Farmers filed suit alleging injury to their water rights after the Nevada State Engineer and the California State Water Resources Control Board approved change applications for a voluntary water rights leasing program managed by the National Fish and Wildlife Foundation in the Walker River Basin. The Ninth Circuit principally held that the Decree court failed to defer to the findings and conclusions of the state agencies and, to the extent the Decree court entered its own findings, those findings were clear error. In this case, the Engineer properly found that a transfer to the Foundation limited to the consumption portion would avoid conflict and injury to other existing water rights, the findings were supported by substantial evidence, and the Engineer applied the correct legal rule. The panel also held that the export restriction of the Walker River Decree did not prohibit delivering water to Walker Lake because Walker Lake was part of the Walker River Basin. View "United States v. U.S. Board of Water Commissioners" on Justia Law

The Jim Hutton Educational Foundation, a surface-water user, claimed that a statute prohibiting any challenge to a designated groundwater basin that would alter the basin’s boundaries to exclude a permitted well was unconstitutional. The water court dismissed that claim for lack of subject matter jurisdiction, concluding that the surface-water user had to first satisfy the Colorado Groundwater Commission that the water at issue was not designated groundwater. The Colorado Supreme Court affirmed that dismissal, because jurisdiction vests in the water court only if the Colorado Groundwater Commission first concludes that the water at issue is designated groundwater. Therefore, the water court lacked subject matter jurisdiction over the Foundation's claim. View "Jim Hutton Educ. Found. v. Rein" on Justia Law

In 2011, the City of Aspen adopted an ordinance which imposed a regulatory scheme designed to meet the city council’s “duty to protect the natural environment and the health of its citizens and visitors.” Under the ordinance, grocery stores within Aspen’s city limits were prohibited from providing disposable plastic bags to customers, though they could still provide paper bags to customers, but each bag is subject to a $0.20 “waste reduction fee,” unless the customer was a participant in a “Colorado Food Assistance Program.” This case presented the question of whether Aspen’s $0.20 paper bag charge was a tax subject to voter approval under the Taxpayer’s Bill of Rights (“TABOR”). The trial court held that this charge was not subject to TABOR because it was not a tax, but a fee. The court of appeals concurred with this holding. The Colorado Supreme Court also agreed, finding the bag charge was not a tax subject to TABOR. View "Colorado Union of Taxpayers Found. v City of Aspen" on Justia Law

Petitioners challenged EPA's final rule listing the West Vermont Drinking Water Contamination Site on the National Priorities List (NPL) of hazardous waste sites that are high priorities for remedial action. The DC Circuit held that the listing of the site was arbitrary and capricious where EPA failed to consider an important aspect of the problem regarding the treatment of two aquifers by entirely failing to address evidence that runs counter to the agency's decision. The court also held that EPA has failed to offer substantial evidence to support its finding of an interconnection between the aquifers, it has ignored evidence undercutting its conclusion, and it has failed to state a reasoned basis for overcoming the regulatory presumption of non-interconnection. The court rejected petitioners' claim that the rule should be vacated based on EPA's failure to take into account the direction of ground water flow. Therefore, the court granted the petitions for review, vacated the rule to the extent that it placed the Site on the NPL, and remanded to EPA for further proceedings. View "Genuine Parts Co. v. EPA" on Justia Law

Due process requires junior water rights holders in the Diamond Valley Hydrographic Basin No. 153 (Diamond Valley) be given notice and an opportunity to participate in the district court’s consideration of the request of a vested, senior water rights holder to order the State Engineer to curtail junior water rights in Diamond Valley. Because water in Diamond Valley has been over-appropriated and pumped at a rate exceeding its perennial yield for more than four decades, groundwater levels in southern Diamond Valley have fallen over 100 feet. Sadler Ranch, which claims to be a vested, senior water rights holder in Diamond Valley, petitioned the district court to order the State Engineer to initiate curtailment proceedings regarding junior water rights in Diamond Valley. The Supreme Court granted this writ petition, holding that an upcoming show cause hearing may result in a court order to begin curtailment proceedings, resulting in possible deprivation of property rights. Therefore, due process required junior water rights holders in Diamond Valley to be given notice and an opportunity to be heard before the district court conducted the hearing. View "Eureka County v. Seventh Judicial District Court" on Justia Law

The State Water Resources Control Board’s adoption of a permit fee schedule was proper and violated neither Cal. Water Code 13260(d)(1)(B) or (f)(1) nor Cal. Const. art. XIII A. By statute, the Board has five members. At the time of the meeting at which the Board members voted to approve the fee schedule, two of those seats were vacant. Two of the three members voted to approve one of the proposed fee schedules, and the third member abstained. Based on that vote, the Board adopted emergency regulations retroactively revising the fee schedule. Plaintiff challenged the Board’s approval of the fee schedule. The trial court entered judgment for the Board. The court of appeal affirmed. The First Circuit affirmed, holding (1) procedural challenge; (2) the fee schedule did not violate section 13260(d)(1)(B) or (f)(1); and (3) the fees did not violate constitutional restrictions contained in article XIII A. View "California Building Industry Association v. State Water Resources Control Board" on Justia Law

Petitioner N. Miles Cook, III, appealed a Wetlands Council (Council) ruling upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. Because DES did not have the benefit of the New Hampshire Supreme Court’s interpretation of the term “need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining whether an applicant has met the permit requirements, and because, as the Council noted, the central issue was whether petitioner “could justify the expanded dock proposal based on his ‘need’ to access navigable water on a more frequent basis than he currently experiences with the existing dock,” the Supreme Court vacated DES’s decision and remanded to the Council with instructions to remand to DES for further consideration in light of the definition the Court adopted for the purposes of this opinion. View "Appeal of N. Miles Cook, III" on Justia Law

Plaintiff-homeowners alleged the copper piping in their homes was damaged by a chemical the defendant water districts added to tap water. Adding the chemical was authorized by regulation, however, and it was undisputed that the water districts complied with all statutory and regulatory standards. After a bifurcated bench trial on certain legal issues, the trial court entered judgment for the water districts, finding plaintiffs’ causes of action for nuisance and inverse condemnation were preempted by federal and state laws, and otherwise insufficient on the merits. The plaintiff homeowners appealed. After review, the Court of Appeal concluded plaintiffs’ causes of action failed on the merits, and thus affirmed. View "Williams v. Moulton Niguel Water Dist." on Justia Law

In this N.Y. C.P.L.R. 78 proceeding, the Court of Appeals held that the Appellate Division erred in foreclosing the possibility that title 9 of article 27 of the Environmental Conservation Law authorized the Department of Environmental Conservation’s (DEC) action unilaterally remediating the significant threat posed by hazardous wastes FMC Corporation (FMC) had released into neighboring properties. Moreover, the Court held that the interpretation of title 13 of article 27 adopted by both parties authorized DEC’s unilateral remediation effort, and therefore, any disputes over title 9 need not be resolved. View "FMC Corp. v. New York State Department of Environmental Conservation" on Justia Law

The Eighth Circuit affirmed the district court's grant of summary judgment for NPS, in an action alleging violation of the Administrative Procedure Act (APA), 5 U.S.C. 706, in establishing the boundaries of the Niobrara Scenic River Area (NSRA), both generally and with respect to his property. The court held that NPS engaged in a methodical, time-consuming boundary-drawing process, and it used the appropriate statutory standard to identify oustandingly remarkable values and it drew a boundary line that sought to protect those values. Furthermore, there was no evidence in the record that would lead the court to conclud that NPS subjected plaintiff to disparate treatment or acted in bad faith. View "Simmons v. Smith" on Justia Law