Oklahoma v. Texas--Water Wars
Tarrant Regional Water District (“TRWD”) provides water to more than 1.7 million Texans in an 11-county area, and wants to buy water from Oklahoma. However, Oklahoma isn’t selling. Oklahoma has enacted statutes that impose restrictions on water sales across state lines which, as a practical matter, preclude the interstate sale of Oklahoma water to the TRWD. In 2007, TRWD sued to have those restrictions lifted, arguing that under the Commerce Clause of the US Constitution, state laws that discriminate against other states regarding water, an alleged article of commerce, are unconstitutional.
TRWD also argued that the Red River Compact (“Compact”) supersedes Oklahoma’s laws and would permit the sale of water to TRWD. This Compact was signed by Texas, Oklahoma, Louisiana and Arkansas in 1978 and approved by the U.S. Congress in 1980. The Compact essentially “divided” the water from the Red River and its tributaries between the states involved. In November, the U.S. District Court for the Western District of Oklahoma granted partial summary judgment rejecting TRWD’s claims based upon the Commerce Clause. The Court determined that, in fact, protection of Oklahoma water for use in Oklahoma was one of the purposes of the Compact, although the judge noted that this case presented a close question.
TRWD amended its complaint, and argued that the law in Oklahoma would not preclude the sale of groundwater to TRWD. Although the judge agreed, he determined that this claim was not yet ripe for consideration, as TRWD had not yet filed an application with Oklahoma to obtain groundwater. In addition, another new claim was added--- that the purchase of water from the Apache Tribe of Oklahoma was not covered by the Compact. This claim was dismissed as not providing the basis for a justiciable claim, since the arrangement with the Tribe had too many contingencies and uncertainties.
The judge entered judgment in the TRWD case on July 16, 2010, and TRWD filed its appeal with the Tenth Circuit on August 12, 2010. Stay tuned, the water wars between Oklahoma and Texas are far from over.
Hydraulic Fracturing - To Disclose or Not To Disclose
The ongoing developments in the Gulf of Mexico, together with last years coal ash and mine safety incidents have contributed to a renewed interest for regulation in Congress. One of the areas under consideration for such further regulation is hydraulic fracturing, a well drilling technique used to develop oil and gas resources.
The technology used in fracturing has been in use for decades in the oil industry. Thousands of wells across the country use the technology. The renewed interest in regulating coincides with the expansion of fracturing into more recently confirmed deposits of natural gas, located in shale deposits thousands of feet beneath the earth’s surface. A hydraulic fracturing well, in those contexts, is first drilled vertically down, and then advanced horizontally into the shale. Then, highly pressurized water, plus very low concentrations of chemicals, added to enhance the effectiveness of the technique and to protect the related equipment, is introduced into the well. The resulting pressure cracks the shale, permitting the well to collect natural gas.
Congress exempted the fracturing process from regulation under the Safe Drinking Water Act (SDWA) in 2005. Since then, fracturing has been regulated by the states where the wells are located. However, the changed regulatory climate, coupled with the fact that shale deposits have been identified in locations like New York and Pennsylvania, which are not traditional “energy states,” has led to questions about whether that exemption should end or be modified. Most recently, efforts have focused on narrowing, not abandoning the exemption. All of this has occurred despite a positive regulatory and enforcement history for the fracturing industry.
There have been two principal avenues for the Congressional proposals related to fracturing. Both would require well developers to identify the chemicals added to the water, and provide them to an oversight body, which would publish the information on the internet. One route would amend the SDWA to allow states to compel disclosure, and would require a federal disclosure mechanism as a default, if a state failed to set one up. The other route, which has been less talked about recently, would accomplish a similar result within the framework of the Emergency Planning and Community Right to Know Act.
Industry is not of one mind on whether and how to advance the disclosure concept. Many important natural gas developers are prepared to work with a tailored federal disclosure requirement, provided the oversight entity is one other than EPA. Other, traditional elements within the industry, oppose any change to the federal exemption. And, both prongs agree that the issue has been well and adequately regulated by states for years, and should remain principally the province of the states.
In the current Washington environment, regulation seems more likely than ever, but it is far from inevitable. Despite aggressive opposition campaigns, an advocacy film and public forums crowded with well-organized fracturing opponents, those clamoring for federal change have yet to substantiate even the most often repeated anecdotes of environmental risk.
In response to a request from Congress, EPA has launched a study to evaluate the possible influences of fracturing activities on ground water sources used for drinking. Similar, but more limited exercises also are taking place at the state level. The best result, of course, would be to maintain the current level of regulatory oversight until these studies are complete, and then to evaluate the need for change based on those scientific results. Unfortunately, that is not necessarily how our environmental laws have progressed in the past. Perhaps it will be how Congress proceeds this time. Hope springs eternal.
The Deck is Still Stacked in the Government's Favor -- Is This A Good Thing?
Last week, in City of Pittsfield v. EPA, the First Circuit Court of Appeals affirmed denial of a petition by the City of Pittsfield seeking review of an NPDES permit issued by EPA. The case makes no new law and, by itself, is not particularly remarkable. Cases on NPDES permit appeals have held for some time that a permittee appealing an NPDES permit must set forth in detail in its petition basically every conceivable claim or argument that they might want to assert. Pretty much no detail is too small. The City of Pittsfield failed to do this, instead relying on their prior comments on the draft permit. Not good enough, said the Court.
For some reason, reading the decision brought to mind another recent appellate decision, General Electric v. Jackson, in which the D.C. Circuit laid to rest arguments that EPA’s unilateral order authority under § 106 of CERCLA is unconstitutional. As I noted in commenting on that decision, it too was unremarkable by itself and fully consistent with prior case law on the subject.
What do these two cases have in common? To me, they are evidence that, while the government can over-reach and does lose some cases, the deck remains stacked overwhelmingly in the government’s favor. The power of the government as regulator is awesome to behold. Looking at the GE case first, does anyone really deny that EPA’s § 106 order authority is extremely coercive? Looking at the Pittsfield case, doesn’t it seem odd that a party appealing a permit has to identify with particularity every single nit that they might want to pick with the permit? Even after the Supreme Court’s recent decisions tightening pleading standards, the pleading burden on a permit appellant remains much more substantial than on any other type of litigant.
Why should this be so? Why is it that the government doesn’t lose when it’s wrong, but only when it’s crazy wrong?
Just askin’.
A Combined Superfund and Stormwater Rant
Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the meaning of CERCLA by designing state highways with stormwater collection and drainage structures, where those drainage structures ultimately deposited stormwater containing hazardous substances into Commencement Bay -- now, a Superfund site -- in Tacoma, Washington. 
I’m sorry, but if that doesn’t make you sit up and take notice, then you’re just too jaded. Under this logic, isn’t everyone who constructs a parking lot potentially liable for the hazardous substances that run off in stormwater sheet flow?
For those who aren’t aware, phosphorus, the stormwater contaminant du jour, is a listed hazardous substance under Superfund. Maybe EPA doesn’t need to bother with new stormwater regulatory programs. Instead, it can just issue notices of responsibility to everyone whose discharge of phosphorus has contributed to contamination of a river or lake.
The Court denied both parties’ motions for summary judgment regarding whether the discharges of contaminated stormwater were federally permitted releases. Since the Washington DOT had an NPDES permit, it argued that it was not liable under § 107(j) of CERCLA. However, as the Court noted, even if the DOT might otherwise have a defense, if any of the releases occurred before the permit issued – almost certain, except in the case of newer roads – or if any discharges violated the permit, then the Washington DOT would still be liable and would have the burden of establishing a divisibility defense.
If one were a conspiracy theorist, one might wonder if EPA were using this case to gently encourage the regulated community to support its recent efforts to expand its stormwater regulatory program. Certainly, few members of the regulated community would rather defend Superfund litigation than comply with a stormwater permit.
You can’t make this stuff up.
EPA ANNOUNCES STRATEGY FOR CHESAPEAKE BAY RESTORATION
On May 12, 2010, EPA, with the support of six other federal agencies, issued a Strategy For Protecting and Restoring the Chesapeake Bay Watershed. The strategy document is a major milestone in an enormous multi-stakeholder exercise involving issues of science, law, policy and politics launched a year ago by President Obama. Executive Order 13508, 74 Fed. Reg. 23099, entitled “Chesapeake Bay Protection and Restoration,” recognized the unique ecological, economic, recreational and cultural value of the Bay, and the failure of federal and state efforts over the previous 25 years to reverse its serious degradation. The Order directed the seven federal agencies to work together to develop a strategic plan to restore the Bay to a healthy condition by 2025, in consultation with the six states whose lands are included in the Chesapeake Bay watershed and the District of Columbia, plus stakeholder groups, NGOs and concerned citizens among the 17 million people who live in the watershed. While the most relevant law in this effort is the Clean Water Act, other federal, state and local laws are also in play. This article briefly describes the problems faced by the Bay and then discusses the strategy for its restoration.
Continue Reading...Groundwater Cleanups - What If Drinking Water Standards Cannot Be Met?
EPA began the CERCLA program in 1980 with the view that all sites could be remediated to stringent cleanup standards, including drinking water standards for contaminated groundwater. The primary remedy selected for groundwater contamination was extraction and treatment. Consent Orders typically required groundwater remediation to be conducted for 30 years, if necessary, to achieve drinking water standards.
New technologies are being used to remediate groundwater and there has been much progress. However, there are still sites where it is clear that drinking water standards will not be met in 30 years and where the cost of continued treatment produces only limited reduction of contaminant levels. CERCLA is 30 years old and there are many case histories to use in the evolution of policies developed when the program began.
EPA provides relief for contaminated groundwater that exceeds drinking water standards through technical impracticability waivers, alternative concentration limits and monitored natural attenuation. However, these mechanisms have not provided the relief that many expected at sites where the facts show that standards will not be met.
EPA and states have changed their original position with respect to cleanup of soil to stringent limits in all locations. Environmental agencies now look at issues of risk and actual exposure to contaminated soil rather than theoretical exposure. Some states have developed new policies with respect to groundwater remediation which include more thorough considerations of risk and actual exposure.
There is growing concern over the availability of water, even in areas of the United States which have not experienced water supply problems in the past. Thus, there are strong reasons for remediating contaminated groundwater to drinking water standards. However, there are a number of sites where long term remediation will not achieve drinking water standards.
Is there a need for new policies and procedures for sites where contamination levels can be reduced but drinking water standards will not be achieved? What elements are appropriate for a new policy? Should there be a procedure for environmental agencies to restrict the use of groundwater where there is no risk to actual drinking water supplies? Should EPA provide guidance to encourage the use of technical impracticability for these sites? Should the agency consider a policy to control the plume of contamination rather than requiring drinking water standards to be met throughout the contaminated groundwater?
In Search of Mitigation: Savannah Harbor Deepening Project
With the anticipated Panama Canal expansion (expected to be completed by 2014), the Port of Savannah, Georgia is preparing for the new super-sized container vessels coming its way. Part of that preparation includes a proposed harbor deepening project (“Savannah Project”). The Savannah Project carries with it a price tag of $588,000,000 with a sizable portion of this amount earmarked for mitigation.
The primary component of the Savannah Project is deepening the existing entrance channel from forty-two feet up to forty-eight feet. The concern with any large-scale project like this, however, is the impact it will have on the surrounding environment and how that impact can be appropriately managed and mitigated. Adding to the mix is the tremendous economic impact the Savannah Harbor has on the entire State of Georgia. Georgia's deepwater ports support over 286,000 jobs and contribute 14.9 billion dollars in income to the State of Georgia.
Mitigation is both a hot topic in environmental law, and in many cases, a moving target. The Savannah Project provides a unique case study for both the process of approving a large-scale project like the Savannah Project and the creative and innovative ways mitigation can be discussed and hopefully achieved.
With respect to the Project, the concomitant mitigation plan includes mitigation for cultural resources, natural resources mitigation, an impact avoidance plan, and in an unusual move, a monitoring and adaptive management plan. Primary concerns include the potential loss of freshwater marsh due to intrusion and an increase in salinity levels; potentially decreased dissolved oxygen levels in the Savannah River; potential harm to the Striped Bass and Shortnose Sturgeon population; and cadmium levels in dredged sediment. As an example, without mitigation of any kind, deepening the channel to 48 feet would impact approximately 1,212 acres of freshwater wetlands. With mitigation, the impact could be limited to 337 acres.
Proposed mitigation measures include altering the flow of fresh and saltwater through a variety of cuts and contouring, construction of a fish bypass structure, closing of selected channels connecting the Savannah River and its tributaries and opening cuts between various adjacent waterways. To specifically address concerns about dissolved oxygen, proposed mitigation efforts call for oxygen injection in several places in the Savannah River through a “bubbler” system made up of injection cones. Each cone would inject up to 15,000 pounds of oxygen into the river per day.
Further mitigation efforts call for the purchase and/or preservation of freshwater wetlands in the upper harbor basin to offset the impact of the Savannah Project on existing freshwater estuaries and the creation of a new 80.5 acres of saltwater marsh to reclaim marshland which will be lost. Further, in a somewhat unusual move, the adaptive management plan would monitor the success of mitigation not only during the construction phase of the Savannah Project, but for up to five years after it is completed.
The Savannah Project is not without opposition. Beginning with a lawsuit filed in March 2000 to forestall decision-making on the Savannah Project (which was eventually dismissed), critics remain concerned that the Savannah Project will not be appropriately mitigated and are not convinced that mitigation success can be measured in a meaningful way. How the Savannah Project will shape and develop after the draft EIS is issued in the next few months is yet to be seen. However, all involved will continue to search for mitigation.
A full overview of the Savannah Project and its proposed mitigation efforts can be found here.
EPA Completes Six-Year Review of National Primary Drinking Water Regulations
EPA recently completed a six year review of the National Primary Drinking Water Regulations (NPDWRs) “to identify those NPDWRs for which current health effects assessments, changes in technology, and/or other factors provide a health or technical basis to support a regulatory revision that will support or strengthen public health protection.” This six-year review is mandated by the Safe Drinking Water Act. The first six year review was completed in 2003. The sixty-plus page March 29, 2010 Federal Register issuance of the notice and request for comments can be found here.
EPA reviewed the 85 NPDWRs, included in the Federal Register Statement a detailed explanation for 71, and is proposing that four of them be considered for revision. Not surprisingly, the proposed revisions are to decrease the maximum contaminant level (MCL) closer to the maximum contaminant level goal (MCLG). As a reminder, the MCLG is “set at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety.” The MCL, a term with which many are more familiar, is the highest allowed level of a contaminant in water delivered to one using a public water system, and is supposed to be as close to the MCLG as possible. MCLs, however, are not used by regulators just to judge official public drinking water systems, but also groundwater. If you are involved at a site where cleanup standards have been set, or are in the process of being set, for these four NPDWRs, be prepared for some re-negotiation. And, it will not be long after any such changes are made that many states will follow.
The primary reason an MCL is higher than an MCLG is technology—our testing methods and analytical abilities cannot detect as low as the MCLG, many of which are zero—aka the practical quantitation limit (PQL). Thus, one of the pieces of EPA’s six year review was whether technology had advanced, with sufficient confidence, to allow a reduction in the MCL closer to the MCLG.
The four contaminants EPA is proposing receive revised NPDWRs are acrylamide, epichlorohydrin, and two more common contaminants with which most of us have run into before—tetrachloroethylene (PCE), and tricholorethylene (TCE). PCE and TCE received almost identical recommendations, and both have a current MCLG of 0.0, and an MCL of 0.005 mg/L because of PQL. EPA made no final recommendation on PCE and TCE because the risk assessment for these two contaminants was still in progress and, thus, EPA could not determine whether revised MCLs would gain potential health benefits. However, EPA concluded that advancements in analytical and treatment technologies were such that “analytical feasibility could be as much as ten times lower [than the current MCL] (~ 0.0005 mg/L)”, noting that its review also concluded that levels of PCE and TCE in the environment at this reduced level are “relatively widespread”. EPA is giving stakeholders the opportunity to submit information to it about what laboratories “can reliably and consistently achieve.”
Stay tuned—technology’s exponential increase in our ability to detect smaller and smaller concentrations of contaminants in the environment may very well exponentially increase treatment costs and higher costs at cleanup sites. Whether health risks decrease sufficiently from driving down MCLs is yet to be determined, but the writing appears on the wall for now.
Dredging of Delaware River Allowed to Begin ... Will It be Completed?
On March 1, 2010, the Army Corps of Engineers began to dredge a section of the Delaware River to deepen the shipping channel that services ports as far north as Philadelphia and Camden. While not a remarkable event as yearly maintenance dredging occurs, the dredging of the River to a lower depth was preceded by more than twenty years of debate, administrative actions and litigation surrounding the need to deepen the channel. Yet, even as the dredging takes place, the fight continues, as the Governor of New Jersey has pledged to oppose the channel deepening on economic and environmental grounds.
Delaware Sues to Enjoin the Corps
Litigation surrounding the dredging ensued earlier this year in the United States District Court for the District of Delaware after the Corps decided to proceed with the deepening project despite not having received all state permits and approvals to do so. Before proceeding, the Corps found that Delaware had refused to provide one such permit in a timely and responsible manner, thereby interfering with its authority to maintain navigation as directed by Congress, and concluded that its actions would conform to the applicable State Implementation Plans, pending the purchase of emission reduction credits.
The State of Delaware Department of Natural Resources and Environmental Control (“DNREC”) sought to enjoin the Corps from proceeding with the deepening project until the Corps demonstrated its compliance with all applicable state and federal requirements, alleging violations of the Clean Water Act, Clean Air Act, Coastal Zone Management Act and the state regulatory regimes associated with these statutes.
Whooping Cranes and Texas Water Rights - A Fight's A Brewing
There is a fight brewing over the management of water resources in Texas. In a lawsuit that raises significant water rights implications, The Aransas Project (“TAP”), a non-profit corporation and an alliance of citizens, organizations, businesses and governmental entities, filed suit on March 10 in Corpus Christi against the Texas Commission on Environmental Quality (“TCEQ”) alleging that the state agency’s actions have harmed and threaten future harm to Whooping Cranes, the species that has pre-eminently exemplified and symbolized the wildlife conservation movement at the heart of the Endangered Species Act. According to the petition, 23 Whooping Cranes died at or adjacent to the Aransas National Wildlife Refuge (“ANWR”) in Texas over the winter of 2008-2009. After reviewing the allegations and the relief requests, one may wonder if this is a lawsuit to protect Whooping Cranes or is it part of a strategy to control the continued population growth and economic development in Texas through the control of water resources.
The Last Wild Flock
The Aransas-Wood Buffalo Whooping Crane flock winters at the ANWR along the Texas coast, northeast of Corpus Christi, and breeds in Canada’s Wood Buffalo National Park in the summer. It is the only natural wild flock remaining in the world. After decades of government protection in this country and in Canada, the flock has increased from 16 birds in the early 1940s to 270 in the spring of 2008. ANWR is located at or near the bays that are fed by freshwater flows of the Guadalupe and San Antonio Rivers into San Antonio Bay.
UPDATE ON THE POULTRY LITIGATION IN OKLAHOMA Poultry litter is not a solid waste under RCRA
The Oklahoma State Attorney General sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the application and disposal of poultry litter in the watershed. State of Oklahoma v. Tyson Foods, Inc. et. al. Case No. 05-CV-329-GFK(PJC). The suit alleged claims under CERCLA, RCRA, and nuisance among other things. You are referred to the articles posted March 9, 2009 an September 3, 2009 for particulars regarding the claims.
Two weeks before trial, the Cherokee Nation moved to intervene in the case as a necessary party, but the Judge wouldn’t allow it. The Court decided that the damages claims would not be tried, but that the injunctive claims as well as the state penalty claims could be tried with the absence of the Cherokee Nation in the suit. The reasoning was, among other things, that the Cherokee Nation would be potentially prejudiced if the remaining damage claims went forward without it, but that would not be the case if the remaining injunctive claims and state law penalty claims were tried. Although the Cherokee Nation filed an immediate appeal with the Tenth Circuit, it did not ask that the case be stayed pending the outcome of the appeal.
Continue Reading...DON'T DIG A WATERY GRAVE: STAY CURRENT ON THE LATEST WATER REGULATIONS AND AVAILABLE FUNDING
originally posted for the Association of Corporate Counsel's Green-House Counsel ©2009
The construction and rehabilitation of our nation’s infrastructure has come to the fore with the advent of both climate change and the transformation of our energy production. As water shortages continue to move eastward from the western states and new water quality standards are promulgated to address previously unregulated pollutants, the handling of water will ultimately require as much, if not more, attention from corporate counsel than the current focus on fossil fuel. To anticipate this potential sea change, counsel should be aware of the evolution of governmental regulation of the use and handling of water, as well as monetary incentives to achieve compliance with the emerging laws.
To provide a brief history, in 1972, the Clean Water Act was amended to regulate direct discharges from industrial facilities and publicly owned treatment works (POTW), and later expanded to cover indirect discharges (e.g., runoff of stormwater) from agriculture and land development. Although the 1972 laws created a discharge permit system (NPDES) and initial funding for POTW construction, it wasn’t until the enactment of the Water Quality Act of 1987 that EPA received annual funding to award to states who set up revolving grant and loan funds to address problems with wastewater, drinking water and stormwater systems within each of their states.
Although the amounts varied with the changes in the executive office and congressional makeup, these funds were normally matched by the states through general obligation and/or revenue bonds and derived from the loan repayments and interest earnings to ensure that the funds would continue to be available to achieve their mission year after year. One such example is the Pennsylvania Infrastructure Investment Authority (PENNVEST), which awards grants and loans for wastewater, drinking water and stormwater projects, including brownfields, acid mine drainage and nutrient trading. Similar programs exist in each of the 50 states.
The enactment of the American Recovery and Reinvestment Act of 2009 (ARRA) provided additional stimulus funds, designed to create jobs, and required that 20 percent of the funds be disbursed for “green infrastructure” projects. EPA received $4 billion of stimulus money, to encourage the full recycling of wastewater and stormwater to reduce energy costs, augment future water supplies and minimize adverse impacts on water quality. Since there are financial federal incentives from both the U.S. Environmental Protection Agency (“EPA”) and the Department of Housing and Urban Development (“HUD”), you should proceed with due diligence to determine if funding opportunities are available for your organization. If an appropriate match is identified, assist in the requisite applications for these funds.
· Water Quality Standards;
· Clean Water Act;
· Publicly Owned Treatment Works;
· POTW;
· Wastewater;
· Drinking water;
· Stormwater;
· American Recovery and Reinvestment Act of 2009;
· ARRA;
· “Green infrastructure”;
· Stimulus money;
· Financial federal incentives; and
· Funding opportunities.
WATER MORE VALUABLE THAN OIL NOW? FOR SURE SOMEDAY!
According to Bloomberg News, the worldwide scarcity of usable water worldwide already has made water more valuable than oil. The Bloomberg World Water Index, which tracks 11 utilities, has returned more to investors every year since 2003 than oil and gas stocks or the Standard & Poor’s 500 Index.
When you want to spot emerging trends, follow the money. Today, many of the world’s leading companies and investors are making big bets on water. Why -- there simply is not enough freshwater to go around, and the situation is expected to get worse before it gets better.
The most essential commodity in the world today is not oil, not natural gas, not even some type of renewable energy. It’s water -- clean, safe, fresh water.
Continue Reading...ADVENTURES IN WATER QUALITY MITIGATION
The regulated community is experimenting with solutions to water quality regulatory problems that are market based and implemented on a watershed scale. Such efforts are being met with guarded interest by agencies, environmental organizations and the public, but offer the best hope for true ecological restoration. Oregon has recently passed legislation to foster ecosystem services markets to facilitate this approach.
The Clean Water Act addresses water quality degradation through establishment of water quality standards and imposition of technology based effluent limitations in point source discharge permits. The receiving waters are tested periodically to see if standards are being attained, and if not, then Total Maximum Daily Loads are set and waste load allocations given to point sources so that permits can be adjusted. Non-point sources are given load allocations in the TMDL, but since there is no direct regulatory enforcement mechanism, and since funding sources are limited, compliance is not assured.
This model has worked out pretty well for dealing with municipal and industrial waste water discharges, and toxics in receiving waters have been much reduced. However, there has been little effect on water quality degradation related to non-point sources. In Oregon, over 1,200 streams are listed as water quality limited, and the vast majority are on the list for non-point source related problems, such as warmer ambient water temperatures and nutrient loading. What to do?
Continue Reading...RESOLUTION OF TRI STATE WATER WAR ON THE HORIZON?
For more than two decades, Alabama, Florida and Georgia have clashed over water use from the Apalachicola-Chattahoochee-Flint River Basin and the Alabama-Coosa-Tallapoosa River Basin to support growing demands for water in each state. While it may be a an over generalization, the controversy largely pits Atlanta’s need for a large enough water supply to support its tremendous population growth against water needs in Alabama and Florida for consumption, hydroelectricity, irrigation, recreation, fisheries, and endangered species protection. The states reached a Memorandum of Agreement in 1992 which set a deadline for allocating water from the two watersheds to each state; however, the states were unable to reach an allocation agreement within the deadline and previously filed litigation resumed. While negotiations since have proved futile, a recent federal court decision along with the fact that the governors from each state are all leaving office in January 2011 may lead to a permanent solution to the tri-state water wars in the near future.
Specifically, on July 17, 2009, United States District Court Judge Paul Magnuson of the Middle District of Florida ruled that Georgia was not properly authorized to withdraw substantial amounts of water from Lake Lanier (a part of the Apalachicola-Chattahoochee-Flint River Basin) to provide drinking water to Atlanta. The Court held that because Lake Lanier is a federal reservoir built for purposes of flood control, hydropower generation, and navigation support, only Congress can approve the operational changes required for increased withdrawals of drinking water. Thus, the Court froze water withdrawals at current levels for the next three years to give time for Congressional approval. Without Congressional approval, withdrawals will revert to very low, baseline withdrawal levels used in the mid-1970s. Click here for a copy of the Court’s opinion.
As a result of the new court-ordered deadline, negotiations between the three states have resumed with a new fervor. On December 15, 2009, the Governors of Alabama, Florida and Georgia met in Montgomery, Alabama to discuss plans for reaching an agreement. While the Governors did not offer specifics on their negotiations, they did indicate that they now hope to reach an agreement on an allocation plan that could be presented to their respective state legislatures for approval this year. If an allocation plan does make it through each state’s legislature, it would of course have to go before Congress for final approval as well. To meet such an ambitious goal, the Governors would have to reach an accord as early as spring of this year.
When Does The Rivers and Harbors Act of 1899 Trump the Clean Water Act?
United States v. Milner, Nos. 05-35802, -36126, 39 ELR 20232 (9th Cir. Oct. 9, 2009)
In a suit brought by the United States against homeowners for common law trespass to tidelands held in trust for a Native American tribe, the Ninth Circuit held that waterfront homeowners who built shoreline defense structures on this property are liable for common law trespass and for violating the Rivers and Harbors Appropriations Act of 1899 (RHA).
Between 1963 and 1988, the homeowners leased the tidelands from the tribe, giving them the right to erect shore defense structures on the tidelands. After the lease expired, the homeowners refused to remove the structures or enter into a new lease agreement. The homeowners argued that they cannot be liable for trespass, despite the movement of the tideland boundary, because their structures were lawfully built on the homeowners' property landward of the mean high water (MHW) line.
The court disagreed. Under common law, however, the boundary between the tidelands and the uplands is ambulatory, changing when the water body shifts course or changes in volume. Because both the upland and tideland owners have a vested right to gains from the ambulation of the boundary, the homeowners cannot permanently fix the property boundary, thereby depriving the tribe of tidelands that they would otherwise gain. And although the structures may have been legal as they were initially erected, the court found that this is not a defense against the trespass action nor does it justify denying the tribe land that would otherwise accrue to them.
The court also determined the homeowners are liable under the RHA because they have maintained at least part of their shore defense structures below the MHW line and because the structures alter the course, location, condition, or capacity of a navigable U.S. water. Addressing whether the homeowners had also violated the Clean Water Act (CWA), the court held that it was unclear from the evidence whether the high tide line actually reached the area where the homeowners discharged fill material during their maintenance of the structures. The court emphasized that although the jurisdictional reach of the CWA is generally broader than that of the RHA, the RHA is concerned with preventing obstructions, whereas the CWA is focused on discharges into water. Since the two laws serve different purposes, their regulatory powers will diverge in some circumstances, such as this one.
EPA ISSUES FINAL RULE ON CONSTRUCTION SITE WATER POLLUTION
by
John Crawford, Michael Caples and Gary Rikard
On November 23, 2009, EPA finalized technology-based effluent guidelines that are likely to have a significant impact on the construction industry. The new regulation applicable to the Construction and Development Point Source Category is found at 40 C.F.R. Part 450 and imposes both non-numeric standards and, for the first time, numeric standards designed to reduce the discharge of pollutants to stormwater.
According to EPA, construction site owners and operators are the largest group of dischargers under NPDES permits. Despite existing requirements (see 40 C.F.R. 122.26 and similar state regulations) pertaining to “stormwater associated with industrial activity” which regulates discharges from construction sites that disturb one acre or more, EPA believes additional standards are necessary. The new rule requires construction site owners to monitor, report, and comply with effluent limitations guidelines (ELG) and new source performance standards (NSPS) set by EPA. EPA plans to implement the rule in phases over a four-year period. While states with delegated NPDES programs are governed by MOUs with EPA which normally require new regulations to be adopted within one year of EPA adoption, it appears that the new standards will not have to be incorporated by states until existing stormwater construction general permits expire; thus, some states may have up to six years to incorporate the new standards into their general permits.
In non-delegated states, effective in February 2010, all construction site owners and operators must meet non-numeric effluent guidelines set by EPA. Beginning in August 2011, the rule will require construction site owners and operators of projects on twenty (20) or more acres to monitor discharges and comply with numeric effluent guidelines on turbidity to be determined by EPA. By February 2014, construction site owners and operators of projects on as few as ten (10) acres will fall subject to the regulation.
EPA’s new regulation largely affects the construction and development industry. According to EPA, the new rule requires compliance of an estimated 82,000 civil engineering, residential, and commercial construction firms. Former EPA Region 4 Regional Administrator Jimmy Palmer says, “These new rules for controlling stormwater runoff from construction sites trace back to 2002, in the Bush administration. As with the entire federal stormwater program, this is another add-on to state wastewater permit requirements under Section 402 of the Clean Water Act. The most serious impacts of these new rules are the costs of obtaining individual permits when they are required; very significant additional project costs for tighter best management practices, new control measures, and monitoring in order to comply with permit conditions; and dramatically increased enforcement actions, especially in cases where permits are required.”
NATIVE AMERICAN WATER RIGHTS IN OKLAHOMA - CHAPTER 2
On March 9, 2009, we posted an article regarding issues raised in the United States District Court for the Northern District of Oklahoma, State of Oklahoma v. Tyson Foods, Inc., et al., Case No. 05-CV-329-GFK regarding the Cherokee Nation ownership interests in the Illinois River and its watershed. In this case, the Attorney General for the State of Oklahoma sued several poultry companies for polluting the Illinois River and its watershed in eastern Oklahoma as the result of the disposal of poultry litter in the watershed. The suit alleges claims under CERCLA, RCRA, trespass and nuisance, among other things. The State of Oklahoma sought money damages and injunctive relief against the poultry companies.
The Poultry Defendants filed a Motion to Dismiss for Failure to Join the Cherokee Nation as a Required Party under Rule 19, or in the Alternative, Motion for Judgment on the Pleadings alleging the State lacks standing to prosecute the case. The Poultry Defendants alleged the Cherokee Nation possessed significant, legally protected interests in the Illinois River and it’s Watershed that would be impaired or impeded by its absence from the litigation, and further that the Court should grant judgment as a matter of law to the defendants because the State did not have standing to bring the suit.
Continue Reading...Stormwater Discharges From Construction Activity: What Next From EPA?
Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough.
EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that has received the most attention is the requirement that certain construction sites greater than 30 acres meet numerical turbidity limits (specifically, 13 nephelometric turbidity units (NTUs), which I had to include in this post just because it sounds so cool). Developers have opposed the numeric limits; the National Association of Home Builders estimates that the cost to comply would be $15,000 to $45,000 per acre.
On the other hand, the NRDC and Waterkeeper Alliance have threatened to sue EPA if EPA does not revise the propose rule to include post-construction controls as part of the rule. EPA has stated that it is not planning to do so. It’s not obvious that NRDC and Waterkeeper Alliance have the better of this specific debate, but the argument regarding post-construction controls is similar to the ongoing discussion in Massachusetts and elsewhere regarding the need for ongoing stormwater controls at properties other than industrial facilities that are already regulated.
The issue is not going to go away. EPA is under a deadline to issue the rule by December 1, 2009.
DC CIRCUIT UPHOLDS US EPA'S PM 2.5 NON-ATTAINMENT DESIGNATIONS
On July 7, 2009, the United States Court of Appeals for the D.C. Circuit rendered its decisions in the PM2.5 Designations Litigation, Catawba County, NC v. EPA, No. 05-1064 and consolidated cases (D.C. Cir. July 7, 2009). Applying the standard of review set forth in Section 307(d)(9) of the Clean Air Act, which “requires the Court to set aside EPA’s final actions when they are excess of the agency’s statutory authority or otherwise arbitrary and capricious,” the Court denied all of the petitions for review except Rockland County, New York and remanded the designation of Rockland County to EPA for a “coherent explanation of its designation”. Slip op. at 3, 9, 53-56.
Overall, the Court complimented EPA on its handling of “the complex task of identifying those geographic areas that contribute to fine particulate matter pollution”. Id. The Court concluded “EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied – indeed, quite often surpassed – its basic obligation of reasoned decisionmaking.” Id. (emphasis added).
Continue Reading...MORE CLEAN WATER ACT SUITS ON THE WAY?
Part II
And now for the rest of the story…
As reported in this blog in January, the Eleventh Circuit’s recent decision in Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986 (11th Cir. 2008), left an opening for Clean Water Act citizen suits to proceed despite an enforcement action being filed by the state environmental agency on the heels of the issuance of a plaintiffs’ 60-day notice letter. However, the recent dismissal of the Cherokee Mining case upon its return to District Court may give some pause to those who file citizen suits in the future.
As reported in more detail in January, the defendant in Cherokee Mining originally filed a Motion to Dismiss plaintiff’s Clean Water Act citizen suit for lack of subject matter jurisdiction arguing that the suit was barred under Section 309 because the state environmental agency had commenced enforcement subsequent to the plaintiff’s issuance of a 60-day notice letter. The plaintiff successfully defeated the Motion to Dismiss in the District Court by relying on what was a largely overlooked provision of Section 309 stating that the bar to citizen suits does not apply to actions filed “before the 120th day after the date on which…notice is given.” 33 U.S.C. § 1319(6)(B)(ii). The Eleventh Circuit, which is still the only Court of Appeals to address this issue, affirmed the District Court’s decision. See also Black Warrior Riverkeeper v. Birmingham Airport Authority, 561 F. Supp. 1250 (N.D. Ala. 2008) (applying the 120th-day exception to the citizen suit bar and allowing the same plaintiff to go forward in a separate case filed against other defendants).
Continue Reading...Coeur Alaska, Inc. v. Southeast Alaska Conservation Council et al
On June 22, 2009, the Supreme Court held 6-3 that the Corps, rather than EPA, has authority to permit the discharge of a rock and water mixture called “slurry” from a mine froth flotation process to a nearby lake, reversing the Ninth Circuit’s decision that the proposed discharge would violate the EPA’s performance standard and §306(e) of the Clean Water Act. Coeur Alaska, Inc. v.. Southeast Alaska Conservation Council et al., __U.S.__ (No. No. 07–984, June 22, 2009). Section §402(a) of the Clean Water Act forbids the EPA to issue permits for fill materials falling under the Corps’ §404 authority. Because §404(a) empowers the Corps to “issue permits . . . for the discharge of . . . fill material,” and the agencies’ joint regulation defines “fill material” to include “slurry . . . or similar mining-related materials” having the “effect of . . . [c]hanging the bottom elevation” of water, 40 C.F.R. §232.2, Justice Kennedy's opinion for Court states, the slurry Coeur Alaska wishes to discharge into the lake falls within the Corps’ §404 permitting authority. The Clean Water Act is ambiguous on the question whether §306 applies to discharges of fill material regulated under §404, however EPA’s internal “Regas Memorandum” states that the performance standard applies only to the discharge of water from the lake into the downstream creek, and not to the initial discharge of slurry into the lake. The dissent , written by Justice Ginsburg, takes the view that a discharge covered by a performance standard must be authorized, if at all, by EPA.
CLEAN WATER ACT PERMITTING REQUIRED FOR PESTICIDE APPLICATIONS
It is well known that EPA rules developed under the Bush Administration have not fared well in the federal courts. Earlier this year, a 2006 EPA rule that exempted the application of pesticides to surface waters from Clean Water Act NPDES permitting requirements suffered a similar fate in Nat’l Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009). The effect of this ruling will likely require any person or governmental entity throughout the United States that applies pesticides and insecticides near or onto waters to first obtain an NPDES permit.
A. The History of Pesticide Regulation under the Clean Water Act.
In Nat’l Cotton Council of America v. EPA, the court evaluated the legality of a 2006 EPA rule which provided that the application of pesticides and herbicides to and over surface water to control pests, weeds and insects consistent with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not require an NPDES Permit.
Continue Reading...U.S. EPA Issues Precedent-Setting Stormwater Decision
On December 5, 2008, the U.S. EPA Region 1 announced that it would use its “residual designation authority” under Clean Water Act Section 402(p)(2)(3) to regulate owners of properties that discharge storm water into a three square mile urban watershed located within a major commercial center near downtown Portland, Maine. Landowners with one acre or more of existing “impervious surface” in the Long Creek watershed, such as parking lots, roads, and rooftops, will be required to obtain storm water permits under the National Pollutant Discharge Elimination System (NPDES). The EPA decision was prompted by a March 6, 2008 petition from Conservation Law Foundation (CLF) asserting that certain storm water dischargers be required to obtain NPDES permits.
Continue Reading...Entergy Corp. v. Riverkeeper, Inc.
The Supreme Court upheld EPA’s decision not to mandate closed-cycle cooling systems, or equivalent reductions, for cooling water intake because the cost of closed-cycle would be nine times the estimated cost of compliance and because other technologies could approach the performance of closed-cycle operation. Entergy Corp. v. Riverkeeper, Inc., ___U.S. __(No. 07-588, April 1, 2009). EPA’s view that "best technology available for minimizing adverse environmental impact" allows consideration of the technology’s costs and of the relationship between those costs and environmental benefits is a reasonable interpretation of the statute, the Court held. When Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language. The court noted that even respondents recognize that some comparison of costs and benefits is permitted. It remains to be seen whether the impact of the decision will be limited to Section 316 of the Clean Water Act or whether it will be relied on to support the proposition that EPA may consider costs and benefits in other contexts where not expressly precluded by statute.
EPA CAFO RULE - RIGHTING ITS COURSE??
Has the EPA gone far enough to overcome the successful Waterkeeper Alliance challenge to its CAFO Rule?
In 2005, the 2nd Circuit Court of Appeals held EPA’s 2003 CAFO Rule exceeded its authority. The challenged rule required certain concentrated animal feeding operators to apply for an NPDES water permit or prove none was needed. The court held that having only a potential to discharge was not enough to require a permit. In 2008, the EPA revised its CAFO Rule, announced on November 20, 2008 at 73 Fed. Reg. 70,418 as “Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the Waterkeeper Decision”-did it do enough to survive a challenge?
Continue Reading...Native American Water Rights in Oklahoma
The ownership of the Illinois River and its watershed in Oklahoma is currently at issue in Federal Court in the Northern District of Oklahoma in a case brought against the poultry industry. State of Oklahoma v. Tyson Foods, inc., et al., Case No. 05-CV-329-GFK (PJC).
In this case, the Attorney General for the State of Oklahoma sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the disposal of poultry litter in the watershed. The suit alleges claims under CERCLA, RCRA and nuisance, among other things. The poultry companies assert that the State has no standing to sue because, in this geographic area, under applicable treaties the natural resources (including the water in the Illinois River) are owned exclusively by the Cherokee Nation and not the State of Oklahoma. The defendants’ argument relies heavily on Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), which held that under various treaties, the Cherokee, Choctaw and Chickasaw Nations own fee title to the land, minerals, sand and gravel in and under the bed of the Arkansas River in Eastern Oklahoma.
The Attorney General asserts that the State of Oklahoma is the exclusive owner of the stream water, not the Cherokee Nation, and relies on the laws and authorities which prescribe the rights and privileges of a new state. The State also claims under other cited authorities that even if it does not hold exclusive ownership of the water in the Illinois River, neither does the Cherokee Nation. The Cherokee Nation is not a party and has not filed a motion to intervene in the case.
Because of treaty similarities, a decision on this issue by the Tulsa Federal Court could well determine the ownership rights of all the Five Civilized Tribes, not just the Cherokees, as to water in any stream or river within or abutting the boundaries of the lands included within their original treaty grants. Thus, it could affect the ownership of stream water in approximately half of the State of Oklahoma. It could further have a significant impact on both development of the Oklahoma Comprehensive Water Plan now in progress, and the issue of who has the right to sell water to both in‑state and out‑of‑state purchasers (i.e., Texas).
PENNSYLVANIA CLEAN WATER AND BROWNFIELDS INVESTMENT OF STIMULUS FUNDS
Among the priorities under the $787.5 billion American Recovery and Reinvestment Act of 2009 is repairing, rebuilding, and constructing the nation’s water infrastructure. Approximately $6 billion will augment the EPA’s clean water and drinking water state revolving funds, of which approximately $221 million will be disbursed to the Commonwealth of Pennsylvania’s Infrastructure Investment Authority (PennVest). The governing board of PennVest is appointed by Governor Rendell, and I have been serving as its chair for the past six years.
Continue Reading...More Clean Water Act Citizen Suits on the Way?
At least in the Southeast, the popularity of Clean Water Act citizen suits has waxed and waned over the course of the Act’s 37 year history. However, our firm’s environmental practice group began to see a renewed interest in citizen suits a couple of years ago, and a recent decision by the Eleventh Circuit Court of Appeals may lead to an even greater resurgence.
Continue Reading...WHOA THERE
Broad statement of underlying support cannot sustain EPA regulatory definition of navigable waters [1]
EPA’s broad regulatory reach on navigable waters is rejected by the United States District Court for the District of Columbia.
Setting aside the EPA’s regulatory definition of navigable waters, the D.C. Circuit Court found the EPA’s definition was inadequately explained in light of recent United States Supreme Court cases. Oil producing facilities that add pollutants to navigable waters were required to develop spill prevention, control and counter measure plans under a Clean Water Act regulation that broadly defined navigable waters. Affected industry participants and associations successfully challenged the regulation.
The question became whether in promulgating a regulation in an area where there has been recent Supreme Court activity whether the EPA considered all the relevant factors. If it did not, plaintiffs argued the EPA’s decisions were arbitrary and capricious or a clear error of judgment. The EPA argued while concise, its explanation was adequate. Its explanation came in a response to a comment and provided in part: “The case law supports a broad definition of navigable waters, such as the one published today, and that definition does not necessarily depend on navigability in fact.”[2]
The court could not reconcile, however, recent cases, that do not define navigable waters as broadly as in the EPA’s expansive rule. Noting recent courts have reined in the reach of the definition of navigable waters to not reach the fullest extent of the commerce clause, the court found inadequate EPA’s brief comment statement. Thus, the court agreed the EPA rule was not the product of reasoned decision making and struck it.
[1] American Petroleum Ind. v. Johnson, No. 02-2247 (D.D.C. March 31, 2008) (LEXIS 24963).
[2] 2002 SPCC Rule, 67 Fed. Reg. at 47,075.
Oregon Water Developments
Oregon Governor Ted Kulongoski has announced that water will be among the top three priorities for the 2009 legislative session. During the interim, here are some developments to track:
Oregon Oasis Project
During the 2007 legislative session, agricultural interests in northeast Oregon proposed the Oasis Project, a bill (H.B. 3525) to withdraw up to 500,000 acre-feet of water per year for 25 years from the Upper Columbia River (above Bonneville Dam) for irrigation purposes. The Oasis Project was offered as a solution to shrinking water supplies for high value agriculture in eastern Oregon and to provide a measure of equity relative to Columbia water use by Oregon’s neighbors.
Of the total river flow of 198 million acre-feet per year, irrigated agriculture withdrawals comprise 6.93%. Of that amount, Idaho withdraws 52.5%, Washington 32.8%, Montana 7.3% and Oregon 7.4%. If the Oasis Project were to be implemented, its share of water drawn from the Columbia would increase to 9.25%.
The reason that Oregon’s share is relatively small is that the state placed a “temporary” moratorium on such withdrawals in 1994 that remains in place to this day. In December 1993, the four Northwest governors signed a letter suggesting that the states defer to the Northwest Power Planning Council for proposing a cooperative policy for salmon recovery with federal agencies. In a January 6, 1994 letter, Oregon’s representatives to the Northwest Power Planning Council requested that the WRD adopt rules temporarily restricting use of Columbia River water. This “temporary” moratorium has lasted 13 years. In the meantime, Washington has actively encouraged new irrigation in the Columbia basin and continues to do so. The 500,000 af/y withdrawal proposed by the Oasis sponsors represents about 0.0025% of the total river flow.
Of the total diversion from the Columbia that Oasis would authorize, 195,000 would be devoted to replacing depleted ground water supplies for irrigation of 65,000 acres. 300,000 acre feet of “new” water would be used to add 100,000 acres under cultivation. 5,000 acre feet would be available for municipal use. A fee of $10 per acre-foot of new water would be used by the WRD to develop and manage instream water conservation projects in collaboration with the Warm Springs and Umatilla tribes.
H.B. 3525 failed to pass in 2007, but the bill’s sponsors continue to be hopeful of ultimate success. In the meantime, they are exploring other alternatives. Prime among them is withdrawing Columbia River water during the winter months for aquifer storage and recovery (ASR). ASR, if feasible, could replenish the critical ground water areas and provide a sustainable water source for many years. A bill is being proposed for the interim 2008 legislative session to fund a feasibility study of this approach. Another potential alternative is to establish a regional water bank to facilitate cooperative use of the resource. Continue Reading...Minimum Streamflow in Arkansas
With some exceptions and common law developed standards, Arkansas has traditionally followed the reasonable use theory of the riparian doctrine. A riparian user must use water in a manner that is reasonable compared to others’ rights (including as to ground water).
As a mid-south state, Arkansas receives a moderate amount of rain per year (approximately 49.19 inches on average since 1895 compiled from the Arkansas Natural Resource Commission’s Arkansas Ground Water Protection and Management Report for 2006). Stress on the amount, use of and quality of its underground aquifers, primarily in east and southeast Arkansas, have resulted in increased scrutiny and planning for alternate water sources, including from conservation, recovery and surface water.
Arkansas has no current active system in operation for regulating water usage. The Arkansas Natural Resources Commission, however, is directed to monitor our state’s water resources and can set minimum streamflows by rulemaking (but this step requires consultation with other state agencies). Water needs to be considered are domestic and municipal water supplies; agricultural and industrial; navigation; recreational; fish and wildlife and other ecological needs. The regulations and laws describe preferences and priorities, but are untested in practice.
Minimum streamflows are to be set on a case by case basis, defining such stream flows as the “quantity of water required to meet the largest of the following instream flow needs as determined on a case-by-case basis:” (1) interstate compacts, (2) navigation, (3) fish and wildlife, (4) water quality, and (5) aquifer recharge.
After minimum flows are established, non-riparian permits may be applied for from “excess surface water.” Excess surface water means twenty-five percent (25%) of the amount of water available on an average annual basis from any watershed basin above that amount required to satisfy all of the following:
1. Existing riparian rights as of June 28, 1985
2. The water needs of federal water projects existing on June 28, 1985
3. The firm yield of all reservoirs in existence on June 28, 1985
4. Maintenance of instream flows for wish and wildlife, water quality, aquifer recharge requirements, and navigation
5. Future water needs of the basis of origin as projected in the State’s Water Plan
6. Additionally, in the White River Basin, permitted transfers may not exceed on a monthly basis an amount that is 50% of the monthly average.
Minimum streamflow is important because of its relevance to the Commission’s planning in the case of a possible shortage. Separate and apart from its use in this way, minimum streamflows are also used to determine when excess surface water is available for transfers to nonriparians.
These standards may be reviewed in the near future to begin establishing minimum streamflows and potentially, associated protected levels, which the Commission may attempt to implement by rule under shortage conditions. The White River is scheduled as the first river to be reviewed in conjunction with the Memphis District Corps of Engineers’ Grand Prairie Area Demonstration Project. While such irrigation projects were unusual in eastern states, another such project is on the horizon with the Corps’ November 2007 Record of Decision issued for the Bayou Meto Basin of Arkansas.
Thus, Arkansas’s riparian rights doctrines are yielding to state systems of oversight based on depleted aquifers and increased demands. For more information on Arkansas’s water resources and rules, click here.