LOS ANGELES — The Second District California Court of Appeal on Dec. 20 affirmed a lower court ruling that groundwater in the state’s Mission water basin is a subterranean stream and is subject to the permitting authority of the California State Water Resources Control Board (SWRCB) (Carlsbad, et al. v. California State Water Resources Control Board, No. B283861, Calif. App., 2nd Dist., Div. 3, 2018 Cal. App. Unpub. LEXIS 8628).
SACRAMENTO, Calif. — California’s Third District Court of Appeal on Dec. 12 reversed a trial court ruling that a 1920 water rights decree limited when an owner could use its water and prohibited it from transferring its share of water outside the watershed (Orange Cove Irrigation District v. Los Molinos Mutual Water Company, Nos. C078323 and C078888, Calif. App., 3rd Dist., 2018 Cal. App. LEXIS 1143).
TOPEKA, Kan. — A Kansas state appeals court on Jan. 11 affirmed a trial court’s permanent injunction against a junior water right holder who was found to be infringing on the senior water right of a neighbor (Garetson Brothers, et al. v. American Warrior, Inc., et al., No. 117,404, Kan. App., 2019 Kan. App. LEXIS 3).
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Jan. 7 dismissed without prejudice the appeal of a California water rights holder who has grown impatient with a 10-year stay of complex litigation in which he is involved (United States, et al. v. Gregory Burnett, et al., No. 17-55664, 9th Cir., 2019 U.S. App. LEXIS 418).
WASHINGTON, D.C. — The Federal Circuit U.S. Court of Appeals on Dec. 17 affirmed the U.S. Court of Federal Claims’ denial of claims by a city, a county, a water company and two water districts that the U.S. Bureau of Reclamation violated a water delivery contract by denying the plaintiffs less water than they were contractually due (Stockton East Water District, et al. v. United States, No. 17-2431, Fed. Cir., 2018 U.S. App. LEXIS 35267).
CARSON CITY, Nev. — The Nevada Supreme Court on Jan. 3 temporarily stayed a state trial court order ruling that the state engineer lacks authority to impose restrictions on the drilling of new domestic water wells in the state’s Pahrump water basin (Jason King, P.E., et al. v. Pahrump Fair Water, LLC, et al., No. 77722, Nev. Sup.).
The partial shutdown of the federal government is impacting water litigation in which the United States is a party, according to Jan. 3 and earlier filings three courts.
WASHINGTON, D.C. — The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on Dec. 11 announced a proposed revised definition of the Waters of the United States for purposes of enforcing the Clean Water Act (CWA), 33 U.S.C. § 1251(a), an action that would directly impact the beleaguered Clean Water Rule: Definition of "Waters of the United States," 80 Fed. Reg. 37,054, June 29, 2015.
TULSA, Okla. — An Oklahoma federal judge on Dec. 7 granted a motion by plaintiffs in two Clean Water Rule cases to reopen their cases (Oklahoma, et al. v. United States Environmental Protection Agency, et al., No. 15-381, Chamber of Commerce of the United States of America, et al. v. United States Environmental Protection Agency, et al., No. 15-386, N.D. Okla.).
HELENA, Mont. — The Montana Supreme Court on Dec. 11 affirmed denial of a ranch’s motion to reopen a water rights case and to substitute itself as an objector (Little Big Warm Ranch, LLC v. Cheri L. Doll, et al., No. DA 18-0123, Mont. Sup., 2018 Mont. LEXIS 430).
New developments in the following multiplaintiff, interstate or notable water rights cases are marked in boldface type.
SAN FRANCISCO — The U.S. Bureau of Reclamation and U.S. National Marine Fisheries Service on Nov. 20 voluntarily dismissed 12 appeals of a federal district court judgment in favor of two Native American tribes over the release of water into the Klamath River (Yurok Tribe, et al. v. United States Bureau of Reclamation, et al., and Hoopa Valley Tribe v. United States Bureau of Reclamation, et al., Nos. 17-15676, et al., 9th Cir.).
WASHINGTON, D.C. — Paul Souza on Nov. 21 was designated as the Trump administration’s lead official in charge of managing the Klamath Irrigation and Central Valley Project’s compliance with a recent presidential memorandum on water supply and delivery in the western United States, according to a joint press release by the Interior and Commerce departments.
DENVER — The 10th Circuit U.S. Court of Appeals on Nov. 9 clarified language in its August ruling in a New Mexico water adjudication but did not change the outcome of its decision (New Mexico, ex rel. State Engineer, et al. v. Nansy Carson, et al., No. 17-2147, 10th Cir., 2018 U.S. App. LEXIS 32161).
CINCINNATI — Although the U.S. Supreme Court special master overseeing Mississippi’s interstate groundwater case against Tennessee on Nov. 29 said Mississippi “burned its boats” by disclaiming equitable apportionment of water rights, defendant Tennessee is still not entitled to summary judgment and the case should proceed to an evidentiary hearing so the high court can rule on whether water under the two states is an intrastate or interstate resource (Mississippi v. Tennessee, et al., No. 143, Original, U.S. Sup.).
SAN JOSE, Calif. — Reconsidering a prior ruling in light of a subsequent California Supreme Court opinion, the Sixth District Court of Appeal on Nov. 8 reversed its previous ruling in a groundwater extraction fee case and reversed a trial court’s ruling (Great Oaks Water Co. v. Santa Clara Valley Water District, No. H035260, Calif. App., 6th Dist., 2018 Cal. App. Unpub. LEXIS 7595).
DENVER — The Colorado Supreme Court on Nov. 13 affirmed a contempt-of-court finding by a state water court against a landowner who the state says defied orders to stop his illegal diversion of water over several years, even in the face of substantial fines and imprisonment (People of Colorado, ex rel. State Engineer, et al. v. Robert Gregg Sease, No. 17SA130, Colo. Sup., 2018 Colo. LEXIS 930).
SACRAMENTO, Calif. — Saying there are “unresolved issues” related to California’s Delta Plan, the state Department of Water Resources (DWR) on Dec. 7 said it is withdrawing its Certification of Consistency for the state’s WaterFix project.
PROSSER, Wash. — A Washington state court judge on Nov. 27 said the State Ecology Department’s application of state water law and the department’s refusal to apply a five-year grace period for water transfers constitutes a rule that has not gone through the state’s rule-making procedures (Loyal Pig, LLC, et al. v. Washington, et al., No. 18-2-00592-0, Wash. Super., Benton Co.).
CHARLESTON, S.C. — A South Carolina federal judge on Dec. 4 clarified that his August order vacates the so-called Suspension Rule for the Clean Water Rule: Definition of "Waters of the United States," 80 Fed. Reg. 37,054, June 29, 2015, and enjoins the Suspension Rule nationwide (South Carolina Coaster Conservation League, et al. v. E. Scott Pruitt, et al., No. 18-330, D. S.C., Charleston Div.).