Legal Updates

So you think you’re the next Supreme Court Justice, huh? Well then, take a look at the legal updates below and see what the courts are saying about stormwater issues throughout the nation.

The State Water Board”has adopted a new National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (“Construction General Permit”).

The new Construction General Permit, which was issued pursuant to the federal Clean Water Act and is enforceable through citizens’ suits, represents a dramatic shift in the State Water Board’s approach to regulating new and redevelopment sites, imposing new affirmative duties and fixed standards on builders and developers. Detailed account from Morrison and Foerster, link below.

http://www.mofo.com/news/updates/files/15947.html

Supreme Court Agrees to Hear First Case Involving Transboundary Aquifer

Mississippi and Tennessee are headed to the U.S Supreme Court for resolution on a lawsuit in which the state of Mississippi is claiming Memphis Light, Gas and Water, the municipally-owned utility for the Memphis area, is deriving about 30% of the water it pumps from the Memphis Sand aquifer (aka the Sparta aquifer) from beneath Mississippi. This amounts to about 60 mgd (million gallons per day) coming from beneath the Mississipians’ land.

http://internationalwaterlaw.org/blog/?p=150

Court Restores Clean Water Protections in Southern California

In post-trial motions and objections to the ‘Basin Plan lawsuit’ filed earlier this summer, NRDC, Heal the Bay, and Baykeeper argued that preventing the water board from enforcing the standards, even temporarily, would be harmful to the environment and public health.  Judge Colaw agreed, granting the request to keep the regulations in place while the Regional Board evaluates their practicality and cost. More

At the Intersection of the Endangered Species Act and Water Supply in CA

In a ruling similar to the one in May 2007 regarding the Delta Smelt, a federal judge has ruled that California's water systems threaten to push native salmon stocks, listed on the Endangered Species Act, into extinction.  However, the judge stopped short of ordering any immediate water cutbacks.  The next phase of the trial will address proposed interim remedies--what changes in operations are needed to protect the fish between now and March 2009.A new biological opinion, which will be used to guide project operations on the Sacramento River, is not expected to be final until March 2009.  This decision comes on the heels of a first time ever decision by the Pacific Fisheries Management Council to cancel the salmon fishing season off the coast of California and much of Oregon because of depleted chinook salmon in the Sacramento River area. More

Los Angeles Regional Water Quality Control Board Forced to Revisit its Basin Plan

Orange County Superior Court Judge Thierry Patrick Colaw on July 2 ordered the Los Angeles Regional Water Quality Control Board (empowered to enforce the Clean Water Act) to "void and set aside" the Basin Plan and to reopen and review water quality standards in the plan that applies to stormwater and urban runoff.  Judge Colaw also ordered that the standards be revised, where necessary, for water quality conditions that are achievable and takes into consideration their economic impact on "dischargers" like cities.  More