt regulations that govern the administration and implementation of the compacts, and he used the Rio Grande and the Arkansas as two examples of such commission regulations.  He suggested that retaining these existing mechanisms is both more likely and more preferable to complete renegotiation.  Wallace then reiterated the need for compact administrators to build trust and respectful personal relationships amongst themselves.  Robbins concluded the scripted questions with a reminder that, while not preferable, any negotiator must be ready and willing to litigate in the event that negotiations fail.

The floor then opened for audience questions.  One audience member posed a hypothetical question and asked if severe drought, similar to the drought in Australia, would force the renegotiation of the Colorado River Compact.  Robbins assured the audience that the Colorado River Compact addresses shortages, so renegotiation, even in the face of severe drought, would be unnecessary.  Wallace agreed, and further said that such an event would not force compact parties to allocate water differently because all would already be receiving less under the shortage allocations in the compact.

The next question from the audience inquired into the possibility of a compact specifically for the Ogallala Aquifer.  Robbins believed such a compact would be unlikely because of the very different uses of the aquifer by the three overlaying states, and because the Supreme Court decisions on the Republican and Arkansas litigation posited that existing compacts already address groundwater use.  Klein expressed similar skepticism, and described a case between Mississippi and Tennessee regarding different uses and contested ownership of a common aquifer.  Wallace then pointed to the Colorado Supreme Court case of In Re: the Application for Water Rights of Park County Sportsmen’s Ranch as an example of the inclusion of groundwater aquifers in existing compacts and use laws.

Robinson thanked the audience and the panel, and with the conclusion of this panel came the end of the 2016 Symposium.

Aubrey Bertram


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

Denver, Colorado                          April 8, 2016

WAR OVER THE RED RIVER: IMPLICATIONS OF THE TARRANT REGIONAL WATER DIST. V. HERRMANN DECISION

At the University of Denver Water Law Review Annual Symposium, Professor Tom Romero, a faculty member at Sturm College of Law and faculty advisor for the Water Law Review, introduced the sixth panel, which featured two attorneys arguing for each side of the Supreme Court case Tarrant Regional Water Dist. v. Herrmann.

Professor Romero began by outlining the case, which the United States Supreme Court (“Court”) decided in 2013, and how it affected litigation over interstate water compacts.  The water compact at issue, the Red River Compact (“the Compact”), includes Texas, Oklahoma, Louisiana, and Arkansas.  This case originated in the Compact area shared by Texas and Oklahoma.  Before introducing the attorneys, Professor Romero summarized the issues in the case, including the Dormant Commerce Clause and water marketing issues that the Supreme Court had not reviewed in many years.

The first attorney Professor Romero introduced was Kevin L. Patrick, a shareholder at Patrick, Miller and Noto, P.C.  Mr. Patrick was counsel for petitioner Tarrant Regional Water District (“District”) in the case.  The District provides water to north-central Texas.  The second attorney on the panel was Star Waring, a shareholder-partner and member of the Natural Resources and Water Law Practice Group of Dietze and Davis, PC.  Ms. Waring is the Practitioner in Residence for the Natural Resources and Environmental Law program at Sturm College of Law.  Ms. Waring spoke on behalf of Susan M. Ryan of Ryley, Carlock, and Applewhite, who was counsel for two amicus parties for respondents in the case, the Oklahoma Water Resources Board (“OWRB”).

After the introductions, Mr. Patrick and Ms. Waring further developed the history behind the case, the Compact, and the two parties. The panelists then presented in a point-counterpoint style.

Mr. Patrick began first by explaining key historical points that led to this dispute.  The first negotiations surrounding the Red River occurred when the United States signed the Treaty of Amity, Settlement, and Limits Between the United States of America and His Catholic Majesty on behalf of the Republic of Mexico.  Under this treaty, Mexico relinquished access, use, and ownership rights to the Red River.  Mr. Patrick next jumped to 1978, when Arkansas, Louisiana, Oklahoma, and Texas divided the waters of the Red River, creating the Compact. Congress passed the Compact into federal law in 1980.  Mr. Patrick made his first argument in favor of the District by detailing that Southeastern Oklahoma to the north of the Red River receives large amounts of rain annually, while North Texas just to the south of the Red River receives unusually small amounts of rain annually.  Mr. Patrick concluded this point stating that Oklahoma discharges 32.5 to 34 million acre-feet of unused stream water through the Red River annually.

Ms. Waring then presented her first counterpoint and explained that although southeastern Oklahoma is abundant in its annual precipitation, the southwestern portion of Oklahoma is very dry. Ms. Waring argued that area of Oklahoma should be the focal point as it contains the largest metropolitan area in the state, Oklahoma City.

Next, Mr. Patrick and Ms. Waring provided a visual of the Red River Compact, and pointed out sub-basin five as the area of the Compact at issue in this case.  Mr. Patrick and Ms. Waring provided a Compact excerpt, Section 5.05(b)(1).  Section 5.05(b)(1) declares that the signatory states shall have equal rights to the use of runoff originating in sub-basin five and designated water flowing into sub-basin five.  Furthermore, anytime there are 3,000 cubic feet per second flowing at a particular point, each of the four states has a right to take twenty-five percent of the water in the river sub-basin.  For reference, Mr. Patrick mentioned that ninety-six percent of the time, there is a flow of 3,000 cubic feet per second in sub-basin five, so the four states have the right to take twenty-five percent of that flow the majority of the time.  Before moving into the procedural history leading up to the Supreme Court appearance, Ms. Waring posed the major question surrounding this case asking “why did Tarrant try to buy water rights from the state of Oklahoma if in fact it had the right to come and divert that water from the Red River in the first place?”  Both Mr. Patrick and Ms. Waring agreed that because the case was appealed from a summary judgment in the district court, the parties could have developed a better factual record had the dispute made it to trial.

Moving into the procedural history, Mr. Patrick and Ms. Waring explained that the District initially filed the lawsuit in the United States District Court for the Western District of Oklahoma.  The District sought declaratory and injunctive relief against the OWRB’s enforcement of Oklahoma statutes.  Those statutes apply stricter standards to applicants seeking to divert water within Oklahoma’s borders for out-of-state use.  The District sought to enjoin this enforcement on the grounds that the Compact pre-empted the statutes and that the statutes violated the Dormant Commerce Clause by discriminating against interstate commerce.  The District Court denied OWRB’s first motion for summary judgment motion on its claims of Eleventh Amendment Immunity. The court granted OWRB’s second motion for summary judgment seeking to dismiss the District’s Dormant Commerce Clause claim.  After appeals, the United States Court of Appeals for the Tenth Circuit held that the Compact did not entitle a Texas water district to take a share of water from a tributary located in Oklahoma, and affirmed the District Court’s decisions.

Mr. Patrick and Ms. Waring then discussed the District’s first Petition for Certiorari, and Mr. Patrick discussed how the Untied States Solicitor General supported granting Cert and believed that the plain language of the Compact favored the District.  The panelists discussed the fact that the Supreme Court looked to a number of other sections of the Compact, focusing more on states’ rights instead of previous legislative history in regard to the Compact.

Before getting to the Supreme Court decision, Mr. Patrick and Ms. Waring broke down the parties’ arguments.  First, Mr. Patrick listed the main points that the District would have made, including arguments on preemption and the Dormant Commerce Clause.  For pre-emption, the District interpreted the provision regarding sub-basin five as allowing it to divert water from a tributary in Oklahoma.  In other words, the District sought to prove that the plain language of the provision created a sub-basin defined by coordinates, not state boundaries, in which each state could access its equal share of the shared pool water from anywhere in the sub-basin.  For the Dormant Commerce Clause, the District argued that the language of the Oklahoma anti-diversion statute for out-of-state entities was discriminatory.  Additionally, it argued that there should be a rule to look at legislative history instead of the states’ rights.  Next, Ms. Waring went into OWRB’s arguments.  The OWRB’s main argument was that the District did not have the authority to enter into Oklahoma physically to divert water for use in Texas.  Furthermore, the OWRB argued that the twenty-five percent allocation of sub-basin five in the Compact meant twenty-five percent of the water within the state’s own boundaries, not anywhere in the sub-basin.  The OWRB argued that states don’t relinquish sovereignty lightly and that whenever a state allows cross-border rights, they are always expressed with clear language.  Finally, the OWRB argued that the dormant Commerce Clause does not apply to “allocated” water and that if anything, Texas’s past efforts to buy that water cut against the District’s argument that it was entitled to the water.

Next, Mr. Patrick and Ms. Waring dove into the Supreme Court case and Justice Sotomayor’s 2013 decision.  The Court affirmed the Tenth Circuit decision on different grounds.  The key rulings, according to Ms. Waring, were that the Court agreed with the OWRB’s argument that a state retains sovereignty over water resources within its boundaries, that the District’s past conduct in attempting to purchase water from Oklahoma demonstrated no cross-border rights, and therefore the District could divert up to twenty-five percent of water in sub-basin five within Texas, but not from Oklahoma.

In their conclusion, Mr. Patrick and Ms. Waring reiterated that it would have been interesting to see the factual record developed had the case gone to trial.  Additionally, they shortly discussed how the lack of language on state boundaries and border-crossings in the Compact played an important role throughout the case.  Finally, the attorneys closed by outlining the key takeaways from the case and from their discussion before taking questions from the attendees.

Joshua Oden

 


Fairfield Cnty. Bd. of Comm’rs v. Nally, 34 N.E.3d 873 (Ohio 2015) (holding that a new Total Maximum Daily Load for pollutant discharges into a watershed was a rule as defined under the Ohio Administrative Procedure Act and, as such, should have been properly promulgated to afford interested parties their rights to notice and be heard before the rule’s submission to the U.S. Environmental Protection Agency for approval).

The Federal Water Pollution Control Act, or Clean Water Act, seeks to restore and maintain the integrity of U.S. waters through (i) technology-based effluent limitations on “point sources” discharging pollutants; and (ii) water-quality standards for protecting the use of identified water bodies. The Clean Water Act also requires each state to identify waterways that are too impaired to implement applicable water-quality standards and then rank waterways based on pollution severity. States must then develop a Total Maximum Daily Load (TMDL), which establishes a maximum amount of the specified pollutant that may be discharged into the waterway without violating water-quality standards. Once the U.S. Environmental Protection Agency (“EPA”) approves a state’s TMDL, the state must implement that TMDL.

Pursuant to these requirements, the Ohio Environmental Protection Agency (“Ohio EPA”) developed a document in 2005 called the “Total Maximum Daily Loads for the Big Walnut Creek Watershed” (“TMDL report”), which the EPA subsequently approved. Using stream-survey data from 2000 of Blacklick Creek—one of the 54 “stream segments” in the Big Walnut Creek watershed—the report put forth new phosphorous discharge limits for Blacklick Creek. The Tussing Road Water Reclamation Facility (“Tussing Road plant”), owned by Fairfield County (“the county”), is one of the sources subject to the report’s new limitation. In 2006, the county applied for and received a renewed National Pollutant Discharge Elimination System (“NPDES”) permit for the Tussing Road plant. The new permit included the TDML-derived phosphorous discharge limitation.

The county appealed this limit to the Environmental Review Appeals Commission (“ERAC”), which found that while the Ohio EPA had a valid basis for imposing the limit, it failed to consider whether such a limit was feasible. Thus, the ERAC vacated the phosphorous limit and remanded the case to the Ohio EPA. Subsequently, the county appealed the ERAC’s finding that the Ohio EPA had a valid foundation for imposing the limit, and the Ohio EPA cross-appealed (asserting that the TMDL had been federally approved and that federal law required Ohio EPA to set the phosphorous limit). The Tenth District Court of Appeals (“lower court”) affirmed the ERAC’s order, finding that there was sufficient factual foundation for a phosphorous limitation and rejecting the county’s assertions that the new limitation lacked meaningful review and, therefore, violated due process. The county appealed to the Supreme Court of Ohio (“Court”).

The Court first considered whether the TMDL was a “rule” within the requirements of Chapter 119 of the Ohio Administrative Procedure Act, which defines a “rule” as any “standard, having a general and uniform operation, adopted, promulgated, and enforced by any agency.” Because the TMDL sets a new legal standard—applied by the Ohio EPA—to “all current and future dischargers in the Big Walnut Creek watershed,” the Court observed that the limit fell within Chapter 119’s definition of “rule.” Additionally, the Court disagreed with the agency’s argument that the TMDL is merely a tool for implementing its pre-existing legal obligation. Examining the consequences of a TMDL, the Court determined that even though the Ohio EPA allocated limits individually to different point sources, the same standards and procedures applied to each; thus, the TMDL had “general and uniform effect.” Finally, the Court noted that the TMDL creates new legal obligations. The results of the TMDL development process were new mandatory loading reductions rather than “mere enforcement of compliance with existing authority,” as argued by the Ohio EPA. Thus, the Court held this indicated that the TMDL was indeed a rule subject to rulemaking procedures.

The Court then addressed the county’s second argument—that the TMDL itself establishes a new water-quality standard and therefore requires rulemaking procedures. Previously, the Ohio EPA had promulgated a narrative standard for phosphorous in the Ohio Administrative Code, requiring limitations on phosphorous “to the extent necessary to prevent nuisance growths of algae, weeds, and slimes that result in a violation of water quality criteria.” However, the TMDL imposes a numeric limit for phosphorous for all water bodies in the Big Walnut Creek watershed. The Court found that this new numeric limit constituted a water-quality standard; therefore it should have been first promulgated as a rule under Chapter 119.

Because the TMDL was a rule, the Court held that the Ohio EPA should have complied with Chapter 119’s rulemaking procedures, which include providing public notice, an opportunity for public comment, and a public hearing before using the TMDL-derived target in an NPDES permit. The Court found that while the Ohio EPA did make a draft of the TMDL available for public review before submission to the EPA, that act alone did not satisfy the rulemaking procedural requirements. Because agencies must give the public certain due process rights before a rule attains final federal approval, the Court held that Ohio EPA’s failure to do so ultimately deprived NPDES permit holders of their rights to notice and be heard regarding the rule.

Accordingly, the Court affirmed the lower court’s judgment, vacating the new phosphorous standard and remanding the cause to the Ohio EPA.

Justice O’Donnell concurred as to the ruling, but agreed with the court of appeals’ reasoning. Justice O’Connell observed that the Ohio Administrative Code allows water-quality standards to be either numeric or narrative in nature, and the Ohio EPA had already promulgated the narrative standard for phosphorous limits (quoted above). Because TMDLs merely provide the factual and technological data needed to implement Ohio water-quality standards, Justice O’Donnell argued that TMDLs are not administrative rules and need not be promulgated as such. In O’Donnell’s view, TMDLs are not legal standards, but objective, factual determinations that the Ohio EPA makes to interpret and implement the water-quality standards. Accordingly, Justice O’Donnell would affirm the court’s ruling on the grounds that the Ohio EPA did not challenge the lower court’s determination that the Ohio EPA failed to consider the technical feasibility and economic reasonableness of the limit, rather than the Court’s ruling that the TMDL was a rule.

Katy Rankin

Image: Turtle Pond Panorama, Three Creeks Metro Park, where Big Walnut Creek is joined by its principal tributaries Alum Creek and Blacklick Creek, Columbus Ohio.  Flickr user Raymond Wald, Creative Commons.