Page 10 - Litigation

S10 | MONDAY, MAY 5, 2014 | Litigation
| NYLJ.COM

Water
pumping between Elephant Butte and the mental Quality. Discussions among the three EPA’s interpretation was not supported by a

state line. New Mexico responds that New states toward a compact ended in March 2008. reasoned explanation. The court found that
Mexico is obligated under the compact to Florida argues that Georgia is consuming the EPA relied on one statutory goal—that
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deliver a deined quantity of water to Elephant more than its fair share of water. It estimates of not interfering with water quality manage-
Compacts are legally enforceable agreements Butte, and has complied with this require- that Georgia is using 74 percent of the water, ment activities, giving too little weight to the
that must be approved by the states and Con- ment.
Alabama 15 percent, and Florida 11 percent. “competing purpose” the court found in other
gress (U.S. Constitution Art. 1, §10, Clause 3, In order to obtain Article III original juris- As a result, Florida argues, the eastern oyster provisions of the statute, which “both estab-
“No state shall, without the Consent of the diction in the U.S. Supreme Court, Texas must and other ishery industries are declining, and lish the NPDES programs’ speciic federal-
Congress. . Enter into any Agreement or establish (1) a substantial issue between sov- listed species (three federal listed mussels state balance and exempt certain kinds of
Compact with another State. .”).
ereign states, (2) that is serious and suficient- and four candidates for listing) are impacted.
pollution but do not exempt water transfers.”
Because interstate compacts allocate water ly important to warrant consideration, and Florida argues that, with Georgia expecting The judge also held that, apart from the other
for the future, states must identify water avail- (3) that there is not another alternative forum to double its water consumption by 2020, the
laws, the EPA had failed to consider whether
ability and anticipate water needs with a fair available to resolve the dispute. The Supreme impacts will continue and increase. alternatives to the rule were consistent with
degree of certainty in order to conclude that Court asked the United States to weigh in on Georgia argues in opposition that low of the reasons the EPA gave for excluding water
the terms of the compact are suficient to the question of whether to hear Texas’ claim. river water from Georgia to Florida is con- transfers, and did not demonstrate that the
induce them to enter into it. Political consid- The Solicitor General iled a brief on Dec. 13, trolled by federal dams and reservoirs, not option the EPA chose was consistent with its
erations and an unwillingness to commit to 2013 taking the position that in the United the state of Georgia. The Army Corps of Engi-
future allocation can paralyze an attempt to States’ view, Texas has stated a claim and neers, which is responsible for the system, is analysis of congressional intent.
Most major metropolitan areas rely on
forge a compact. But the lexibility of com- the motion should be granted. In the United in the midst of updating its operating manu- water transfers for water supply. In chal-
pacts to address case-speciic issues in a way States’ view, delivery of water to Elephant als for the system—an effort, Georgia says, lenging the water transfer rule, the plaintiffs
ultimately agreeable to the states involved, Butte is not the end of the bargain among the that has been repeatedly stopped by years argued that the EPA had created an imper-
the autonomy retained by individual states states under the compact, otherwise, “Texas of litigation. Georgia argues that the Corps missible exception to the Clean Water Act’s
in the negotiation, and the relatively lower bargained for little” and “Texas’ allegations should be allowed to inish the update, and, prohibition against the “discharge of any
cost of reaching an agreement rather than of a compact violation are credible.”
until they do, the case is not ripe. Georgia pollutant,” deined as “any addition of any
litigating, make compacts a good solution for Typically, the Supreme Court appoints a
also argues the lack of low is Florida’s stated
water disputes generally. There are currently pollutant to navigable waters from any point
27 state compacts in place.
source,” without an NPDES permit. The EPA
argued that the rule was not contrary to the
Typical factors in these water disputes Clean Water Act because the statutory “navi-
tend to include:
gable waters” was used by Congress with a Two key factors drive the disputes: population growth and
• Conlicts about groundwater and surface “unitary water theory” in mind. Under that
water interaction and use
theory, once a pollutant enters waters of the drought. In the United States, water supply is no longer a concern
• Upstream users and downstream users United States, transferring water within the limited to the arid west.
at odds
• Competition among drinking water users, water body does not constitute an “addition”
agricultural users, and ecosystem consider- of a pollutant under the statute. The EPA also special master to hear water cases and report injury, and the Corps is in control of the low,
ations
pointed out that there would be huge admin- back to the court. The Solicitor General sug- so the Corps is an indispensable party that is
istrative costs for obtaining permits for the
• Water quality issues
thousands of water transfers that routinely gested that the court allow New Mexico to missing from the suit. It alleges that drought
• Endangered species and habitat protec- occur in supplying water.
ile essentially a motion to dismiss with the and overharvesting by Florida are factors.
tion
The decision conlicts with the Eleventh court, addressing Texas’ allegations, prior to Georgia’s brief in opposition was iled three
• Power use
appointing a special master. On Jan. 27, 2014, days after the decision in Texas v. New Mex-
• Fishing and other commercial pursuits Circuit, which upheld the water transfer rule. the court did just that. The parties are now ico, and so had the beneit of that decision,
• Navigation
This would raise the possibility of Supreme brieing the issues.
where the Supreme Court, at the suggestion
• Recreation
Court review if the Second Circuit afirms ‘Florida v. Georgia’: The Court Consid- of the United States, ordered the parties to
• Tribal rights and concerns
the district court decision, creating a con- ers the ACF River Basin. On Oct. 1, 2013, brief the issues on the equivalent of a motion
lict between circuits. The decision vacates
These factors are relected in the cases
the rule “to the extent it is inconsistent with Florida sought leave to ile a complaint in to dismiss. Georgia, consequently, suggests
pending before the court.
the statute.”
the U.S. Supreme Court asking the court to in the alternative in its opposition that the
‘Texas v. New Mexico’: The Court Consid- In addition to the water transfer rule deci- equitably apportion the interstate waters of court initiate the same process in this case
ers the Rio Grande. State of Texas v. State the Apalachicola-Chattahoochee-Flint River should it decide to take it up. As in Texas, the
of New Mexico and Colorado involves the sion, numerous lawsuits related to hydraulic basin (ACF Basin) (State of Florida v. State court has asked the United States to weigh
1938 Rio Grande compact among the three fracturing have proliferated in New York as of Georgia). Georgia opposed in a iling on in on the claim.
states and the delivery point at Elephant Butte a result of water issues raising home rule Jan. 31, 2014. The claim in the Supreme Court Water-related litigation before the court is
Dam, built in 1916. Texas brought an original authority to ban hydraulic fracturing driven iled by Florida against Georgia follows almost sure to increase as water supply and quality
complaint in the U.S. Supreme Court on Jan. by water supply and potential groundwater 20 years of litigation, regulatory action, and come under continued pressure.
contamination concerns. And in February,
8, 2013, seeking to require New Mexico to the Public Service Commission ordered compact attempts focused on the ACF Basin, In New York, More Catskill Mountains
abide by a changed method of allocation of Con Edison, which serves the New York which implicates the states of Florida, Georgia Litigation: Water Transfer Rule Held
water delivered under the 1938 Rio Grande and Alabama.
Invalid. In a 100-page opinion, the Southern
compact.
City metro area, to implement a $1 billion Atlanta is the site of the headwaters of ive District of New York decided that the U.S.
Under the compact, Colorado delivers plan to strengthen its electrical system from rivers. The Chattahoochee River lows 450 Environmental Protection Agency’s (EPA)
water to the New Mexico state line. New projected climate change impacts like severe miles to the Georgia/Florida border and the “water transfer rule” is invalid, in Catskill
Mexico delivers a quantity of water to Ele- storms, heat waves, and rising sea levels, as conluence of the Flint River. The two rivers Mountains Chapter of Trout Unlimited v. EPA,
phant Butte, which is 150 miles north of the part of a rate hike approved by the Commis- form the Apalachicola in Florida. There is a Case Nos. 08-CV-5606 &-8430(KMK) (op. of
Texas state line. The water enters Texas at sion. The requirement is the irst of its kind.
3.3 million population in Atlanta relying on the March 28, 2014). The rule, promulgated in

El Paso, and, inally, forms the international •••rivers for drinking water, and the region was 2008, added an exclusion to the National Pol-
boundary between the United States and ••••••••••••••••••••••••••
hit hard by drought in recent years, particu- lutant Discharge Elimination System (NPDES)
Mexico. Under the compact, the Bureau of 1. The U.S. Drought Monitor can be found at http:// larly in 2007. As a result, urban, agricultural program for “discharges from a water trans-
Reclamation sets the shares of water under droughtmonitor.unl.edu.
2. 373 U.S. 546 (1963).
and ecological interests all seek water.
fer.” Under the regulation, pumping water
an operating agreement. An adjusted operat- 3. See, e.g., New Jersey v. New York, 283 U.S. 336 Alabama, Florida and Georgia collaborated from one part of a water body to another
ing agreement recently resulted in a reduced (1931).
over many years, entering in 1997 into an part of the water body does not require an
share of water to New Mexico, from a typical 4. A complete list of U.S. water-related compacts, with initial interstate compact “agreeing to agree.” NPDES permit under the Clean Water Act.
57 percent to 38 percent. Texas received a 62 links to each compact, is available at http://international That compact expired in 2003. Subsequently, The rule followed on a series of decisions
waterlaw.org/documents/interstate_us.html.
5. New Mexico had previously sued the Bureau of Rec-
percent share.5
lamation in federal district court. State of New Mexico v. they discussed a framework for a compact from the Second Circuit holding that New
Texas, experiencing severe drought, alleges U.S. Bureau of Reclamation, No. Civ. 11-691 JB/WDS (D. addressing allocation, and they participated York City was required to obtain an NPDES
that New Mexico is allowing impermissible N.M. iled Aug. 8. 2011).
in mediation. In 2007, the three states also permit for previously unpermitted transfers
diversions before the water reaches the New 6. Catskill Mountains Chapter of Trout Unlimited v. City joined in an effort to reach an agreement led of water in the Catskill Mountains.6
Mexico/Texas state line, pointing to 2,500 of New York, 273 F.3d 481, (2d Cir. 2001), adhered to on by the then Secretary of the Interior and the In a complex analysis, the district court
wells drilled and increased groundwater
recon., 451 F.3d 77 (2d Cir. 2006), cert. denied, 549 U.S. 1252 (2007).
Chair of the White House Council on Environ-
ruled against the EPA, concluding that the