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Energy, Environment and Resources Update—Issue 8

Issue 8 | February 2016


California to Establish Guidance for Human Right to Water

By Thomas M. Berliner

The California State Water Resources Control Board has issued a draft resolution adopting the human right to water as a core value and directing its implementation in Water Board programs and activities. The Water Board is the agency within California that regulates the use of water. In 2012, the California Water Code was amended to establish the policy of the state that every human being has the right to safe, clean, affordable and accessible water adequate for human consumption, cooking and sanitary purposes. All relevant state agencies are required to consider this policy when revising, adopting or establishing policies, regulations and grant criteria, as pertinent. The guidance does not expand any obligation of the state to provide water or to require the expenditure of additional resources to develop water infrastructure beyond the obligation to consider when establishing policies, regulations and grant criteria.

When first proposed, the amendment to the state legislation was opposed by some water agencies that were concerned regarding the vagaries of how to provide for the human right to water. As a result, the legislation clarified that it did not impose new obligations on local water agencies or affect water rights. The state’s guidance focuses primarily on water quality; however, there are implications for water rights as the Water Board must consider the relative benefit to be derived from all beneficial uses, including any uses specified in any relevant water quality control plan. While not adopting a specific standard, the Water Board has cited to regulations that establish guidance for the indoor domestic use of water at either 50 or 55 gallons per capita per day. During the recent California drought, various communities lost water supply and many domestic wells went dry. Much of this was a result of declining groundwater levels. It has been argued that during the drought, the state’s failure to allow for the delivery of surface water resulted in overreliance on groundwater, which in turn, resulted in the loss of water supply. How this human right to water will affect the Water Board’s future rulings regarding the provision of minimum supplies of water during a drought is yet to be seen.

California to Establish Tribal Traditional and Cultural Subsistence Fishing and Other Subsistence Fishing as Beneficial Uses of Water

By Thomas M. Berliner

The California State Water Resources Control Board is proposing to issue direction to its staff to develop a statewide class of beneficial uses pertaining to tribal traditional and cultural subsistence fishing and other subsistence fishing as beneficial uses pursuant to the Porter-Cologne Water Quality Control Act. The Water Board’s current list of beneficial uses of water in California, which was established in 1996, does not contain an explicit beneficial use for tribal traditional, cultural or subsistence fishing. The Water Board has recognized the importance of identifying and describing beneficial uses unique to California Native American tribes in addition to subsistence fishing by other cultures or individuals. Currently, the Water Board is developing an amendment to one of its water quality control plans pertaining to the consumption of fish, particularly related to mercury contamination. Mercury contamination in California streams is a result of legacy gold-mining activities starting in the mid-1800s. Mercury was used to separate gold out from ore during the gold-mining process.

Tribal subsistence fishing tends to focus on salmon and steelhead. Streams in California are typically already designated with cold water for anadromous fish as a beneficial use. Whether this designation will result in any significant change to water operations is unknown, but it is unlikely.


Cert Petition for Chesapeake Bay Total Maximum Daily Load

By Seth v.d.H. Cooley

As the Environmental Protection Agency (EPA) Clean Power Plan litigation takes center stage, another major case involving cooperative federalism—or, perhaps more accurately stated, another case involving a dispute as to what constitutes cooperative federalism—is on the doorstep of the U.S. Supreme Court. In a Petition for Writ of Certiorari filed in November, 2015, the American Farm Bureau Federation and other petitioners asked the Supreme Court to review the decision of the U.S. Court of Appeals for the Third Circuit upholding the Chesapeake Bay TMDL (Total Maximum Daily Load) promulgated by EPA pursuant to the federal Clean Water Act (CWA). The Petition for Certiorari argues that “EPA’s power grab has distorted the federal-state balance that Congress sought to preserve in the CWA.” Respondents, in their January 19, 2016 briefs in opposition, stress that the Chesapeake Bay TMDL was not imposed on the Bay states by EPA, but was instead negotiated and supported by those states.

Interestingly, the outcome of the TMDL litigation, if the Supreme Court grants certiorari, will be closely evaluated for its potential bearing on the Supreme Court’s almost-certain, coming consideration of the Clean Power Plan (presently being litigated in the U.S. Court of Appeals for the District of Columbia Circuit, and the subject of the widely publicized stay order issued on February 9, 2016, by the Supreme Court). Although the Third Circuit ruled in favor of EPA and the Bay states in the TMDL litigation, and rejected the assertion that the TMDL had altered the federal-state balance, it said that it might “reach a different result if the TMDL in fact made land-use decisions diminishing state authority in a significant way.” On the record before it, the Third Circuit found that the claims of diminished state authority were “long on swagger but short on specificity.” In the Clean Power Plan litigation, an overarching question is whether EPA has established a scheme giving it effective power to dictate such land use decisions (at least those that produce greenhouse gases). In the TMDL litigation, the Third Circuit noted that “the TMDL nowhere prescribes any particular means of pollution reduction to any individual point or nonpoint source,” but instead “contains pollution limits and allocations to be used as an informational tool used in connection with a state’s efforts to regulate water pollution.” Will the D.C. Circuit view the Clean Power Plan as being equally deferential to the states, or will it see that plan as an actual, unauthorized “power grab” by the federal government? How will its reasoning affect the Supreme Court’s review? It will be fascinating litigation to follow.

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