By Diane Kindermann Henderson and Elias E. Guzman

Two weeks after the United States Supreme Court rendered its opinion in Rapanos/Carabell, et al. v. United States (2006) 126 S.Ct. 2208, the United States District Court for the Northern District of Texas delivered an opinion in United States v. Chevron Pipe Line Co. (D. Tex. June 28, 2006) 2006 U.S. Dist. LEXIS 47210. The court in Chevron was the first federal district court to apply the Army Corps of Engineers’ jurisdictional authority standards enunciated in Rapanos. In granting summary judgment, the Chevron court opined that the connection of generally dry channels and creek beds does not create a “significant nexus” to a navigable water simply because one fed into the next during the rare times of actual flow.
Continue Reading District Court Struggles with Rapanos in U.S. v. Chevron Pipe Line

The California Regional Water Quality Control Board, Central Valley Region (“Regional Board”), held a Public Advisory Committee meeting regarding its Irrigated Lands Program on May 9, 2005. The Regional Board hinted that in the next few months it will begin sending Water Code, section 13267 “Investigation of Water Quality” letters to those that discharge from…

by Robert T. Yamachika

The United States Supreme Court recently decided South Florida Water Management District v. Miccosukee Tribe of Indians 124 S. Ct. 1537 (2004), a case which has the potential to significantly affect the government’s authority to regulate discharges into the Nation’s waters. The case revolves around several elements of the South Florida Water Management District’s (“District”) Central and South Florida Flood Control Project (“Project”), consisting of a vast array of levees, canals, pumps and water impoundment areas in the land between south Florida’s coastal hills and the Everglades. A canal, referred to as the C-11 canal (“Canal”), collects groundwater and rainwater from a 104 square mile area which includes urban, agricultural and residential development. At the end of the Canal the District operates a pumping facility (“Pump”) that transfers water from the Canal into the largest of several “water conservation areas” (“WCA-3”) that are remnants of the original Everglades. The Canal and WCA-3 are separated by two levees. During periods of rain, water collects on the western side of the levees in the wetland ecosystem of WCA-3, while rainwater on the eastern side falls on agricultural, urban and residential land where it absorbs contaminants produced by human activities before it enters the Canal. In particular, the water in the Canal contains elevated levels of phosphorous from fertilizers used within the basin. As a result, when the water from the Canal is pumped across the levees, the phosphorous alters the balance of WCA-3’s ecosystem and stimulates growth of algae and plants.
Continue Reading United States Supreme Court Mixes a New Water Quality Cocktail – Beware of Mental Confusion and Bitter Aftertaste

by Robert T. Yamachika

The extent of Clean Water Act (“CWA”) jurisdiction has been a hotly debated topic over the past few years ever since the United States Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC“). In SWANCC, a divided Supreme Court (5-4) invalidated the Migratory Bird Rule which the Army Corps of Engineers (“ACOE”) used to extend the CWA’s jurisdiction to non-navigable, isolated waters used as habitat by migratory birds. Although the Court struck down the Migratory Bird Rule, it failed to make clear what waters and wetlands are subject to the CWA’s jurisdiction. This has resulted in considerable confusion and the courts have continued to struggle with determining the extent of the CWA’s jurisdiction.
Continue Reading Clean Water Act Update: Three Recent Wetland Cases Support Narrow Reading of SWANCC

by Diane G. Kindermann Henderson

Recent state and federal changes to stormwater control requirements have increased the number of development projects subject to permitting requirements and have drawn additional localities into regulation of stormwater runoff.
Continue Reading Selecting the Right BMPs for Your City, County or Project