Summer 2026 Legislation Tracking
Selection Criteria: (1) Significance to current policy positions; (2) Importance to Western states (direct member feedback/sponsorship); (3) Viability (broad support, high activity).
🔥: High Momentum—legislation with consistent activity or advanced status.
Search by keyword to filter the list. To see bills by WSWC committee, search for Legal, Water Quality, or Water Resources.
| Bill Number | 🔥 | Title | Summary | Western Support | Bill Progress | Bill Sponsor |
|---|---|---|---|---|---|---|
| H.R. 132 | Western Water Accelerated Revenue Repayment Act | This bill amends the WIIN Act to extend contract prepayment authority for water infrastructure projects. It modifies how certain project-specific payments are directed, routing funds to specific accounts other than the General Reclamation Fund, and extends prepayment authority to Section 4011 of the original Act. These technical amendments give western states and water districts more flexibility to manage and accelerate revenue repayment for water infrastructure projects. | Republican, CO | In Committee | Boebert, Lauren [Rep.-R-CO-4] | |
| H.R. 2093 | To amend the Federal Water Pollution Control Act with respect to permitting terms, and for other purposes. | This bill amends the Federal Water Pollution Control Act to modify the terms of National Pollutant Discharge Elimination System (NPDES) permits, which are regulatory licenses that control water pollution from point sources like industrial facilities. Specifically, the bill sets new maximum time limits for these permits: state and municipal permits can now be issued for up to 10 years, while permits for other entities (such as private companies) will be limited to 5 years. The bill also makes several technical corrections to the existing law, such as standardizing capitalization (changing "federal" to "Federal") and improving cross-references within the statute. These changes aim to provide clearer guidance on permit duration and ensure more consistent language in the water pollution control regulations. The modifications are relatively minor but could impact how long water discharge permits remain valid for different types of permit holders. | Bipartisan, CA | In Committee | Calvert, Ken [Rep.-R-CA-41] | |
| H.R. 2109 / S. 1018 | Cybersecurity for Rural Water Systems Act | This bill directs the Department of Agriculture (USDA) to establish a cybersecurity circuit rider program toprovide cybersecurity technical assistance for rural water and wastewater systems.The program must be structured similarly to the USDA Circuit Rider Program. Under this program, USDAprovides technical assistance to rural water systems that serve areas with populations of 10,000 or fewer people and are experiencing day-to-day operational, financial, or managerial issues.Specifically, the cybersecurity circuit rider program must provide technical assistance to rural water or wastewater systems toprovide rapid assessments of the system's current ability or inability to respond to cybersecuritythreats andprotect cyber infrastructure,develop reasonable protocols to enhancecybersecurity protection,provide assistance to address inadequate cyber protection plans, anddocument a system's current state of water supply cyber protection. | Bipartisan, CA, NV, SD | House - In Committee; Senate - In Committee | Davis, Donald G. [Rep.-D-NC-1]; Cortez Masto, Catherine [Sen.-D-NV] | |
| H.R. 2160 / S. 1183 | Maintaining and Enhancing Hydroelectricity and River Restoration Act | This bill establishes a new investment tax credit in the amount of 30% of the basis of any hydropower improvement property.The bill defines hydropower improvement property as property thatadds or improves fish passage at a qualified dam;maintains or improves the quality of the water retained or released by a qualified dam;promotes downstream sediment transport and habitat maintenance;upgrades, repairs, or reconstructs a qualified dam to meet safety and security standards;improves public uses of, and access to, public waterways impacted by a qualified dam;removes an obsolete river obstruction; orplaces into service an approved remote dam.Further, written approval for hydropower improvement property must be obtained from the Federal Energy Regulatory Commission or state or local officials prior to January 1, 2035.The bill also allows an election to claim the investment tax credit for qualified progress expenses for some types of hydropower improvement property in advance of such property being placed into service. Any investment tax credit amount claimed for qualified progress expenses reduces the amount of the investment tax credit that may be claimed once the hydropower improvement property is placed into service.The bill authorizes certain entities, including tax-exempt and governmental entities, to treat the investment tax credit for hydropower improvement property as a payment of tax and receive a refund of any overpayment (also known as elective pay).Finally, the investment tax credit for hydropower improvement property may be transferred (i.e., sold). | Bipartisan, KS, NE, OR, WA | House - In Committee; Senate - In Committee | Smith, Adrian [Rep.-R-NE-3]; Cantwell, Maria [Sen.-D-WA] | |
| H.R. 2250 / S. 1626 | 🔥 | National Landslide Preparedness Act Reauthorization Act of 2025 | This bill reauthorizes through FY2030 and expands the National Landslide Hazards Reduction Program (NLHRP) of the U.S. Geological Survey (USGS)and reauthorizes and expands other related programs.The bill reauthorizes theNLHRP’s activities including analyzing, preparing for, and responding to landslide hazards. It specifies a minimum amount ofNLHRP funds that must be used for deploying landslide early warning systems in high-risk areas. It also specifies that tribal organizations and Native Hawaiian organizations may receive the benefits of theNLHRP.Also, the bill expands the NLHRP by requiring the USGS to incorporate atmospheric rivers and extreme precipitation events into the program’s national strategy, resources for communities on landslide preparedness, and emergency response activities. It requires a landslide hazards database to include information regarding identification of areas in need of additional landslide risk assessment and authorizes regional partnerships to coordinate landslide monitoring efforts. It also authorizes theUSGS to consult with institutions of higher education when establishing priorities for grants and implementing the debris flow early warning system.Additionally, the bill reauthorizes the USGS’s 3D Elevation Program through FY2030 and requires relevant federal agencies to integrate enhanced elevation data. It also requires the National Oceanic and Atmospheric Administration’s precipitation frequency estimates to include precipitation from hurricanes, atmospheric rivers, and extreme precipitation events. | Bipartisan, WA | House - In Committee; Senate - Crossed Over | DelBene, Suzan K. [Rep.-D-WA-1]; Murkowski, Lisa [Sen.-R-AK] |
| H.R. 231 / S. 154 | Colorado River Basin System Conservation Extension Act of 2025 | This bill extends the Colorado River System Conservation Pilot Program by amending the Energy and Water Development and Related Agencies Appropriations Act. It updates the program's authorization references from 2024 to 2026 and moves the termination date from 2025 to 2027, through technical amendments to existing language. This gives the program additional time to continue conserving water resources in the Colorado River Basin, a critical water source for the southwestern United States. | Bipartisan, CO, UT, WY | House - Reported; Senate - Crossed Over | Hageman, Harriet M. [Rep.-R-WY-At Large]; Hickenlooper, John W. [Sen.-D-CO] | |
| H.R. 2758 / S. 1389 | Conservation Reserve Enhancement Program Improvement Act of 2025 | This bill revises the Conservation Reserve Enhancement Program (CREP), which is a component of the Farm Service Agency's (FSA's) Conservation Reserve Program (CRP). CREP is a public-private partnership program which allows states, tribal governments, and nonprofit and private entities to partner with FSA to implement CRP practices. CRP is a land conservation program that provides an annual rental payment to farmers in exchange for removing environmentally sensitive land from agricultural production and planting species that will improve environmental health and quality.The bill specifies that dryland agricultural uses and grazing are included as appropriate practices under CREP. The bill also allows a land owner or operator to elect to determine the annual payment amount allocated for each year of a CREP agreement, instead of a fixed payment per year for the contract period.For drought and water conservation agreements that include the permanent retirement of water rights, annual payment rates must be equal to the irrigated acre payment rates determined by the Department of Agriculture (USDA). In the case of an agreement that permits dryland agricultural uses, the annual payment rates must be equal to the difference between the irrigated acre payment rates and the dryland acre payment rates determined by USDA. The payment formula is retroactive for certainexisting drought and water conservation agreements. Further, the bill exempts CREP payments from the $50,000 annual payment limitation under CRP. | Bipartisan, CO, KS | House - In Committee; Senate - In Committee | Boebert, Lauren [Rep.-R-CO-4]; Marshall, Roger [Sen.-R-KS] | |
| H.R. 2770 / S. 1378 | TAME Extreme Weather and Wildfires Act | This bill aims to enhance the National Oceanic and Atmospheric Administration's (NOAA) use of artificial intelligence (AI) for weather forecasting by establishing a comprehensive framework for developing, testing, and implementing AI-powered weather models. The legislation directs NOAA to develop comprehensive weather forecasting training datasets in collaboration with various federal agencies and technical experts, and to explore the creation of global, regional, and local AI weather models that can improve the accuracy and timeliness of weather, water, and space weather forecasts. The bill mandates the exploration of advanced AI applications for weather forecasting, including improving data assimilation, modeling coupled Earth system processes, enhancing wildfire risk mitigation, and generating more accurate ensemble forecasts. Additionally, the bill requires NOAA to provide technical assistance to forecasters and emergency managers, develop best practices for using AI weather models, and create public-private partnerships to accelerate innovation in environmental forecasting. The legislation also emphasizes the importance of protecting national security interests and ensures that AI models and associated data will be made publicly available, subject to appropriate safeguards. To support these efforts, the bill authorizes appropriations of $105 million for fiscal year 2026 and $25 million annually for fiscal years 2027 through 2030. | Bipartisan, MT, NM | House - In Committee; Senate - Reported | Franklin, Scott [Rep.-R-FL-18]; Schatz, Brian [Sen.-D-HI] | |
| H.R. 302 | Water Rights Protection Act | This bill limits the transfer of water rights from water users to the Department of the Interior or the Department of Agriculture (USDA).First, the bill prohibits Interior and USDA from conditioning the issuance or renewal of land use or occupancy agreements (e.g., permits and leases) on the transfer of any water right to the United States. Next, it prohibits Interior and USDA from requiring water users, including Indian tribes,to acquire water rights in the name of the United States as a condition of the issuance or renewal of a land use or occupancy agreement. Finally, it prohibits Interior and USDA fromconditioning or withholding the issuance or renewal of land use or occupancy agreements on (1) limiting the date, time, quantity, location of diversion or pumping, or place of use of astate water right beyond any applicable limitations understate water law; or (2) modifying the terms and conditions of groundwater withdrawal, guidance and reporting procedures, or conservation and source protection measures established by a state.Interior and USDA must also ensure that federal action imposes no greater restriction or regulatory requirement than under applicable state water law.Further, Interior and USDA must not take actions that adversely affect state authority in permitting water usage or in adjudicating water rights. | Republican, AZ, ID, KS, UT | In Committee | Maloy, Celeste [Rep.-R-UT-2] | |
| H.R. 331 / S. 1254 | To amend the Aquifer Recharge Flexibility Act to clarify a provision relating to conveyances for aquifer recharge purposes.; A bill to amend the Aquifer Recharge Flexibility Act to clarify a provision relating to conveyances for aquifer recharge purposes. | This bill modifies the Aquifer Recharge Flexibility Act to expand provisions concerning authorizations (e.g., rights-of-way) to transport water across public land administered by the Bureau of Land Management (BLM) for aquifer recharge purposes.Under the Aquifer Recharge Flexibility Act, the holder of existing rights-of-way, easements, permits, or other authorizations to transport water across BLM land may transport the water for aquifer recharge purposes without additional authorization from the Department of the Interior so long as the use does not expand or modify the operation of such authorizations across public land.The bill allows the holders of such authorizations to act not only on behalf of themselves, but also on behalf of states, Indian Tribes, or public entities, to use the existing authorizations for aquifer recharge without additional authorization from the Department of the Interior. Further, the bill states that this use may not be considered an expansion, modification, major federal action, or substantial deviation.Additionally, the bill exempts holders from paying additional rents to the BLM for any use of such authorizations; however, the exemption does not apply to for-profit uses of aquifer recharge or for-profit entities.Finally, holders of rights-of-way or other authorizations must provide notice to theBLM of the intended use of authorization as specified by the bill. | Republican, ID | House - Crossed Over; Senate - In Committee | Fulcher, Russ [Rep.-R-ID-1]; Risch, James E. [Sen.-R-ID] | |
| H.R. 337 | To provide technical and financial assistance for groundwater recharge, aquifer storage, and water source substitution projects. | This bill amends Section 40910 of the Infrastructure Investment and Jobs Act (IIJA) to provide technical and financial assistance for groundwater recharge, aquifer storage, and water source substitution projects. It authorizes transferring $3M annually (FY2026-2031) from unobligated Section 40901 funds to the Secretary for groundwater management and conservation activities. | Bipartisan, CA | In Committee | Costa, Jim [Rep.-D-CA-21] | |
| H.R. 3376 / S. 1730 | Water Affordability, Transparency, Equity, and Reliability Act of 2025 | This bill provides over $34 billion in FY2025 funding across the EPA, USDA, and Indian Health Service to improve U.S. water infrastructure and services, including clean water grants, safe drinking water assistance, rural water services, and tribal infrastructure improvements. It mandates an EPA study on water affordability, discrimination, and civil rights, examining rates, service disconnections, and disparate impacts on vulnerable populations. The bill adds new State Revolving Fund requirements, including provisions for purchasing privately owned water systems, increased low-income subsidies, and project labor agreements. It also addresses drinking water in schools, tribal water systems, and assistance for border communities and colonias. | Democrat, AZ, CA, NM, NV, OR, TX, WA | House - In Committee; Senate - In Committee | Watson Coleman, Bonnie [Rep.-D-NJ-12]; Sanders, Bernard [Sen.-I-VT] | |
| H.R. 3713 / S. 2741 | Legacy Mine Cleanup Act of 2025 | This bill establishes the Office of Mountains, Deserts, and Plains within the EPA to coordinate environmental cleanup at abandoned hardrock mine sites. The office will coordinate cleanup efforts across federal agencies, regional offices, Tribal governments, and other stakeholders, prioritizing sites without an identifiable responsible party. It will create an annual mine site priority list, develop best practices for site assessment and remediation, and establish an interagency plan for uranium contamination on Navajo Nation lands. The bill encourages innovative cleanup technologies, including resource recovery and site reuse, and creates no new regulatory authority. The office will provide technical assistance to states, localities, and Tribal entities, and report annually to Congress on prioritization methodology and cleanup status. | Bipartisan, AZ, WY | House - In Committee; Senate - Crossed Over | Crane, Elijah [Rep.-R-AZ-2]; Kelly, Mark [Sen.-D-AZ] | |
| H.R. 3857 / S. 2437 | 🔥 | Snow Water Supply Forecasting Reauthorization Act of 2025; Snow Water Supply Forecasting Program Reauthorization Act of 2025 | This bill reauthorizes and modifies the Bureau of Reclamation's Snow Water Supply Forecasting Program through FY2031. Reclamation must incorporate integrated snowpack measurement and modeling technologies, to the greatest extent practicable, when determining water supply forecasts or allocations to federal water contractors. The program's framework must emphasize deploying these integrated technologies. Program activities must prioritize: (1) improving forecast accuracy and responsiveness to changing conditions, (2) real-time integration of measurements and modeling with forecasts, (3) river basins where data can inform water management decisions, and (4) building partner capacity to implement new capabilities. | Bipartisan, CO, UT | House - Reported; Senate - Reported | Hurd, Jeff [Rep.-R-CO-3]; Hickenlooper, John W. [Sen.-D-CO] |
| H.R. 3862 | Clean Water SRF Parity Act of 2025 | This bill amends the Federal Water Pollution Control Act to expand State Revolving Fund (SRF) financial assistance options for water pollution control projects. It enables qualified nonprofit entities to access SRF funding for a broader range of activities related to constructing, acquiring, or improving treatment works. It also establishes special rules allowing privately owned treatment works to receive financial assistance for improvements, construction, water conservation, energy efficiency, and security upgrades. The bill prohibits additional subsidization for nonprofit entities and ensures assistance for privately owned treatment works primarily benefits the people served, not shareholders or owners. | Bipartisan, CA | In Committee | Bost, Mike [Rep.-R-IL-12] | |
| H.R. 3897 | Confidence in Clean Water Permits Act | This bill modifies the Federal Water Pollution Control Act to clarify and expand how water pollution permits are interpreted. Compliant permit holders are considered compliant not just with the specific pollutants listed in the permit, but also with pollutants that are: (1) identified as controlled through indicator parameters in the permit or its documentation, (2) specifically identified during the permit application process, or (3) present in waste streams or operational processes that were identified during the permit application. Water quality-based limitations added to a permit must specify the pollutant and describe compliance methods, either through a numerical limit or narrative description. | Republican | In Committee | Taylor, David J. [Rep.-R-OH-2] | |
| H.R. 3898 | PERMIT Act | The bill reforms the Federal Water Pollution Control Act to streamline water quality permitting. It extends permit terms from five to ten years, narrows the definition of navigable waters, and establishes clearer water quality certification guidelines. The bill creates more flexible compensatory mitigation frameworks, expedites permit reviews, and sets new jurisdictional determination procedures. It supports state-led permitting, protects agricultural stormwater discharges, and streamlines environmental review. Additionally, it addresses water recharge projects on federal lands, clarifies judicial review timelines, and limits federal agencies' ability to withdraw state permit program approvals. | Republican, CA, CO, UT | Crossed Over | Collins, Mike [Rep.-R-GA-10] | |
| H.R. 4302 / S. 322 | Improving Atmospheric River Forecasts Act | This bill requires NOAA to establish an atmospheric river forecast improvement program to reduce loss of life, property, and economic losses through improved research, forecasting, and warnings. The program must develop quantitative forecast skill metrics, an atmospheric river forecast system within a unified forecast system, and tools to predict active and inactive landfall periods. NOAA must periodically test new observation sources (radar, aircraft, ocean buoys) to improve modeling, develop best practices for communicating atmospheric river risks, and may work to improve precipitation modeling for complex terrain. The bill also requires NOAA to maintain adequate crewed and uncrewed aircraft, equipment, and personnel for annual air reconnaissance during atmospheric river season (November-March). | Bipartisan, CA | House - In Committee; Senate - In Committee | Obernolte, Jay [Rep.-R-CA-23]; Padilla, Alex [Sen.-D-CA] | |
| H.R. 4879 / S. 3620 | Emergency Rural Water Response Act of 2025 | The bill modifies the Consolidated Farm and Rural Development Act to broaden emergency community water assistance grants to cover potable water, wastewater, storm drainage, and solid waste infrastructure. It also raises the population threshold for grant eligibility from 10,000 to 35,000 residents. Additionally, it amends the Federal Water Pollution Control Act to exempt portable water treatment and filtration facilities from federal or state discharge permits for six months following a state-declared disaster, speeding up emergency water response. | Bipartisan, CA | House - In Committee; Senate - In Committee | Costa, Jim [Rep.-D-CA-21]; Schiff, Adam B. [Sen.-D-CA] | |
| H.R. 4970 | Orland Project Water Management Act | This bill amends the Reclamation States Emergency Drought Relief Act of 1991 to allow more flexible water transfers between the Orland Project and the Central Valley Project (CVP). The Secretary of the Interior may transfer Orland Project water to the CVP's Sacramento Canal Unit at any time, regardless of water year type, if consistent with the CVP's purposes. The bill does not create new Reclamation Reform Act benefits, does not affect existing or pending water rights, and prohibits redirected impacts to the Orland Project. It gives federal water managers greater discretion to allocate water between these California projects during drought conditions. | Republican, CA | In Committee (Hearings Held) | LaMalfa, Doug [Rep.-R-CA-1] | |
| H.R. 5089 | Weather Act Reauthorization Act of 2025 | Reauthorizes NOAA's Office of Oceanic and Atmospheric Research programs through FY2030 (including the U.S. Weather Research Program) and provides statutory authority for VORTEX-USA.The bill also requires NOAA to establish programs that support weather forecasting technology, including improvements to radar accuracy, weather forecasting in underserved areas, and coastal flooding forecasting. NOAA must also acquire/test private-sector weather data compatibility. The bill also directs NOAA to modernize weather communication systems (cloud-based, expanded rural coverage) and establish agricultural/water management forecasting programs, including pilot programs to improve precipitation forecasts in the western and central states and a soil moisture monitoring network. Differing from the House's Weather Act Reauthorization Act (H.R. 5089), this Senate version serves as a broader, 17-bill bipartisan package, establishing highly specialized, regional initiatives, including a dedicated atmospheric river forecast improvement program, localized landslide preparedness protocols, and codify the National Mesonet Program. | Bipartisan, CA, OK, OR, TX | Reported | Lucas, Frank D. [Rep.-R-OK-3] | |
| H.R. 5566 / S. 3590 | Water Infrastructure Resilience and Sustainability Act | This bill aims to extend the authorization periods for several key water infrastructure programs by five years, effectively updating multiple sections of federal environmental law. Specifically, the bill extends the Clean Water Infrastructure Resiliency and Sustainability Program under the Federal Water Pollution Control Act from 2026 to 2031, and modifies two programs under the Safe Drinking Water Act - the Drinking Water System Infrastructure Resilience and Sustainability Program and the Midsize and Large Drinking Water System Infrastructure Resilience and Sustainability Program - by similarly extending their authorization to 2031. These programs are designed to help water utilities and communities improve the resilience and sustainability of their water infrastructure, helping them better prepare for challenges like climate change, aging infrastructure, and environmental shifts. By extending these program authorizations, the bill ensures continued federal support for critical water infrastructure improvements across the United States. | Bipartisan, CA, CO, UT | House - In Committee; Senate - In Committee | Carbajal, Salud O. [Rep.-D-CA-24]; Blunt Rochester, Lisa [Sen.-D-DE] | |
| H.R. 605 / S. 2701 | Headwaters Protection Act of 2025 | This bill reauthorizes through FY2033 and expands the Water Source Protection Program (WSPP) under which the Forest Service carries out watershed protection and restoration projects on federal land. It also requires the Forest Service's Watershed Condition Framework for National Forest System land to ensure certain activities and authorizations do not result in long-term degradation of the health of a watershed.The bill authorizes the WSPP to support projects on state, local, or private land that is adjacent to projects on National Forest System land, so long as (1) the adjacent land is within the same watershed as the project on federal land, and (2) the owner of the adjacent land supports the project.Further, the bill expands the types ofend water users that may participate in the program to include (1) anacequia association (an organization that manages traditional irrigation systems found in the Southwest); (2) a public entity that manages water infrastructure, such as stormwater or wastewater resources; (3) certain land grant entities in New Mexico called land-grantmercedes; and (4) a local, regional, or other private entity that has water delivery authority.The bill requires projects under the program to (1) protect and restore watershed health, water supply and quality, a municipal or agricultural water supply system, and water-related infrastructure; (2) protect and restore forest health from insect infestation and disease or wildfire; or (3) advance any combination of those purposes.Additionally, the bill reduces the cost share for nonfederal WSPP participants. | Bipartisan, CA, CO, ID, NM, WA | House - In Committee; Senate - In Committee | Costa, Jim [Rep.-D-CA-21]; Bennet, Michael F. [Sen.-D-CO] | |
| H.R. 6229 | Water Infrastructure Finance and Innovation Act Amendments of 2025 | This bill amends the Water Infrastructure Finance and Innovation Act of 2014 to expand and clarify several provisions related to water infrastructure financing. The bill defines "rural water project" to include a broader range of water supply projects, establishes a definition for "small community" as a place with 25,000 or fewer inhabitants, and reduces the minimum project cost for eligibility from $5 million to $1 million. It provides technical assistance to small communities to help them develop project proposals, creates an outreach plan to promote financial assistance to small communities, and expands project eligibility to include state-led storage projects, transferred works, and congressionally authorized water resources development projects. The bill also introduces collaborative project delivery methods like design-build and construction management at-risk approaches, and allows for longer loan maturity dates (up to 55 years) for projects with extended useful lives. Additionally, the bill reauthorizes funding for water infrastructure programs, with $68 million allocated to the Environmental Protection Agency and $15 million to the Army Corps of Engineers annually from 2025 to 2029. The legislation requires reports to Congress on program implementation and mandates a Government Accountability Office study on project delivery methods. | Bipartisan, CA, KS, WA | In Committee | Schrier, Kim [Rep.-D-WA-8] | |
| H.R. 6641 | Central Valley Water Solution Act | This bill authorizes the Secretary of the Interior to provide financial and technical support for water infrastructure projects improving water management within the Central Valley Project (CVP). Projects include groundwater recharge basins and treatment plants, groundwater banking and storage programs, expanded recycled water initiatives, and new drought-resistant reservoirs. Substantial funding addresses infrastructure repairs, including subsidence corrections to the Delta-Mendota Canal and San Luis Canal/California Aqueduct, and restored capacity for the Friant-Kern Canal. The bill mandates coordination with Indian Tribes and state and local agencies, and makes most project funding non-reimbursable and exempt from cost-sharing, except for a water conservation study. The Secretary must ensure compliance with applicable environmental laws, including NEPA and fish, wildlife, and water quality protections. | Democrat, CA | In Committee | Gray, Adam [Rep.-D-CA-13] | |
| H.R. 7273 | NASA Reauthorization Act of 2026 | The House bill, officially the NASA Reauthorization Act of 2026, sets NASA's policy directives and aligns with the enacted $24.4B FY 2026 appropriation. Within this framework, the bill codifies a $7.3B allocation for the Science Mission Directorate, matching the final appropriated amount. While both bills legally protect a "balanced science portfolio" that includes core Earth science satellites like Landsat, and the Global Precipitation Measurement (GPM) mission used for flood forecasting, the House bill uniquely pushes for the privatization of Earth observation. It explicitly directs NASA to expand its use of commercial satellite data to fill observational gaps rather than building expensive government replacements. Additionally, the House bill introduces specific water and environmental initiatives not found in the Senate version, such as partnering with other agencies to provide water, soil, and vegetation data directly to American agricultural producers, and establishing the FireSense project for wildland fire mitigation. To protect future water-monitoring capabilities against potential budget threats the House bill grants NASA "block buy" authority to purchase hardware in bulk for the upcoming Earth System Observatory. | Bipartisan, CA, TX | Reported | Babin, Brian [Rep.-R-TX-36] | |
| H.R. 7408 / S. 3792 | 🔥 | Water Project Navigators Act | This bill establishes an Interior Department program supporting "multi-benefit water projects" — initiatives that improve water supply resilience to climate impacts (efficiency, recycling, infrastructure, safe drinking water access) while also benefiting ecosystems through habitat conservation and watershed health. The program awards grants or cooperative agreements to eligible entities (states, Indian Tribes, local governments, water suppliers, conservation districts, and nonprofits) to fund "navigator" positions assisting with project planning, grant writing, and technical assistance. It prioritizes applications from entities serving Indian Tribes, disadvantaged communities (below statewide median income), and rural communities, allowing reduced or waived cost-sharing for those demonstrating financial hardship. Authorized at $15 million annually (FY2027-2032). | Bipartisan, AZ, CO, KS | House - In Committee; Senate - Reported | Pettersen, Brittany [Rep.-D-CO-7]; Hickenlooper, John W. [Sen.-D-CO] |
| H.R. 7487 | 🔥 | Rural Jobs and Hydropower Expansion Act | This bill aims to encourage more non-federal entities to develop hydropower projects at facilities managed by the Bureau of Reclamation, which is a federal agency responsible for water management and infrastructure in the western United States. Specifically, it amends the Reclamation Project Act of 1939 to broaden the types of Bureau of Reclamation facilities eligible for hydropower development, moving beyond just "small conduit hydropower" and "pumped storage hydropower" to encompass "hydropower using all Bureau of Reclamation facilities." The bill also clarifies terms like "reserved works facility," referring to facilities where the Bureau of Reclamation retains operation and maintenance responsibilities, and "transferred works facility," where a non-federal entity handles these tasks under a contract. It also modifies provisions related to power privilege offers and the duration and renewal of authorizations from the Federal Energy Regulatory Commission (FERC), an independent agency that regulates energy. The intent is to streamline the process and expand opportunities for private companies to build and operate hydropower facilities on Bureau of Reclamation infrastructure, potentially creating jobs and increasing renewable energy generation. | Bipartisan, CA, CO | Reported | Boebert, Lauren [Rep.-R-CO-4] |
| H.R. 7530 / S. 783 | Assistance for Rural Water Systems Act of 2026 | This bill amends the Consolidated Farm and Rural Development Act to provide additional financial assistance to rural water, wastewater, and waste disposal systems. The Secretary of Agriculture may offer grants, zero percent loans, or 1 percent loans to eligible rural water facilities, and may forgive, modify, or refinance existing loans. Assistance addresses two purposes: ensuring public health, safety, and order, or relieving financial hardship in disadvantaged or economically distressed areas. To determine eligibility, the Secretary must establish a residential affordability indicator comparing household water costs to median household income, and develop factors identifying economically disadvantaged regions. | Bipartisan | House - In Committee; Senate - In Committee | Davis, Donald G. [Rep.-D-NC-1]; Shaheen, Jeanne [Sen.-D-NH] | |
| H.R. 7567 | Farm, Food, and National Security Act of 2026 | This bill reforms and continues USDA programs through FY2031. It suspends permanent commodity price support authority until 2031, reauthorizes and modifies the Tree Assistance Program for orchardists and nursery growers, and establishes an emergency assistance framework for specialty crop producers hit by adverse events. It revises conservation programs, including CRP and EQIP, with a focus on soil health and precision agriculture. Trade provisions streamline food aid, transfer authorities to the Secretary of Agriculture, and promote exports. It extends farm ownership and operating credit programs, supports rural broadband and health initiatives, and revises agricultural research, extension, and education grants, including support for 1890 land-grant colleges. Forestry provisions improve forest management, wildfire mitigation, and community wood facility support, while energy provisions focus on bioenergy and renewables. The bill also covers crop insurance, livestock and animal health, meat and poultry processing, and agricultural foreign investment national security. Finally, it supports rural water and wastewater systems and expands research and education programs benefiting tribal institutions, Hispanic-serving institutions, and veterans, while addressing food loss, waste reduction, and healthy food financing. | Republican | Crossed Over | Thompson, Glenn [Rep.-R-PA-15] | |
| H.R. 7978 / S. 4041 | 🔥 | Cooperative Watershed Management Program Reauthorization Act of 2026 | This bill extends and enhances the Cooperative Watershed Management Program. It adds a tribal definition, allows consideration of ancestral tribal lands in grant awards, and expands eligibility to applicants facing drought or wildfire. It raises Phase I grants from $100,000 to $150,000, permits up to two continuation years, and requires regular, multiple annual funding opportunities. Authorizes $40M annually (FY2027-2031). | Bipartisan, AZ, CA, CO, MT | House - In Committee; Senate - In Committee (Hearings Held) | Ciscomani, Juan [Rep.-R-AZ-6]; Daines, Steve [Sen.-R-MT] |
| S. 1019 | Rural Water System Disaster Preparedness and Assistance Act | This bill establishes an emergency preparedness and response technical assistance program for rural water and wastewater systems. Grants fund qualified nonprofits with licensed or specialized personnel to deploy disaster response, develop action plans, assess vulnerabilities, and perform emergency repairs. Equipment purchases are capped at 25% of the grant, and funds cannot duplicate other federal support. Authorized at $20M annually (FY2025-2029). | Bipartisan, NV | In Committee | Cortez Masto, Catherine [Sen.-D-NV] | |
| S. 2281 | Rural Recovery Act of 2025 | This bill establishes a Rural Development Disaster Recovery Technical Assistance Program at USDA for rural communities under 20,000 residents. Eligible communities receive up to three years (extendable by three) of assistance navigating recovery, including funding identification, application support, and infrastructure planning. USDA allocates $50M annually, automatically distributed by disaster impact formula without a separate application. | Democrat | In Committee | Welch, Peter [Sen.-D-VT] | |
| S. 324 | Smarter Weather Forecasting for Water Management, Farming, and Ranching Act of 2025 | This bill directs NOAA to establish two pilot projects improving subseasonal-to-seasonal precipitation forecasting (2 weeks to 2 years out): one for western U.S. water management, focused on mountainous-region modeling and atmospheric river forecasting, and one for national agriculture, focused on warm-season precipitation and spring/summer weather pattern prediction. Both projects must engage academic institutions and NOAA entities and meet measurable forecast improvement objectives. NOAA's authority for these projects expires five years after enactment. | Democrat, CA, NM, NV | In Committee | Rosen, Jacky [Sen.-D-NV] | |
| S. 3912 | NIDIS Reauthorization Act of 2026 | This bill updates and extends the National Integrated Drought Information System (NIDIS) Act of 2006. It enhances NIDIS by adding flash drought research and tools, improving subseasonal-to-seasonal precipitation and temperature predictions, and continuing research into drought prediction, severity, and impacts. It mandates AI/ML deployment for drought monitoring, use of existing observational networks, refined drought indicators, improved decision support products, and investigation of data gaps like snowpack and soil moisture. The bill emphasizes NOAA collaboration and partnerships, including with the National Mesonet Program, for coordinated data collection, and requires a plan to integrate NOAA drought products and forecasting models into probabilistic forecasts. It authorizes NIDIS funding from FY2026-2030, starting at $15 million annually and increasing. | Republican, MT | In Committee | Sheehy, Tim [Sen.-R-MT] | |
| S. 3923 | 🔥 | Weather Research and Forecasting Innovation Reauthorization Act of 2026 | This bill would reauthorize NOAA’s weather research, forecasting, and communication programs through 2030. It modernizes capabilities, increases commercial data and AI use, improves public safety alerts, and fills underserved observation gaps. Specifically, it extends funding for hurricane forecasting and harmful algal bloom monitoring ($27.5M annually) while investing in AI and machine learning. It directs NOAA to address radar interference, replace NEXRAD by 2040, improve atmospheric river and coastal flood forecasting, migrate workstations to the cloud, expand aviation capabilities, assess NWS workforce needs, and fill rural observation gaps. To leverage the private sector, it expands commercial data purchases, sets clear data standards, creates an ombudsman, and shares data with the weather community when permitted. Finally, it simplifies warning dissemination, modernizes NOAA Weather Radio, requires post-storm surveys, directs a GAO alert system review, adds digital watermarking to prevent tampering, and creates several new programs to advance drought, soil moisture, and agricultural precipitation forecasting. | Bipartisan, KS, MT, NV, TX, WA | Reported | Cruz, Ted [Sen.-R-TX] |
| S. 4234 | Healthy Watersheds, Healthy Communities Act of 2026 | The bill updates the Watershed Protection and Flood Prevention Act to: (1) raise the federal contribution cap from $25M to $50M, and double the loan cap from $5M to $10M; (2) shift approval authority from the national offices to local NRCS State Conservationists; (3) allow consolidated regional plans for smaller sub-watershed areas; (4) remove the 250,000-acre watershed size limit; and (5) permits use of other federal grants for cost-share. | Bipartisan, CO, NE, OR | In Committee | Bennet, Michael F. [Sen.-D-CO] | |
| S. 4862 | A bill to direct the Secretary of Agriculture to consider certain acreage not planted due to a lack of irrigation water to be eligible for prevented planting payments, and for other purposes. | Directs USDA's Farm Service Agency to make prevented planting payments available to farmland ineligible for planting due to insufficient irrigation water. Qualifying producers must have functional irrigation infrastructure, have irrigated the land with sufficient water and planted the same crop in at least one of the past four years, and the land must be unsuitable for dryland farming for that crop. Payments will be reduced over prolonged ineligibility (50% in years 5-8, 75% in years 9-10, 100% after.) The bill also requires the Secretary to update disaster-declaration regulations to recognize drought-driven irrigation water shortages, in consultation with local Farm Service Agency and State technical committees. | Democrat, CO | In Committee | Bennet, Michael F. [Sen.-D-CO] | |
| S. 613 | Improving Flood and Agricultural Forecasts Act of 2025 | Authorizes NOAA's National Mesonet Program at $304M (FY2025-2029), requiring the program obtain demonstrably cost-effective, quality-controlled weather observations to improve forecasting of atmospheric, drought, fire, and water events. At least 15% of annual funding must go to state, tribal, private, and academic entities building mesonet capacity, prioritizing remote and underserved areas; recipients must share data with the NMP. | Bipartisan, KS | Reported | Schatz, Brian [Sen.-D-HI] | |
| S. 933 | NASA Transition Authorization Act of 2025 | The Senate bill, the NASA Authorization Act of 2025 (formerly the NASA Transition Authorization Act) authorizes $24.7B for FY 2026 and $25.3B for FY 2027. It allocates a notably higher amount for the Science Mission Directorate than the House bill, authorizing $7.6B. The Senate bill mandates a balanced science portfolio, protecting many Earth Science missions such as GRACE-FO (which monitors groundwater health) and SMAP (which measures soil moisture) from arbitrary cancellation. While both bills support the Commercial Satellite Data Acquisition program, the Senate bill does not include the House's aggressive mandates for commercial data privatization, agricultural water data dissemination, or the cost-saving "block buy" procurement strategies for future Earth-observing satellites. | Bipartisan, KS, NM, TX, WA | Reported | Cruz, Ted [Sen.-R-TX] |
Western Water Perspectives
Summer 2026 Indian Water Rights Settlements Legislation Tracking
Since 1986, the Western States Water Council (WSWC) has consistently supported the negotiated settlement of Indian water rights claims, viewing it as one of the most important aspects of the United States’ trust obligation to Native Americans and a matter of vital importance to the country as a whole (see Position #504). Because these negotiated settlements require Congressional approval to take effect, the Council first partnered with the Native American Rights Fund (NARF) on this issue in 1981, and has since co-hosted a biennial Symposium on the Settlement of Indian Reserved Water Rights Claims, bringing together experts to exchange information and advice on Indian water rights settlements.
The Council also supports access to clean, safe drinking water for all federally recognized Indian Tribes as a basic human need, a public health imperative, and a core component of the federal trust responsibility — and holds that a final settlement or adjudication should not be a prerequisite for providing safe drinking water infrastructure (see Position #514).
Below is legislative tracking, updated quarterly, for Indian water rights settlement bills and bills supporting tribal access to clean water before the 119th Congress.
| Bill Link HTML | Bill Title | Summary | Western Support | Bill Progress | Bill Sponsor |
|---|---|---|---|---|---|
| H.R. 1322 / S. 562 | Rio San José and Rio Jemez Water Settlements Act of 2025 | Rio San José and Rio Jemez Water Settlements Act of 2025This bill recognizes and settles certain water rights claims in New Mexico of (1) the Pueblos of Acoma and Laguna, and (2) the Pueblos of Jemez and Zia. It also establishes and provides funding for settlement trust funds.Specifically, the bill authorizes, ratifies, and confirms a specified water rights settlement agreement entered into by the Pueblo of Acoma, the Pueblo of Laguna, the United States, New Mexico, and others, thus satisfying claims to water rights in the Rio San José Stream System in New Mexico.With respect to the water settlement for the Pueblos of Acoma and Laguna, the bill establishes and provides funding for the Pueblo of Acoma Settlement Trust Fund, the Pueblo of Laguna Settlement Trust Fund, and the Acomita Reservoir Works Trust Fund.Additionally, the bill authorizes, ratifies, and confirms a specified water rights settlement agreement entered into by the Pueblo of Jemez, the Pueblo of Zia, the United States, New Mexico, and others, thus satisfying claims to water rights in the Jemez River Stream System in New Mexico.With respect to the water settlement for the Pueblos of Jemez and Zia, the bill establishes and provides funding for the Pueblo of Jemez Settlement Trust Fund and the Pueblo of Zia Settlement Trust Fund.For both of these agreements, the bill (1) specifies the water rights of the pueblos; and (2) outlines waivers, releases, and retentions of claims by the pueblos and the United States. | Democrat, NM | House - In Committee; Senate - Reported | Leger Fernandez, Teresa [Rep.-D-NM-3]; Heinrich, Martin [Sen.-D-NM] |
| H.R. 1323 / S. 563 | Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2025 | This bill, the Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2025, aims to finalize water rights claims for the Ohkay Owingeh Pueblo in the Rio Chama Stream System in New Mexico, and to restore a "bosque," which is a gallery forest along a riverbank. It ratifies an agreement between Ohkay Owingeh, the State of New Mexico, and other parties, authorizing the Secretary of the Interior to execute it and take necessary actions. The bill establishes that the Pueblo's water rights will be held in trust by the United States and cannot be lost through non-use or abandonment, and outlines how these rights can be allocated or leased, including for use off Pueblo land for up to 99 years with the Secretary's approval. A key provision is the establishment of a $745 million settlement trust fund, managed by the Secretary, to implement the agreement, which includes funds for bosque restoration, water infrastructure, and other related purposes. The bill also details the conditions that must be met for the settlement to become enforceable, including court approval of the agreement and the entry of a judgment, and requires Ohkay Owingeh and the United States to waive and release most past water-related claims against each other, while reserving certain rights, such as those related to water quality and future claims. The State of New Mexico is also required to contribute significant funding for various projects and mitigation efforts. | Democrat, NM | House - In Committee; Senate - Reported | Leger Fernandez, Teresa [Rep.-D-NM-3]; Heinrich, Martin [Sen.-D-NM] |
| H.R. 1324 / S. 565 | Navajo Nation Rio San José Stream System Water Rights Settlement Act of 2025 | This bill establishes a comprehensive water rights settlement for the Navajo Nation in the Rio San José Stream System in New Mexico, addressing long-standing water rights claims and providing significant financial and infrastructural support. The bill creates a $200,271,000 Navajo Nation Water Rights Settlement Account and a $23,000,000 Operations and Maintenance Account to be managed by the Secretary of the Interior, with funds to be used for water infrastructure development, environmental planning, well installation, and other water-related projects. The settlement includes detailed provisions for water rights usage, including allowing the Navajo Nation to allocate, distribute, and lease water rights on and off their lands, with certain restrictions. The bill also provides extensive waivers and releases of water-related claims against the United States, while retaining important environmental and future water rights protections. Notably, the settlement includes provisions protecting individual allottees' water rights and allows for potential expansion of the Navajo-Gallup Water Supply Project. The bill requires the Navajo Nation to submit annual expenditure reports, prohibits per capita distributions, and sets an expiration date of July 1, 2030, if certain conditions are not met. The settlement aims to provide a comprehensive and final resolution to water rights disputes in the region, offering the Navajo Nation significant resources for water infrastructure and management. | Democrat, NM | House - In Committee; Senate - Reported | Leger Fernandez, Teresa [Rep.-D-NM-3]; Heinrich, Martin [Sen.-D-NM] |
| H.R. 1444 / S. 564 | Zuni Indian Tribe Water Rights Settlement Act of 2025 | Zuni Indian Tribe Water Rights Settlement Act of 2025This bill recognizes and settles certain water rights claims in New Mexico of the pueblo of Zuni and establishes and provides funding for a related settlement trust fund. It also requires federal actions related to the Zuni Salt Lake in New Mexico.Specifically, the bill authorizes, ratifies, and confirms a specified water rights settlement agreement entered into by Zuni, New Mexico, and others, thus satisfying claims to water rights in the Zuni River Stream System in New Mexico.The bill establishes and provides funding for the Zuni Tribe Settlement Trust Fund (and specified accounts) for purposes of carrying out this bill.Additionally, the bill (1) specifies the water rights of the pueblo; and (2) outlines waivers, releases, and retentions of claims by the pueblo and the United States.The bill also withdraws certain federal land in New Mexico from mineral development. The bill reserves this federal land for the following three purposes: (1)the protection of the Zuni SaltLake and Sanctuary, (2) the protection of the quality and quantity of the Zuni Salt Lake's water supply, and (3) the protection of any cultural resources associated with the Zuni Salt Lake and Sanctuary. The Bureau of Land Management must manage this land.The Department of the Interior must take certain land surrounding the Zuni Salt Lake into trust for the benefit of Zuni. | Democrat, NM | House - In Committee; Senate - Reported | Vasquez, Gabe [Rep.-D-NM-2]; Heinrich, Martin [Sen.-D-NM] |
| H.R. 1482 / S. 637 | Navajo-Gallup Water Supply Project Amendments Act of 2025 | This bill amends the Northwestern New Mexico Rural Water Projects Act to make several key improvements to the Navajo-Gallup Water Supply Project. The bill increases the total project authorization from $870 million to $2.175 billion for fiscal years 2009-2029, and extends various deadlines for project completion. It establishes three new trust funds: a Navajo Nation Water Resources Development Trust Fund, a Navajo Nation Operations, Maintenance, and Replacement Trust Fund, and a Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund. The bill allows for deferred construction of project facilities, creates a mechanism for the Navajo Nation to save on construction and maintenance costs, and expands the project's service area to include additional communities in New Mexico, Arizona, and Utah. It also provides for the transfer of certain land parcels into trust for the Navajo Nation, clarifies taxation rules for project facilities, and allows for the potential development of renewable energy and hydroelectric power within the project. Additionally, the bill provides a framework for the Navajo Nation to provide non-Project water to communities in Utah, subject to specific conditions and limitations, and extends the deadlines for certain water rights settlement provisions. | Bipartisan, NM, UT | House - In Committee; Senate - Reported | Leger Fernandez, Teresa [Rep.-D-NM-3]; Luján, Ben Ray [Sen.-D-NM] |
| H.R. 2025 / S. 953 | Northeastern Arizona Indian Water Rights Settlement Act of 2025 | Northeastern Arizona Indian Water Rights Settlement Act of 2025This bill recognizes and settles certain water rights claims in Arizona of the Navajo Nation, the Hopi Tribe, and the San Juan Southern Paiute Tribe. It also provides funding for a water pipeline and three settlement trust funds.Specifically, the bill authorizes, ratifies, and confirms a specified water rights settlement agreement entered into by the tribes, the United States, Arizona, and others, thus satisfying claims to water rights in Arizona (including with respect to the Little Colorado River and the Colorado River).Additionally, the bill outlines the water rights of the tribes. For example, the bill allocates and assignsColorado River water from Arizona's share to the Navajo Nation and the Hopi Tribe.The bill establishes and provides funding for an implementation fund account for the Bureau of Reclamation to plan, design, and construct a pipeline to deliver waterto the tribes.Further, the bill establishes and provides funding for the Navajo Nation Water Settlement Trust Fund, the Hopi Tribe Water Settlement Trust Fund, and the San Juan Southern Paiute Tribe Water Settlement Trust Fund.The bill also establishes a reservation consisting ofapproximately 5,400 acres of land in Arizona and Utah for the San Juan Southern Paiute Tribe by ratifying and confirming the treaty entered into by the Navajo Nation and the San Juan Southern Paiute Tribe.The bill outlines waivers, releases, and retention of claims by the tribes and the United States under the settlement agreement. | Bipartisan, AZ | House - In Committee; Senate - In Committee (Hearings Held) | Ciscomani, Juan [Rep.-R-AZ-6]; Kelly, Mark [Sen.-D-AZ] |
| H.R. 4598 / S. 640 | Technical Corrections to the Northwestern New Mexico Rural Water Projects Act, Taos Pueblo Indian Water Rights Settlement Act, and Aamodt Litigation Settlement Act | This bill makes technical corrections to three water rights and development funds related to Native American communities in New Mexico. Specifically, the bill authorizes additional appropriations for the Navajo Nation Water Resources Development Trust Fund ($6,357,674.46), the Taos Pueblo Water Development Fund ($7,794,297.52), and the Aamodt Settlement Pueblos' Fund ($4,314,709.18). For the Aamodt Settlement Pueblos' Fund, the bill also includes a provision waiving any interest payments due to the United States that were earned on certain funds prior to September 15, 2017. The bill includes disclaimers ensuring that these new provisions do not invalidate previous Secretarial findings or the satisfaction of existing conditions in the original settlement acts. Additionally, the bill authorizes any future investment earnings or interest credited to these trust funds to be appropriated. These technical corrections aim to provide additional financial support and clarify existing water rights and development agreements for Native American pueblos and the Navajo Nation in Northwestern New Mexico. | Democrat, NM | House - In Committee; Senate - Crossed Over | Leger Fernandez, Teresa [Rep.-D-NM-3]; Luján, Ben Ray [Sen.-D-NM] |
| H.R. 5935 / S. 4368 | Agua Caliente Band of Cahuilla Indians Water Rights Settlement Act | This bill establishes a comprehensive water rights settlement for the Agua Caliente Band of Cahuilla Indians in California, addressing multiple complex legal and water management issues. The bill authorizes a settlement that confirms the tribe's water rights in the Indio Subbasin, quantifying their groundwater rights at 20,000 acre-feet per year with a priority date dating back to 1876-1877. It creates an Agua Caliente Settlement Trust Fund with $500 million distributed across four accounts to support water development projects, groundwater augmentation, water management, and infrastructure maintenance. The bill also transfers approximately 2,742 acres of federal land into trust for the tribe, allows the Coachella Valley Water District to purchase specific facility lands, and establishes a framework for the tribe to impose a possessory interest tax in lieu of county property taxes. Importantly, the legislation includes comprehensive waivers of water-related claims against the United States, water districts, and other entities, while preserving certain environmental and cultural resource protections. The bill aims to provide a fair, equitable, and final resolution to long-standing water rights disputes, offering benefits to the tribe, its members, and local water agencies while establishing clear guidelines for future water use and management. | Bipartisan, AK, CA | House - In Committee; Senate - In Committee | Calvert, Ken [Rep.-R-CA-41]; Padilla, Alex [Sen.-D-CA] |
| H.R. 6205 / S. 3242 | Taos Pueblo Indian Water Rights Settlement Amendments Act of 2025 | This bill amends the Taos Pueblo Indian Water Rights Settlement Act to facilitate the implementation of the Taos Pueblo Indian Water Rights Settlement Agreement by establishing three new trust funds: the Taos Pueblo Water Development Fund, the Taos Pueblo Groundwater Development Supplemental Trust Fund, and the Taos Pueblo Surface Water Sharing Supplemental Trust Fund. The bill provides mandatory appropriations totaling $367 million, with provisions for adjusting these amounts based on construction cost changes and market volatility. It also creates a new framework for funding mutual-benefit projects, including a Mitigation Well System designed to offset surface water depletion effects, and establishes detailed funding and construction timelines for eligible non-Pueblo entities. The bill includes provisions for alternative or interim offset infrastructure if original project timelines are not met and clarifies that these amendments do not require changes to the existing Settlement Agreement or Partial Final Decree. Additionally, the legislation defines new terms like "Mitigation Well System" and "Pueblo Trust Funds" and provides guidelines for the management, investment, and use of the newly established trust funds, with the goal of supporting water infrastructure development and water rights implementation for the Taos Pueblo. | Democrat, NM | House - In Committee; Senate - In Committee | Leger Fernandez, Teresa [Rep.-D-NM-3]; Luján, Ben Ray [Sen.-D-NM] |
| H.R. 6869 / S. 3573 | To amend the Aamodt Litigation Settlement Act to modify a provision relating to the extension of certain dates for the completion of the Regional Water System, and for other purposes.; A bill to amend the Aamodt Litigation Settlement Act to modify a provision relating to the extension of certain dates for the completion of the Regional Water System, and for other purposes. | This bill amends the Aamodt Litigation Settlement Act, which is a law designed to resolve a long-standing water rights dispute involving the Pueblos (Native American tribes), the United States, the State of New Mexico, the City of Albuquerque, and Sandoval County. Specifically, the bill modifies a provision related to the completion of the Regional Water System, a project crucial for implementing the settlement. The key change is that the deadlines for completing certain aspects of the Regional Water System, as outlined in subsection (e) of the Act, can now be extended if all the parties involved—the Pueblos, the United States (represented by the Secretary), the State, the City, and the County—agree that such an extension is reasonably necessary. This amendment aims to provide flexibility in meeting the project's timelines by requiring mutual consent for any extensions. | Democrat, NM | House - In Committee; Senate - In Committee | Leger Fernandez, Teresa [Rep.-D-NM-3]; Luján, Ben Ray [Sen.-D-NM] |
| H.R. 6931 / S. 3617 | Yavapai-Apache Nation Water Rights Settlement Act of 2025 | This bill, the Yavapai-Apache Nation Water Rights Settlement Act of 2025, aims to finalize water rights claims for the Yavapai-Apache Nation in Arizona and authorize the construction of a water project. It ratifies and confirms the Yavapai-Apache Nation Water Rights Settlement Agreement, which resolves all claims to water rights in the state for the Nation and the United States acting as trustee. The bill also authorizes the Secretary of the Interior to execute this agreement and directs the appropriation of necessary funds. A key component is the authorization and construction of the Tú ´l níchoh Water Infrastructure Project, which includes the Cragin-Verde Pipeline Project to deliver water from the C.C. Cragin Dam and Reservoir and the Yavapai-Apache Nation Drinking Water System Project to treat and distribute that water. The bill establishes funds for these projects and a trust fund for the Yavapai-Apache Nation's water settlement. It also outlines waivers and releases of water rights claims by the Nation and the United States, while retaining certain rights, and clarifies the effect of the settlement on members of the Nation and the Dinah Hood Allotment. Furthermore, it addresses the Yavapai-Apache Nation's entitlement to Central Arizona Project (CAP) water and sets conditions for the agreement's enforceability, including the completion of funding, execution of agreements, and necessary approvals from water authorities and courts. The bill also includes provisions for the administration of the settlement, including a limited waiver of sovereign immunity for the Yavapai-Apache Nation and the United States in specific legal actions related to the agreement. | Bipartisan, AZ | House - In Committee; Senate - In Committee | Crane, Elijah [Rep.-R-AZ-2]; Kelly, Mark [Sen.-D-AZ] |
| H.R. 726 / S. 240 | Crow Tribe Water Rights Settlement Amendments Act of 2025 | Crow Tribe Water Rights Settlement Amendments Act of 2025This bill revises the water rights settlement agreement entered into by the Crow Tribe of Montana and Montana.The Crow Tribe Water Rights Settlement Act of 2010 ratified, authorized, and confirmed the water rights compact between the tribe and Montana. Among other provisions, this settlement act authorized the Bureau of Reclamation to plan, design and construct the following two major projects on the Crow Reservation: (1) the rehabilitation and improvement of the Crow Irrigation Project (CIP); and (2) the planning, design, and construction of the MR&I System (the municipal, rural, and industrial water system of the Crow Reservation).Among other provisions, the bill revises the settlement act toreplace references to the MR&I System with MR&I Projects;establish a nontrust, interest-bearing account(to be known as the CrowCIP Implementation Account) to allow Reclamation to continue to work on the rehabilitation of the CIP;create a new MR&I Projects Account, through which the tribe must use funds for activities related to water production, treatment, or delivery infrastructure; andextend by five years (to 2030) the period during which the tribe has the exclusive right to construct hydropower facilities on the YellowtailAfterbay Dam in Montana. | Republican, MT | House - In Committee; Senate - Crossed Over | Downing, Troy [Rep.-R-MT-2]; Daines, Steve [Sen.-R-MT] |
| H.R. 907 / S. 241 | Northern Montana Water Security Act of 2025 | Northern Montana Water Security Act of 2025This bill modifies and ratifies a specified water rights settlement agreement entered into by the United States, Montana, and the Fort Belknap Indian Community of the Fort Belknap Reservation of Montana (i.e., the Gros Ventre and Assiniboine Tribes). The bill also authorizeswastewater infrastructure on the Blackfeet Indian Reservation in Montana.The bill requires the community's water rights to be held in trust for the benefit of the community and its allottees. The community must enact a tribal water code to regulate its water rights.Additionally, the bill authorizes the Department of the Interior and the Department of Agriculture (as applicable) to enter negotiations with Montana to exchange certain state lands for federal lands to be held in trust for the benefit of the community.The bill prohibits gaming on the land taken into trust.The bill alsoestablishes the Aaniiih Nakoda Settlement Trust Fund (and specified accounts) for purposes of carrying out this bill,establishes the Fort Belknap Indian Community Water Settlement Implementation Fund (and specified accounts) for purposes of carrying out this bill, andprovides funding for specified accounts established by the bill.The bill also authorizes Interior to plan, design, construct, operate, maintain, and replace community water distribution and wastewater treatment facilities for the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana. | Republican, MT | House - In Committee; Senate - Reported | Zinke, Ryan K. [Rep.-R-MT-1]; Daines, Steve [Sen.-R-MT] |
| S. 546 | Technical Correction to the Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act of 2025 | This bill makes a technical correction to the Omnibus Public Land Management Act of 2009 specifically related to the water rights of the Shoshone-Paiute Tribes of the Duck Valley Reservation. The bill authorizes an additional appropriation of $5,124,902.12 to be deposited into the Development Fund, which appears to be a fund established for the benefit of the Shoshone-Paiute Tribes. The technical correction involves modifying Section 10807(b)(3) of the original act by adding a new subsection that specifically authorizes the appropriation of these adjusted interest payments. While the precise details of why this specific amount is being authorized are not explicitly stated, the bill suggests it is a financial adjustment related to the tribe's water rights settlement. The bill demonstrates a congressional commitment to addressing financial details and potential oversights in previous tribal water rights legislation. | Bipartisan, ID, NV | Crossed Over | Cortez Masto, Catherine [Sen.-D-NV] |
| S. 689 | Tule River Tribe Reserved Water Rights Settlement Act of 2025 | This bill establishes a comprehensive water rights settlement for the Tule River Tribe in California, addressing long-standing water rights claims and providing significant financial and land resources to the Tribe. The legislation ratifies a 2007 Agreement between the Tribe, the South Tule Independent Ditch Company, and the Tule River Association, and authorizes a tribal water right of up to 5,828 acre-feet of surface water annually from the South Fork Tule River. The bill creates two trust fund accounts totaling $568 million: one for water development projects and another for operation, maintenance, and replacement (OM&R) costs. It transfers approximately 11,000 acres of federal and tribally owned lands into trust for the Tribe, including Bureau of Land Management lands, Forest Service lands, and various privately owned parcels. The legislation includes extensive provisions for waiving and releasing past water rights claims by the Tribe against the United States, while preserving certain future environmental and water quality rights. The bill also establishes a process for judicial review of the water rights agreement, creates specific operational rules for water diversion, and includes protections to ensure the Tribe can use and develop its water rights without risk of forfeiture. Notably, the lands transferred into trust are explicitly prohibited from being used for gaming purposes, and the settlement is designed to provide a final and comprehensive resolution to the Tribe's water rights claims. | Democrat, CA | Reported | Padilla, Alex [Sen.-D-CA] |
| H.R. 8461 / S. 4381 | Western Tribal Water Act of 2026 | Bipartisan, CO | House - In Committee; Senate - In Committee | Hurd, Jeff [Rep.-R-CO-3]; Bennet, Michael F. [Sen.-D-CO] | |
| H.R. 635 | WaterSMART Access for Tribes Act | This bill, known as the "WaterSMART Access for Tribes Act", amends the Omnibus Public Land Management Act to improve water management opportunities for Native American tribes. Specifically, the bill modifies existing grant provisions to allow the Secretary of the Interior to reduce or completely waive the non-Federal (tribal) share of funding for water infrastructure improvements and related activities. This waiver can be granted if the Secretary determines that requiring the tribal contribution would create a financial hardship for the tribe. The change is intended to make water conservation and efficiency grants more accessible to Native American tribes by removing potential financial barriers that might prevent tribes from participating in or completing water-related infrastructure projects. By allowing for flexible funding arrangements, the bill aims to support tribal water management efforts and infrastructure development. | Democrat, CA, CO, KS, NM, NV | In Committee | Stansbury, Melanie A. [Rep.-D-NM-1] |
| H.R. 4377 / S. 2272 | Tribal Access to Clean Water Act of 2025 | This bill, the Tribal Access to Clean Water Act of 2025, aims to address the critical water infrastructure needs of Native American Tribes and Native Hawaiian Communities by providing comprehensive funding and support for clean water access. The bill recognizes that nearly half of households on Tribal lands lack reliable water sources and basic sanitation, which is a violation of the federal government's trust responsibility to these communities. It authorizes significant funding across multiple federal agencies, including $100 million annually through the Department of Agriculture for water and waste facility loans and grants, $500 million annually through the Indian Health Service for sanitation facility construction, and $18 million annually for the Bureau of Reclamation's Native American Affairs Technical Assistance Program. The bill also provides funds for technical assistance to help Tribes and Native Hawaiian organizations access funding, develop utility management capabilities, and improve water infrastructure. Additionally, it expands the definition of eligible facilities to include community structures essential to Tribal life, such as schools, hospitals, and Tribal offices. The legislation aims to ensure that all Tribal lands receive safe and adequate water supply systems by offering financial support, removing traditional matching contribution requirements, and prioritizing the most critical infrastructure needs, with a commitment to long-term maintenance and support of water infrastructure projects. | Democrat, CA, CO, NM, OR, WI | House - In Committee; Senate - In Committee | Neguse, Joe [Rep.-D-CO-2]; Bennet, Michael F. [Sen.-D-CO] |
Western Water Perspectives
Summer 2026 Litigation Tracking
| Case Name | Case Number | Court | Issues | Summary | Relevant Dates |
|---|---|---|---|---|---|
| City of Salem v. Corps | 6:26-cv-01381 | U.S. District Court of Oregon | Public water supply and ESA fish passage | In 2024, the National Marine Fisheries Service (NMFS) issued its Biological Opinion (BiOp), directing the Corps to implement annual deep drawdowns of the Detroit Reservoir to an elevation of 1,395 feet to facilitate juvenile fish passage. Salem’s downstream water facility relies on a slow sand filtration system designed for raw water under 10 Nephelometric Turbidity Units (NTU). The City argued that drawing the reservoir down to a historically low elevation of 1,395 feet will mobilize massive amounts of fine sediment, causing downstream turbidity levels to spike well over 50 NTU, which will clog filters, reduce water production capacity, and potentially cause a complete shutdown of the regional drinking water supply that serves 220,000 residents. Congress directed the Corps in the 2024 Water Resources Development Act (WRDA) to deliver a comprehensive turbidity impact report within a year, which was never submitted to Congress. In June 2025, the City of Salem proactively submitted a technical memorandum to the Corps warning of severe sand filtration vulnerabilities and requesting alternative operational strategies. The Corps completed its Supplemental Environmental Impact Statement (SEIS), retaining the deep drawdown parameters while acknowledging Salem’s public water supply concerns in a generalized qualitative manner. On June 23, 2026, the Corps published its formal Record of Decision (ROD), officially approving and authorizing the Willamette Valley System operational revisions. The City of Salem asserted several causes of action under the Administrative Procedure Act (APA), claiming the Corps violated federal law by (1) failing to take a quantitative "hard look" at downstream water impacts under NEPA; (2) failing to evaluate reasonable alternatives (such as turbidity-based operational triggers); (3) ignoring substantive public comments; (4) proceeding without a mandatory turbidity report required by WRDA; and (5) failing to comply with state numeric and narrative water quality standards under the Clean Water Act. The City seeks declaratory and injunctive relief to vacate the Corps' ROD and postpone the late 2026 drawdown until the agency fully complies with federal laws and establishes definitive water safety safeguards. | 7/8/26: Complaint filed |
| Nebraska v. Colorado | 22O161 | U.S. Supreme Court | South Platte River Compact | On June 29, 2026 the U.S. Supreme Court agreed to hear Nebraska v. Colorado (No. 22O161), a dispute over the 1923 South Platte River Compact. Nebraska claims that Colorado's water management has cost them over one million acre-feet of water. Specifically, Nebraska alleges that Colorado has: (1) allowed junior groundwater diversions that cause summer flows to drop below Nebraska's guaranteed 120 cubic feet per second, and subsequently failed to curtail those junior users or make up the resulting shortfalls within 72 hours when the drops occur; (2) administered complex groundwater augmentation plans that are not easily measurable or subject to objective verification, violating the Compact's requirement that the agreement be simple and “self-executing”; (3) actively interfered with Nebraska's Compact-given right to acquire land and build the Perkins County Canal for winter flow collection. (WSW #2683). In May, 2026 the United States filed an amicus brief, as invited by the Court, seeking to limit the case to Nebraska’s claim that Colorado deprived it of water by permitting lower-priority users to take water out of turn—through the use of groundwater augmentation plans—without ensuring the water’s timely replacement. As the brief states, "A claim that one State has deprived another of water to which it is entitled under an interstate compact is a quintessential case for this Court’s original jurisdiction.” The Court’s granted leave for Nebraska to file all of its claims. | 7/16/25: Nebraska Motion for Leave to File Complaint 10/15/25: Colorado Brief in Opposition 10/25/25: Nebraska Reply 5/20/26: U.S. Amicus Brief 7/29/26: S. Ct. granted motion |
| Arizona v. Fondomonte | CV2024-035721 | Superior Court of Arizona, Maricopa County | Excessive groundwater pumping | Arizona's AG brought this nuisance action in an effort to enjoin Fondomante (an alfalfa grower that is a subsidiary of a Suadi Arabian company) from excessively pumping groundwater in violation of A.R.S.§13-2917, and to require the defendant to establish an abatement fund. Arizona alleged adverse effects on public health and safety, land subsidence, water quality degradation, a rapidly dropping water table, with anticipated damage to infrastructure and worsening groundwater shortages in the Ranengras Basin if the pumping isn't stopped. Arizona alleged that Fondomante has been pumping excessive groundwater since 2014, with wells capable of pumping 4,000 gpm. Wells near the Fondomante land have been going dry in recent years. On May 12, 2026, the court rejected Fondomonte's argument that the case should be paused entirely while the Arizona Department of Water Resources conducts its multi-year Active Management Area study of the basin. The court found that a complete stay would be inappropriate because the State's lawsuit seeks relief — including an abatement fund — that goes beyond what the ADWR process can provide. | 2/11/24: Arizona Complaint filed 1/28/25: Motion for More Defiinite Statement 4/9/25: Fondomonte's Answer 5/6/25: Motion to Intervene by Arizona Farm and Ranch Group Coalition (State opposed) 8/12/25: Oral Arguments 9/12/25: Fondomante's Motion for Judgement on the Pleadings 5/12/26: Court ruling, rejecting stay during ADWR AMA study |
| Utah Physicians for a Healthy Environment et al. v. Utah Department of Natural Resources, et al | #230906637 | Utah Third District Court | Public Trust Doctrine | The complaint asserted a claim against the State agencies for a breach of trust for failure to protect the public resources in the Great Salt Lake (GSL). In particular, the plaintiffs sought a declaratory judgment that the “public trust doctrine imposes a duty on [State] Defendants to identify and implement feasible means of maintaining the Great Salt Lake at least at the [4,198 feet] level, including the reduction of unsustainable upstream diversions.” The Utah Division of Water Rights argued in their Motion to Dismiss that “inserting water rights into Utah’s public trust doctrine goes against the long-standing water public policy of the state” and “the State Engineer lacks legal authority to curtail water rights to maintain lake levels.” The Central Utah, Jordan Valley, and Weber Basin Water Conservancy Districts, intervener defendants, argued that the court lacks jurisdiction because “(1) federally owned water rights and related facilities are subject to sovereign immunity; (2) by seeking to ‘modify’ the legal extent of every water right in the GSL Basin, Plaintiffs are effectively seeking a general adjudication of water rights, but general adjudications are special statutory civil actions which can only be brought pursuant to Title 73, Chapter 4; and (3) District projects include trans-basin diversions to import hundreds of thousands of acre-feet of water from the Colorado River Basin to the Wasatch Front, and issues related to such ‘imported water’ can only be determined in a general adjudication proceeding.” The Water Conservancy Districts also noted that the complaint failed to join either the tens of thousands of water right holders or the United States as parties to the complaint. Water user organizations that intervened as defendants included water districts, municipalities, and a regional power company. They argued that “modifying water rights is constitutionally prohibited, the Plaintiffs’ proposed remedy is an uncompensated taking of private property and creates impossible conflicts among state agencies, that article XX, section 1 of the Utah Constitution is not self-executing, and Plaintiffs have no claim under Utah’s Uniform Trust Code.” The Court disagreed with the arguments to the extent that it has subject matter jurisdiction to “issue a limited declaratory judgment regarding (a) the scope of the public trust doctrine, which includes the navigable waters of the [GSL]; (b) the scope of the State’s duties as trustee of the public trust, which includes the duty to protect the Great Salt Lake from substantial impairment and preserve the waters of the [GSL] so that can be used for the trust purposes of navigation, commerce, fishing, and recreation; and (c) the State’s alleged breach of its trustee duties. However, the court agrees with Defendants that it does not have subject matter jurisdiction to issue declaratory relief in the form of an order directing the State to ‘review, and where necessary, modify [upstream] diversions to protect and preserve the public trust. Consequently, the court grants the Motions to Dismiss with respect to this aspect of Plaintiffs’ declaratory judgment claim.” | September 2024: Hearing on Motions to Dismss 3/27/25: Court decision partially granting the Motions to Dismiss, moving forward with the more limited question of the scope of the public trust doctrine in Utah 2/24/26: Plaintiffs filed Motion for TRO and preliminary injunction to prevent the case from being transfered from the water judge over to a three-judge panel under newly passed Utah legislation |
| Iowa et al. v. CEQ | 1:24-cv-00089 | U.S. District Court for North Dakota | CEQ Rulemaking Authority; 2024 NEPA Rule | A coalition of 21 states (including AK, ID, KS, MT, NE, ND, SD, TX, UT, and WY) alleged that the 2024 NEPA Rule violated the NEPA statute and the Administrative Procedures Act (APA), and requested that the 2024 Rule be vacated and the 2020 Rule reinstated. The Plaintiff States argued: “NEPA is a procedural statute intended to ensure that federal agencies take a hard look at the environmental impacts of their proposed actions. The statute does not require or authorize an agency to take any substantive actions or elevate the protection of environmental resources above other priorities.” The Plaintiff States noted that the 2024 Rule failed to sufficiently consider its own relevant impacts under the NEPA statute. They argued that there is no statutory or Congressional authority to create exceptions for beneficial impacts or special environmental assessments. A coalition of 13 States intervened as defendants (including CA, CO, NM, and OR). They argued that the 2024 NEPA Rule “reverses many of the remaining problematic provisions of the 2020 Rule and reinstates aspects of the 1978 regulations, while also modernizing and updating the 1978 regulations, in ways that streamline review and increase public participation, without sacrificing quality analysis. The Final Rule correctly recognizes federal agencies’ obligation under NEPA to identify, analyze, and consider alternatives and mitigation measures for the reasonably foreseeable direct, indirect, and cumulative effects, including ‘climate change related effects’ of all major federal actions.” The State Intervenor Defendants noted that under a reinstated 2020 Rule, they would lose the opportunity to comment on actions that proceed under the diminished public process of a categorical exclusion, or challenge them before environmental or health injuries occur, and it would interfere with their sovereign interests in their respective state lands, waters, and other natural resources. On 2/3/25, the Court ruled on 4 summary judgment motions and held that the Council on Environmental Quality (CEQ) has no rulemaking authority and vacated the 2024 National Environmental Policy Act (NEPA) Implementing Regulations, Revisions Phase 2 (89 FR 35442) on a nationwide basis. “NEPA is not ambiguous. The plain text of the statute does not give CEQ authority to issue binding regulations. NEPA only authorizes CEQ to make recommendations to the President…. For forty years CEQ’s authority has been assumed, but these assumptions by the courts and others do not constitute binding precedent.” “It is very likely that if the CEQ has no authority to promulgate the 2024 Rule, it had no authority for the 2020 Rule or the 1978 Rule and the last valid guidelines from CEQ were those set out under President Nixon. However, vacating a rule does not mean the Court decides the appropriate replacement. The law states that vacating simply reinstates the previous rule. The validity of the 2020 Rule is not before this Court. Whether or not the 2020 Rule conflicts with the FRA [2023 Fiscal Responsibility Act (P.L. 118-5)] does not affect this Court’s ruling and is not relevant to this decision. The Court holds CEQ has no rulemaking authority and therefore, the 2024 Rule is invalid and vacated as a matter of law.” | 2/3/24: Court ruling that CEQ has no rulemaking authority. |
| Marin Audubon Society v. FAA | #23-1067 | D.C. Circuit | CEQ Rulemaking Authority; NEPA compliance | In the underlying case, petitioners challenged the Federal Aviation Administration and the National Park Service on compliance with NEPA in their development of an Air Tour Management Plan (ATMP) for four national parks near San Francisco. Petitioners argued that the Agencies had improperly relied on a categorical exclusion under NEPA to approve the ATMP. The court found the Agencies’ NEPA analysis had used an improper baseline for flight traffic and vacated the plan. However, both parties argued the case based on CEQ’s regulations. The court said those arguments could not be addressed and declared the CEQ’s NEPA regulations themselves were outside CEQ’s authority. “Over many years, our court has expressed serious concerns about whether CEQ’s regulations had any ‘binding effect’ because it was ‘far from clear’ that CEQ had any ‘regulatory authority under [NEPA]’.... It is time for our court’s long-standing misgivings to be put to the test…” The court characterized the question as a separation of powers issue, pointing out that CEQ traces its authority to an Executive Order of the President and not legislation: “No statutory language states or suggests that Congress empowered CEQ to issue rules binding on other agencies—that is, to act as a regulatory agency rather than as an advisory agency. NEPA contains nothing close to the sort of clear language Congress typically uses to confer rulemaking authority.” The court disagreed that the CEQ's regulations could be justified under the “Take Care Clause” of the Constitution (Art. III, Sec. 3). The court reasoned that upholding the CEQ regulations as an exercise of Presidential oversight would imply that the President could circumvent the limitations of agencies, which derive their powers solely from congressional statutes. The court also examined specific legal provisions cited by President Carter in Executive Order 11991 (42 FR 26967), which purportedly authorized CEQ to issue regulations. Reviewing Section 309 of the Clean Air Act, the court determined that it only supports CEQ's role as advisory and not regulatory. It also considered the Environmental Quality Improvement Act of 1970, which established an Office of Environmental Quality headed by CEQ's chairman, and found that the authority granted was to assist other federal agencies, not broad rulemaking authority. | 2/12/24: Court ruling on case |
| San Francisco v. EPA | #23-753 #21-70282 | U.S. Supreme Court 9th Circuit | NPDES Permits with Narrative Limits | On March 4, 2025, the Supreme Court held in a 5-4 decision that §1311(b)(1)(C) does not authorize EPA to issue NPDES permits with "end result" provisions, such as conditioning compliance on the quality of receving waters. Determining the necessary steps to meet WQS is EPA's responsibility (in this context). This does not preclude narrative criteria that EPA and states use to require permittees to follow certain best practices. “Because of the harsh penalties for violating the terms of a permit, the permit shield is invaluable. Because of it, a discharger that complies with all permit conditions can rest assured that it will not be penalized. But the benefit of this provision would be eviscerated if the EPA could impose a permit provision making the permittee responsible for any drop in water quality below the accepted standard. A permittee could do everything required by all the other permit terms. It could devise a careful plan for protecting water quality, and it could diligently implement that plan. But if, in the end, the quality of the water in its receiving waters dropped below the applicable water quality levels, it would face dire potential consequences. It is therefore exceedingly hard to reconcile the Government's interpretation of §1311(b)(1)(C) with the permit shield.” The Court also pointed out “the absence of any provision dealing with the problem that arises when more than one permittee discharges into a body of water with substandard water quality.” BACKGROUND: San Francisco’s wastewater treatment plant discharges treated effluent and combined stormwater-sewer overflows into the near-shore Pacific Ocean, which requires joint NPDES permits from EPA and the local region of the State Water Quality Control Board. In addition to numeric limitations that apply during dry weather, the permit includes a set of comprehensive management requirements for operations during wet weather. Because EPA determined the management requirements would not necessarily achieve WQS, they added provisions that demand the city not violate WQS, but without setting pollutant limits. The city challenged the generic prohibitions in the permit as not compliant with the CWA. The 9th Circuit panel found that the provisions of 33 USC §1311(b)(1)(C) and 40 CFR §122.44(d) empower EPA and states to impose generic prohibitions against violating WQS when necessary, and that EPA possesses the discretion to translate WQS into WQBELs expressed numerically or as generic prohibitions and management practices. The city petitioned for certiorari, arguing that this approach “will encourage EPA and states to continue imposing water quality prohibitions that cause permittees to labor under NPDES permits that fail to define their pollution control obligations with the clarity that the [CWA] demands.” Issue: Whether the CWA allows EPA (or an authorized state) to impose generic prohibitions in NPDES permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform. | 7/31/23: 9th Circuit decision 1/8/24: Petition for Cert 5/28/24: Cert granted 9/3/24: Amicus briefs from California and Washington filed 10/16/24: Oral Arguments 3/4/25: S. Ct. issued 5-4 ruling |
| Idaho v. EPA | 1:24-cv-00100 | U.S. District Court for the District of North Dakota | State WQS to protect Tribal Reserved Treaty Rights (89 FR 35717) | Attorneys general for the States of Alaska, Idaho, Iowa, Louisiana, Montana, Nebraska, North Dakota, South Carolina, South Dakota, Texas, Utah, and Wyoming challenged EPA’s Water Quality Standards (WQS) Regulatory Revisions To Protect Tribal Reserved Rights. The States asked the court to vacate the rule as a violation of the Constitution and the Administrative Procedures Act, and because it exceeds EPA’s authority under the Clean Water Act (CWA). The States argued that Congress did not “give the EPA the power to commandeer states into protecting and adjudicating alleged tribal reserved rights for the government” and that the CWA focuses on water quality, not on protecting specific rights for tribal or non-tribal members of the public. The rule requires case-by-case inquiries into undefined reserved rights that can only be resolved by courts, often over the course of a decade or more. “[T]reaty rights promised by the federal government to the tribes are socially, politically, and legally complex issues.” EPA provides no guidance or mechanism for dispute resolution for “inevitable disagreements–between the tribes themselves, between tribes and States and between the tribes and the federal government–over the extent and nature of any alleged reserved rights.” Such disagreements “have been the subject of countless lawsuits.” The States alleged that the delegation of this effort to evaluate claimed tribal reserved rights to State water management agencies is an “unworkable task.” It would also require a reevaluation of the myriad existing permits and certifications, postponing triennial review processes, likely resulting in WQS “that are orders of magnitude more stringent than those required under existing regulations,” “standards that cannot be reasonably met using cost effective technologies,” and “the vast majority of waters being deemed impaired.” It would impact thousands of regulated entities with existing permitted discharges associated with important economic activities. The States argued that the rule also purports to require state water quality agencies to ensure that tribes have the right to quantities of water needed to secure their claimed rights and uses, such as certain flow rates for fishing rights, “even if the states have determined water quantities inconsistent with the tribal claims.” “The EPA now grants itself the ability to disapprove State water quality standards it determines are not sufficiently protective…. This puts EPA in the position of choosing whose claim to water should be protected–undermining and interfering with the States’ longstanding role, as well as previously negotiated or litigated claims and decreed water rights.” This puts vested water rights at risk. The twelve Tribes that filed a motion to intervene noted that EPA has previously used its oversight authority to disapprove of state WQS that violate CWA requirements because they were insufficiently protective of Tribal reserved rights. They said the States often fail to consider Tribal uses in the WQS process, and the rule “merely clarifies existing requirements and ensures uniform treatment of Tribal reserved rights essential to Tribal rights holders’ subsistence, cultural, and spiritual practices.” They said: “Tribal reserved rights can include the use of water for various purposes, such as fishing, gathering, ceremonial, domestic, irrigation, and municipal uses. Ensuring sufficient water quality for those uses is essential for the health and wellbeing of Tribal members…. Tribes have a clear interest in the quality of waters where they hold usufructuary or ‘use’ rights and the aquatic resources that depend on these waters.” Some of the Tribes consume higher rights of fish and wild rice than the general population, and they are concerned about contaminants such as mercury, sulfate, and chloride. They argued that this litigation threatens to impair the Tribes’ sovereign and conservation interests, and that the federal government cannot adequately protect their interests in this case. “EPA defends the case as the rule maker that must consider the interests of all citizens, which includes weighing competing interests against each other. The Tribes’ interests are more particularized, given the unique treaty rights reserved for different Tribes and the specific interests in the waters of the state each Tribe occupies.” They noted that while they don’t believe the rule goes far enough to protect treaty rights, it is an essential step forward. | 5/28/24: Complaint filed 6/14/24: Amended Complaint and Motion for Prelim. Injunction 6/28/24: Tribes' Motion to Intervene 7/24/24: Tribes' Answer to Amended Complaint 9/5/24: EPA's Answer to Amended Complaint 11/4/24: State Plaintiff's MSJ 1/3/25: EPA's Cross-MSJ 2/10/25: Court stayed the case 8/7/25: Stay extended 40 days 9/16/25: EPA notice that it would not oppose vacatur of the 2024 Rule 10/9/25: Tribes Motion to hold in abeyance 3/9/26: Court order holding the case in abeyance and requiring EPA to report every 180 days |
| Chamber of Commerce et al. v. EPA | #24-1193 | D.C. Circuit | PFAS CERCLA rule (89 FR 39124) | The U.S. Chamber of Commerce petitioned for direct review of EPA's new rule “Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances” (89 FR 39124), under the Administrative Procedures Act and Section 113 of CERCLA. | 6/10/24: Petition filed 2/24/25: Court stayed the case 8/20/25: Stay extended 1/20/26: Oral argument 2/19/26: Plaintiffs filed additional authorities |
| AWWA et al. v. EPA | #24-1188 | D.C. Circuit | PFAS National Primary Drinking Water Regulation (89 FR 32532) | The American Water Works Association (AWWA) and Association of Metropolitan Water Agencies (AMWA) filed a petition for direct review of EPA’s PFAS drinking water rule. published on April 26. “Petitioners strongly support the protection of public health and the use of a sound scientific process in the development of regulations. EPA did not rely on the best available science and the most recent occurrence data, and used novel approaches as the basis for certain portions of the rule. EPA finalized this rule without following the process mandated by Congress, without allowing the public an adequate opportunity to provide comment, and without addressing the concerns raised by those who work to deliver safe and affordable drinking water to their communities. Petitioners are seriously concerned about the impact of this rule on water affordability, particularly for households that struggle to pay for essential needs. EPA has significantly underestimated the costs of this rule and the adverse impact that it will have on individual water users.” | 6/7/24: Petition filed 10/7/24: Opening brief due 2/7/25: Court stayed the case 7/20/25: Stay lifted 9/11/25: EPA Motion to Vacate 5/28/26: EPA filed additional authorities [9./18/26: Oral argument scheduled] |
| Alaska v. EPA | 3:24-cv-84 3:24-cv-59 (consolidated) | U.S. District Court of Alaska | CWA 404 Veto | Alaska sought a declaration that EPA violated the CWA and APA in issuing it's 2023 veto action (Final Determination) that blocked the development of the Pebble Mine by prohibiting the issuance of any CWA 404 permits to discharge into WOTUS. AK asked the court to set aside the Final Determination, allowing the permit application process to proceed forward. | 4/11/24: Alaska's Complaint 6/24/24: EPA Answer 8/2/24: Administrative record filed 8/9/24: EPA Motion for Protective Order 8/20/24: AK Motion to Stay 9/17/24: Stay granted until ruling on EPA's Motion for Protective Order 10/2/24: Protective Order granted 11/12/24: Order consolidating cases to Case No. 3:24-cv-59 2/14/25: Case stayed 8/6/25: Court set briefing schedule for MSJ between October 2025 and February 2026 6/25/26: Oral Arguments on MSJ and other motions |
| State of Alaska v. United States | 1:24-cv-00396 | U.S. Court of Federal Claims | CWA 404 Veto | Alaska petitioned for $700B in compensation for EPA’s 2023 veto action (Final Determination) that blocked the development of the Pebble Mine. Alaska noted that, in authorizing the Statehood Act and Cook Inlet Land Exchange, Congress explicitly recognized that Alaska would develop its mineral resources. The State alleged that these agreements constitute contracts, under which the State would receive land, associated mining rights (subject to lease by the State), and regulatory authority over its lands. They claimed that EPA’s Final Determination decision is a breach of contract by the federal government, as well as a breach of the covenant of good faith and fair dealing. The State further alleged multiple takings counts (permanent categorical taking, permanent non-categorical taking, and temporary taking) stating that EPA’s Final Determination denies all economically beneficial or productive use of the land. They asserted that a finding of either type of permanent taking should entitle them to compensation exceeding $700B, the 100-year value of Pebble Mine estimated by EPA in 2010. The State argued that even if the EPA were to withdraw its Final Determination or it were to be vacated, the Determination has blocked the U.S. Army Corps of Engineers (Corps) from issuing a Clean Water Act (CWA) permit for the Pebble Mine. This would constitute a temporary taking, entitling the State to just compensation in an amount that exceeds $10,000. | 3/14/24: Petition filed 9/4/24: Case stayed (pending district court case outcome, to preserve judicial resources) 6/18/26: Stay extended to 10/13/26 |
| Pacific Coast Federation of Fishermen’s Associations, Inc., et al. v. Ernest Conant, et al. California Sportfishing Protection Alliance, et al., Petitioners v. Adam Nickels, Acting Regional Director, United States Bureau of Reclamation, et al. | 2:11-cv-02980 #23-15599 25-989 | U.S. District Court for the Eastern District of California 9th Circuit U.S. Supreme Court | CWA exemptions for agricultural irrigation, 33 U.S.C. §1342(1)(1) | On September 5, 2025, the 9th Circuit upheld the District Court’s ruling in favor of the defendants. On remand, while addressing procedural errors, the District Court again ruled in favor of the defendants, concluding that they had successfully established the exemption because each alleged pollutant (groundwater seepage from non-irrigated land, sediment in the drain, water from the Vega Solar Project, and flows from highways, residences, and other non-irrigated lands) was either from a nonpoint source or from a point source related to the Project’s overall drainage function. The 9th Circuit said: “The CWA exempts ‘discharges composed entirely of return flows from irrigated agriculture’ from the NPDES permitting scheme. 33 U.S.C. § 1342(l)(1). We hold that the irrigated agriculture exemption applies when return flows do not contain additional point source discharges from activities unrelated to crop production. In the absence of a genuine dispute of material fact, we affirm the district court’s conclusion that Defendants have met their burden of establishing that the irrigation return flow exemption …applies to the Project.” BACKGROUND: The underlying case, filed in 2011, arises from water discharges from the Grasslands Bypass Project in California’s Central Valley. The project was created as a result of a previous lawsuit for the purpose of preventing irrigation water from leaching selenium and salt from the agricultural soil into the groundwater. The project collects water used to irrigate agricultural land through an underground perforated tile drainage system, moving “the collected drainage water through a concrete-lined conveyance for many miles before it dispenses into a wetland.” The plaintiffs alleged that the Bureau of Reclamation (USBR) and the Grasslands Water District are discharging pollutants, without a National Pollutant Discharge Elimination System (NPDES) permit, which made their way into the San Joaquin River and San Francisco Bay Delta in violation of the Clean Water Act (CWA). The defendants argued that the agricultural land is exempt from CWA permitting under 33 U.S.C. §1342(1)(1). In 2017, the district court held that, because the majority of the water came from agricultural lands, the exemption applied. In 2019, the 9th Circuit reversed and remanded that decision, noting that the CWA exemption language is “for discharges composed entirely of return flows from irrigated agriculture.” On remand, the lower court again held that the exemption applied, because the water was either from the agricultural lands or from other nonpoint sources that are exempt. The plaintiffs appealed. The Association of California Water Agencies (ACWA) led an agricultural coalition amicus curiae brief, noting that the Grasslands Bypass Project drainage infrastructure is not unique, and “this case may have far-reaching impacts on farmlands that utilize and rely on irrigation drainage facilities essential to maintaining crop production.” The CWA exemption for agricultural return flows applies to “millions of acres of farmland” and a ruling rendering that exemption essentially nonexistent “would broadly affect western agriculture, forcing thousands of farmers and operators of agricultural drainage systems across the western United States to immediately apply for and operate under onerous NPDES permits or face liability under the CWA.” They emphasized the lower court’s determination that the exemption “cannot be defeated merely because additional nonpoint sources of pollution may enter into agricultural drains that convey agricultural return flows to waters of the United States.” | 2011: Complaint filed 2017: District Court Decision 2019: 9th Circuit Decision (remand) 2/21/23: ED CA ruling that exemption still applied 4/19/23: Notice of Appeal to 9th Cir. 3/4/24: Agriculture Coalition Amicus Brief 10/21/24: Oral Argument 9/5/25: 9th Circuit decision 11/18/25: Rehearing denied 2/17/26: Petition for Certiorari 6/29/26: S. Ct. denied petition for cert |
| Center for Biological Diversity (CBD) et al. v. Michael S. Regan, et al. | 1:21-cv-00119 #24-5101, #24-5156, #24-5159 | U.S. District Court for the District of Columbia D.C. Circuit Court | Delegation of CWA §404 to Florida and Endangered Species Act | The Court issued a partial MSJ ruling (2/15/24) that the Environmental Protection Agency (EPA) and the Fish and Wildlife Service (FWS) violated the Endangered Species Act (ESA) when they approved Florida’s application to assume Clean Water Act (CWA) §404 permitting authority. The court held that the agencies had circumvented ESA requirements by approving programmatic Section 7 consultation, providing broad ESA liability protection for all future state permittees. The court vacated the USFWS’ programmatic Biological Opinion (BiOp) and Incidental Take Statement (ITS), as well as EPA’s approval of Florida’s §404 assumption application. The intervenor defendants, the State of Florida and the Florida Department of Environmental Protection (FDEP), filed a brief (2/26/24) in support of the partial stay. They noted that they had over 1,000 pending §404 individual and general permit applications for roads and bridges, hospital construction projects, school buildings and facilities, affordable housing, military base projects, power grid reliability projects, and various projects to improve water quality in the Everglades. They emphasized the need for the stay to minimize the disruptive consequences of vacatur. They asked for clarification on several questions the court left unanswered regarding procedures for applications that “may affect” listed species and their continued authority over applications that do not. The Florida intervenor defendants alternatively presented the approach used by New Jersey and Michigan, involving memoranda of agreement (MOAs) that facilitate EPA or USFWS review where the State identifies applications that may affect ESA listed species. They noted that while the court found the Florida Section 7 consultation deficient, the formal process went “above and beyond what was done in the other two states at the assumption stage” where no programmatic BiOp was ever prepared. BACKGROUND: CBD argued that the FWS’ programmatic BiOp, programmatic ITS, and technical assistance processes “create an ESA scheme that is not authorized by law” and “give [Florida] a workaround regarding the mechanisms that Congress provided for establishing take limits, extending liability coverage, and determining jeopardy to species.” They also allege that the EPA relied on the facially deficient Section 7 statements and failed to consult with the National Marine Fisheries Service (NMFS). The federal agencies argued that even if their Section 7 consultations were insufficient, they had created a technical assistance process between Florida and the agencies to address all of the ESA requirements on a permit-by-permit basis by requiring Florida to consult with FWS regarding each application. They requested that the Court only vacate approval to those projects in the category of “may affect, likely to adversely affect” listed species. | 1/1/21: Complaint filed in DC Dist. Ct. 2/15/24: Partial MSJ decision (vacatur of 404 delegation) 2/26/24: Federal agency defendants and Florida intervenor defendants arguments on partial stay of vacatur 4/23/24: Court denied partial stay of vacatur -- 4/26/24: Florida appealed (#24-5101) 6/10/24: CBD cross-appeal (#24-5156) 6/11/24: Federal agencies appealed (#24-5159) 9/16/24: Florida brief; federal agencies brief 9/23/24: State amicus brief 5/5/24: Oral argument 3/27/26: DC Circuit affirmed the lower court for all three consolidated appeals [8/7/26: extended deadline for petition for rehearing en banc] |
| Sullivan et al. v. Lincoln County et al. | #84739 (lower court: #A-20-816761-C) | Nevada Supreme Court (Clark County District Court) | Conjunctive Management and State Engineer Authority | On January 25, 2024, the Nevada Supreme Court ruled in a 7-0 decision on the consolidated appeals of the State Engineer’s Order 1309 regarding the redesignation of seven hydrographic basins as one “superbasin” for the purposes of managing surface and groundwater conjunctively, and reversing the lower court. The seven basins just north of Las Vegas have a lengthy history of new water right application restrictions by the Nevada State Engineer going back to 2001. In June 2020, State Engineer Adam Sullivan issued Order 1309, determining that seven basins were interconnected and withdrawals from one affected water levels in other basins. He found that pumping groundwater from these basins may reduce availability to those with vested surface water rights, including rights to the Muddy River, which was fully appropriated prior to 1905. The Muddy River is also the only habitat of the Moapa Dace, a fish protected under the Endangered Species Act. The order combined the basins into one superbasin, and named it the Lower White River Flow System (LWRFS). Additionally, the order indicated that existing appropriations of water exceeded the rate of recharge in the superbasin. The State Engineer determined that 8,000 acre-feet per year was the maximum amount that could be appropriated from the LWRFS without affecting vested water rights and other public interests, and noted that it might be less. The Nevada Supreme Court held that the State Engineer was within his authority to manage the waters conjunctively, and was empowered to issue Order 1309. The court held that the State Engineer has implied authority under NRS 533.085, which prohibits granting statutory water rights to the impairment of prior vested water rights. Water rights under the Muddy River Decree are protected, pre-statutory vested rights, and the State Engineer must be able to study and regulate groundwater resources feeding the Muddy River. “If statutory rights holders deplete groundwater resources such that the flow of water to the elevated springs that feed the Muddy River is reduced to the point of impairing vested rights, then the State Engineer has the authority to invoke NRS 533.085 to protect vested rights…. We likewise decline to hold that NRS 533.085 solely applies within a single previously delineated basin and cannot extend across multiple basins regardless of the location of the supply of water. Without this authority, junior rights holders could deplete the shared water resources according to their local priority and previously granted appropriation, regardless of the impact such appropriation has on vested rights holders outside the local basin. The result would be contrary to both NRS 533.058 and the prior appropriation doctrine because it could impair the most senior prestatutory vested rights that rely on this supply of water.” The court also pointed to NRS 533.024 which requires the State Engineer to consider the best available science in making decisions about available sources of water, and to manage the appropriation, use, and administration of all waters conjunctively. The court held that the “best available science” presented at the Order 1309 hearing established that the basins are interconnected. “If the best available science indicates that groundwater and surface water in the LWRFS are interrelated and that appropriations from one reduces the flow of the other, then the State Engineer should manage these rights together based on a shared source of supply.” The court also found implied authority through several other statutes. The court found that the State Engineer had provided adequate notice and opportunity to be heard at the Order 1309 hearing, and had met due process obligations. While the respondents took issue with the criteria the State Engineer used to determine the boundary of the basin, the “Due Process Clause does not require the State Engineer to explain how he will analyze and weigh evidence prior to the evidence being submitted at a hearing.” Instead, it forbids an agency from using evidence in a way that “forecloses an opportunity to offer a contrary presentation.” | |
| State of Louisiana et al. v. U.S. Environmental Protection Agency et al. | 2:23-cv-01714 | U.S. District Court for the Western District of Louisiana | CWA §401 Water Quality Certification Improvement Rule (2023 Rule) (88 FR 66558) | The plaintiff states (including AK, MT, OK, and WY) and regulated entities challenged the 2023 Rule, arguing that it expands the states’ authority beyond the scope of the CWA by: (1) allowing states to establish additional requirements for a complete certification request; (2) directing states to evaluate all potential water quality-related effects of a proposed activity (rather than evaluating the point source discharge only) under all types of state water quality requirements; (3) retroactively applying the rule to pending requests; and (4) failing to adequately carry out APA notice-and-comment procedures. The petitioners requested an order declaring that the 2023 Rule violates the CWA and the APA; vacating and setting aside the 2023 Rule; and enjoining EPA from applying or enforcing the 2023 Rule. Since filing the complaint on December 4, the plaintiffs also petitioned for preliminary injunctive relief to stay the 2023 Rule in states bringing the lawsuit. The intervenor defendant states (including CA, NM, OR, and WA) argued that they have a “clear and direct interest in upholding the 2023 Rule to preserve their sovereign authority over water quality within their respective states under section 401 of the CWA.” They argued that their interests are not adequately represented by either the plaintiff states or EPA. They noted that the plaintiff’s plea to invalidate the 2023 Rule and return to the 2020 Rule may impair intervenor defendant states’ ability to protect their interests. They disagreed with the plaintiffs allegations that the 2023 Rule is overly broad or burdensome, stating: “Placing the ultimate authority to ensure proposed projects comply with state water quality requirements in the hands of states is the core reason Congress included the section 401 certification requirement in the first place.” They pointed out that the nature of cooperative federalism as mandated by the CWA requires independent state representation, and that EPA’s interests in this case diverge from their own. | 12/4/23: Complaint filed 1/12/24: 18 states filed a motion to intervene as defendants 2/6/24: EPA Answer 3/7/24: Motion for Preliminary Injunction denied 5/30/24: Plaintiffs States' MSJ 7/30/24: Intervenor Defendant States Cross MSJ 8/8/24: Court set deadlines for MSJ responses by 9/30/24, and replies by 10/30/24 2/11/25: Court stayed the case for 90 days 5/18/26: stay extended 90 days |
| Klamath Irrigation District v. Reclamation | 22-1116 (Klamath I) 23-216 (Klamath II) (appeal from a motion in In re Waters of the Klamath River Basin, #WA1300001) | U.S. Supreme Court U.S. District Court for the District of Oregon (Klamath I) Klamath County Circuit Court (Klamath II) | Federal water rights | The underlying issue in both cases was whether Reclamation held the water rights necessary to implement its 2019-2024 Klamath Project operating procedures, based on the biological opinions of the FWS and NMFS, to maintain instream flows from the Upper Klamath Lake to the Klamath River downstream to benefit the threatened salmon and to comply with the ESA. Reclamation noted that the 2019-2024 operations plan has the added effect of partially protecting the tribal fishing-based water rights in California. The Klamath River Basin Compact between California and Oregon (1957) recognizes vested rights to waters originating in the Upper Klamath River Basin, whether diverted or used in Oregon or California, and does not deprive tribes of their rights to those waters under treaty, agreement, or statute. While the United States filed water rights claims in the Klamath Basin Water Adjudication on behalf of tribes in Oregon, and for diversions that take place in Oregon but are used in California, they did not file claims on behalf of the Hoopa Valley Tribe and Yurok Tribe in California. USBR asserted that they did not need to because those tribes and their water uses are outside of Oregon jurisdiction. The Klamath I APA claims alleged that USBR’s 2019-2024 operating procedures were unlawful. The lower court dismissed the case under FRCP 19, because the Klamath Tribes and the Hoopa Valley Tribe, which could not be joined as parties to the APA action due to their tribal sovereign immunity, were indispensable parties to a lawsuit that could impact their rights to the water for hunting, fishing, and gathering. The court held that because the case was not about administering rights following a state stream adjudication, the McCarren Amendment did not apply and could not waive the immunity of the tribes. The 9th Circuit affirmed. In its Klamath I petition for certiorari, the Klamath Irrigation District’s (KID) question presented was: "Whether [FRCP] 19 requires dismissal of an action challenging a federal agency's use of water subject to state-adjudicated water rights if a Native American tribe asserts an interest in the suit and does not consent to joinder." KID argued that the decision of the lower courts granted Native American tribes a veto power over water rights cases against the federal government, and undermined the Western water rights adjudication regime. KID argued: "The real-world consequences of the Ninth Circuit's holding are severe. Property rights that cannot be asserted in court are not property rights at all. The Ninth Circuit's ruling deprived thousands of farmers and ranchers in Oregon's Klamath Water Basin of their ability to vindicate water rights in Oregon's Upper Klamath Lake against the federal government after they spent more than 38 years in litigation to obtain a comprehensive adjudication of all state and federal rights in that source." KID noted that it did not seek to prevent USBR from satisfying its obligations to the Tribes or under the ESA, only to require that USBR obtain water using lawful means, including purchase, appropriation, or judicial condemnation. KID also expressed concerns about the U.S. Supreme Court waiting for a Circuit split. "Nearly all Native American land is located within the Ninth and Tenth Circuits. This means that only those two circuits are likely to address the Rule 19 and McCarran Amendment questions this case raises; indeed, they account for most of the cases that cite the McCarran Amendment and Reclamation Act…. [The Ninth Circuit] has jurisdiction over seven Western States that encompass a population of over 65 million people-approximately a fifth of the country…. Scarcity of water is one of the most important problems facing this vast region, yet the decision below severely undermines the legal framework to determine and administer rights in that scarce and vital resource." The underlying case for Klamath II began as a motion for a preliminary injunction in the Klamath Basin Water Adjudication. In Oregon, OWRD handles the first phase of reviewing water rights claims, hearing contested claims, and issuing a determination. OWRD began the Klamath Basin Water Adjudication in 1975 and issued its Findings of Fact and Final Order of Determination in 2013. In the second phase, the Klamath County Circuit Court is responsible for resolution of exceptions and issuance of the water right decree. In 2021, KID filed a motion for a preliminary injunction in the Klamath Basin Water Adjudication to enjoin certain aspects of USBR's operation of the Klamath Project, based on the water rights and storage rights in OWRD's Final Order of Determination. KID argued that USBR had to acquire a water right to implement its operations plan, and that the Hoopa Valley Tribe and Yurok Tribe in California lacked any water rights to the Klamath River flows because they had failed to file water rights claims in Oregon. USBR removed the motion to the U.S. District Court for the District of Oregon (KID v. USBR, #1:21-cv-504) due to ESA compliance implications under federal law, as well as the reserved water rights of tribes in California. OWRD joined as an intervenor. The U.S. District Court denied KID's subsequent motion to remand back to the State Court, holding that the Adjudication did not possess exclusive jurisdiction over the injunctive claim. The court rejected KID's argument that the McCarran Amendment waived the United States' sovereign immunity on the issues of ESA compliance and the fishing-based water rights in California, noting that these issues are not governed by Oregon law. OWRD explained that the jurisdiction of the Klamath Basin Water Adjudication does not extend to these issues. On appeal, when KID sought a writ of mandamus on the motion for remand, the 9th Circuit (#22-70052) affirmed, holding that the McCarran Amendment does not expand a state court's subject matter jurisdiction or empower a state to adjudicate rights beyond its jurisdiction. On appeal, KID's question presented was: "Whether the federal government can avoid the doctrine of prior exclusive jurisdiction in an ongoing, comprehensive water adjudication under the McCarran Amendment by asserting defenses based on federal law." KID argued that the ruling of the lower courts enables the federal government to remove any water rights case or enforcement proceeding that affects an interstate water system or federal obligations to federal court. KID pointed out that Klamath I enabled the tribes to close the federal courthouse doors to water users, and Klamath II allowed the federal government to close the state courthouse doors. "As a result, the rights of every other water user turn on the tactical litigation decisions of parties who compete with them for access to this limited resource. Collectively, those parties now have the power to insulate agency water rights actions from judicial review." | 5/11/23: Klamath I Petition for Cert 9/27/23: Federal brief in opposition to Klamath I 10/20/23: Klamath I Petition denied 1/8/24: Klamation II Petition denied |
| Stone v. High Mountain Mining Company | 22-1340 | 10th Circuit U.S. District Court for Colorado | Maui "functional equivalent" standard | The plaintiffs alleged CWA violations by the mining company due to seepage from its settling ponds that flowed into groundwater and to the Middle Fork of the South Platte River. The district court agreed that the ponds constituted a point source and that High Mountain’s operation of them constituted an unpermitted discharge of pollutants into navigable waters. The district court relied on three Maui factors to make its determination: (1) transit time; (2) distance traveled; and (3) the nature of the material through which the pollutant traveled. The district court gave “no weight” to the remaining Maui factors because neither party presented evidence that the factors should weigh in their favor. High Mountain Mining Company appealed the decision. The Tenth Circuit largely agreed with the district court’s analysis of time and distance. However, the Court found that the district court had erred by not making additional findings on the remaining Maui factors, and specifically highlighted the factors of: (1) dilution and chemical changes; and (2) relative amount of pollutant entering the water. The Court also held that by omitting factually underdeveloped factors, the district court impermissibly shifted the burden of proof from the citizen plaintiffs to the mining company. The Tenth Circuit also noted Colorado’s complex mining regulatory regime surrounding its 10,380 active mines, and that Maui indicates that courts should not undermine state regulations. The Court concluded that the case required a more “comprehensive and rigorous” application of Maui, and suggested that the court may wish to reopen the evidentiary hearing rather than dismiss the plaintiffs’ claims. The Tenth Circuit reversed and remanded. | |
| In Re Application A-19594, Central Platte Natural Resources District et al. v. NDNR | 315 Neb. 311 | Nebraska Supreme Court | Interbasin Transfers | On October 6, 2023, the Nebraska Supreme Court affirmed a decision of the Nebraska Department of Natural Resources (NDNR) and dismissed objections to an interbasin transfer application for lack of standing. In the underlying application, the Platte to Republican Basin High Flow Diversion Project (PRD) filed for a conditional interbasin transfer permit to divert up to 150 cubic feet per second (cfs) of excess surface water flow from the over appropriated Platte River Basin into the Republican River Basin. The conditions included: (1) that the interbasin transfers would only occur when the Platte River reached a minimum level of discharge; and (2) that the PRD appropriation would be in a perpetually junior status and would never be able to exercise a call over any future junior appropriations on the Platte River. The water transfers, when available, would be used for Republican River Compact compliance. Several entities filed objections to the application alleging that they would be harmed by the interbasin transfer, including, among other concerns, that less excess water would be available in the Platte River for other downstream recharge projects. The court held that, where the demands of state-protected instream flows and all other water rights would be met, the argument that “potentially less water would be available” was a speculative harm that was insufficient to confer standing for an objection to the application. | 10/6/23: Nebraska Supreme Court decision |
| Miccosukee Tribe v. EPA | 1:22-cv-22459 | U.S. District Court for the Southern District of Florida | Delegation of CWA 404 and Tribal Lands | The Miccosukee Tribe alleged that EPA’s approval of Florida’s CWA 404 permitting program (85 FR 83553) impermissibly disregarded and diminished the Miccosukee’s Tribal Sovereignty by subjecting more than 200,000 acres of Indian lands to the State’s regulatory jurisdiction. Tribal members have been prevented from obtaining permits to build homes on tribal lands in the Everglades. The complaint asserted that Miccosukee lands include more than the reservation lands, noting that the tribe holds interests in lands held by the federal government, Miccosukee reserved areas, perpetually leased lands, reserved rights lands, and fee simple lands. EPA’s approval of Florida’s proposal transferred CWA § 404 permitting authority over the Miccosukee Leased Lands, Reserved Rights, and Fee Simple Lands to the State of Florida unless such lands were subject to the ebb and flow of the tide. The complaint alleged that the state lacks legal authority to carry out the CWA 404 program on Indian lands, and in the absence of that authority, EPA's regulations (40 CFR 233.2(b)) specify that 404 permitting authority will remain with the Army Corps of Engineers. Rather than describe the waters within the state's jurisdiction and the waters retained by the Corps, Florida's description said that "State-assumed waters...are all waters of the United States that are not retained waters," provided inconsistent definitions of Corps-retained waters, and although Florida noted that "Indian country, as defined in 18 USC 1151, is not inlcuded in Florida's 404 program," failed to include other Indian lands. The Tribe sought five counts of relief under the APA, requesting that EPA's transfer of authority over certain waters be vacated. Florida intervened and countered in the MSJ reply (#43) that "the Tribe's boundless view of 'Indian lands' as much broader than 'Indian country'" is erroneous and unprecedented. "Florida’s Section 404 Program remains subject to continuous permit-by-permit oversight by the federal government and allows for full involvement by the Tribe at every stage. As such, there is no legal or factual basis to claim ‘sovereignty’ injuries here. The Tribe’s decision to selectively forego participating in the Section 404 program for two proposed permits [the Tribe expressly asked Florida to suspend the processing of the two applications, and Florida consented to that request] is entirely self-inflicted and inconsistent with the Tribe’s own past involvement in state permit programs." Florida argued that Congress clearly did not intend the application process to include a canvass of the landscape on a parcel-by-parcel basis and get bogged down in contentious disputes over jurisdictional line-drawing. "As set forth in the FDEP-Corps MOA, any site-specific line-drawing determinations can be made as circumstances warrant, particularly since the precise boundaries of assumable waters are subject to change based on current conditions." Additionally, Flordia expressly did not seek authority over Indian country (18 USC 1151). "If EPA correctly interpreted Indian lands synonymously with Indian country, Florida's program obviously does not cover Indian lands within the meaning of 40 CFR 233.11(h)." Florida also argued against the Tribe's assertion that state-tribe interactions injure tribal sovereignty and cannot be government-to-government relations, noting that states are also sovereign, and that the BIA has acknowledged: “While federally recognized tribes generally are not subordinate to states, they can have a government-to-government relationship with these other sovereigns, as well… [T]ribes frequently collaborate and cooperate with states through compacts or other agreements on matters of mutual concern such as environmental protection and law enforcement.” | 8/4/22: Tribe filed complaint against EPA 9/7/22: Florida motion to intervene (granted) 7/27/23: Tribe's MSJ 9/27/23: EPA cross-MSJ 12/20/23: Florida Reply to cross-MSJ 12/27/23: Florida Reply to MSJ 3/18/24: Stay (pending outcome of CBD v. EPA, which vacated EPA's approval of Florida's CWA 404 assumption of authority) 3/30/26: Court sua sponte acknowledgment of DC Circuit decision and order to show cause 4/21/26: Stay extended for the potential petition for rehearing in CBD v. EPA |
| Diamond Natural Resources Protection & Conservation Assn., et al. v. Diamond Valley Ranch, et al. | No. 81224 | Nevada Supreme Court | water rights and water management in an overdrafted aquifer | On June 16, 2022, the Nevada Supreme Court reversed a district court decision regarding a community-based solution to long-term groundwater shortages in Diamond Valley. The State Engineer designated the Diamond Valley hydrologic basin as a Critical Management Area (CMA) that was over-appropriated and over-pumped. The majority of water rights holders in the basin petitioned the State Engineer to approve a Groundwater Management Plan (GMP) that established a process for removal of the CMA designation. The Court said: “Although the GMP deviated somewhat from the guiding principle underlying Nevada’s water law statutes—the doctrine of prior appropriation, which dictates that priority is assigned based on first in time, first in right to put the water to beneficial use—the State Engineer approved the Diamond Valley GMP. The crux of this case…concerns whether [the relevant statutes] allow the State Engineer to approve a GMP that deviates from the doctrine of prior appropriation. We hold that the Legislature unambiguously gave the State Engineer discretion” to approve the Diamond Valley GMP. The Court then reinstated the State Engineer’s decision. In its recitation of facts, the Court noted that (1) the Diamond Valley aquifer has a perennial yield of 30,000 acre-feet; (2) roughly 76,000 acre-feet of groundwater is withdrawn annually; (3) water rights permit up to 126,000 acre-feet of water to be withdrawn from the aquifer every year; (4) post-1960 water rights would be subject to curtailment if the State Engineer limited pumping to the perennial yield; and (5) pre-1960 water rights would have seniority and would not be subject to curtailment. The Diamond Valley GMP created a 35-year plan to reduce pumping at five-year intervals, requiring all water rights holders to reduce their withdrawals, not just junior users. Senior water rights holders in the basin filed petitions for review of the GMP decision. “The district court concluded that the GMP violated (1) the doctrine of prior appropriation by forcing senior appropriators to reduce their water use; (2) the beneficial use statute, NRS 533.035, by allowing unused groundwater to be banked or transferred; and (3) two permitting statutes, NRS 533.325 and NRS 533.345, by allowing appropriators to change the point or manner of diversion without filing an application with the State Engineer.” The State Engineer and several water rights holders appealed to the Nevada Supreme Court, arguing that the State Engineer had discretion to approve the GMP as long as the factors enumerated in NRS 534.037(2) were considered and the GMP would remove the CMA designation. The seven factors to consider are: (a) the hydrology of the basin; (b) the physical characteristics of the basin; (c) the geographic spacing and location of groundwater withdrawals; (d) the water quality; (e) the wells located in the basin, including domestic wells; (f) whether a GMP already exists; and (g) any other factor deemed relevant by the State Engineer. At oral argument, the Nevada Supreme Court inquired about the evidence the senior water rights holders presented to the State Engineer during the GMP approval process, and it was determined there was no evidence presented and that the burden of proof was on the senior water rights holders to show that the approval of the GMP was arbitrary or capricious. In addressing the dissenting justices, the majority pointed out that the Diamond Valley GMP “ratably reduces water usage such that senior appropriators are still allowed more water than junior appropriators, and in that regard, still honors priority rights and therefore does not abrogate them.” The Court added in a footnote that the holding was limited to non-vested (post-1913) rights, and that it does not preclude any vested (pre-1913) water rights holders (including surface water rights) from asserting future constitutional claims if the GMP actually affects their water rights, “because statutory law may not impair vested water rights. NRS 533.085(1).” | |
| Center for Biological Diversity v. EPA | 22-cv-138 | U.S. District Court in Arizona | ESA and WQS | On August 18, 2023, the court vacated and remanded to EPA one of four cadmium water quality criteria (WQC) for further consideration. The plaintiff challenged EPA’s 2016 revisions to ambient water quality criteria, arguing that EPA failed to consult with the FWS and NMFS as required under Section 7 of the ESA. EPA argued that formal consultation was not required, except with states as they chose how to incorporate those criteria into their water quality standards. The court held that issuing revised WQC is an “action” and, without nationwide consultation, is a violation of the ESA. The court determined that vacating all four cadmium criteria would risk environmental harm, as three criteria were more stringent than those prior to 2016. It agreed, however, to vacate the more lenient 304(a) chronic freshwater cadmium criterion due to the potential effect on protected species. The court determined that this would cause no disruption because states subsequently revising their water quality standards could simply use EPA’s more stringent 2001 criterion. States that already adopted EPA’s 2016 criteria could continue to rely on EPA’s approval until their next triennial review. | |
| Loper Bright Enterprises v. Raimondo | 22-451 (lower court: 21-5166) | U.S. Supreme Court (United States Court of Appeals for the District of Columbia Circuit) | Chevron Deference | On June 28, 2024, the Supreme Court overturned Chevron’s two-step analysis for deference to federal agency interpretations of ambiguous statutes. Section 706 of the Administrative Procedures Act (APA) directs courts to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of agency action.” This is distinguishable from the clear deference to agencies under the APA for judicial review of agency policymaking and factfinding. The Court said: “…delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well-informed by subject matter expertise. The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute…. Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.” BACKGROUND: On May 1, 2023, the U.S. Supreme Court granted certiorari with the limited issue of whether the court should overrule Chevron, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency. In the underlying case, the Magnuson-Stevens Act requires marine vessel owners to make room on board for federal observers to ensure compliance with federal regulations, and NMFS regulations require the owners to pay the salaries of the government-mandated observers. A divided panel of the D.C. Circuit deferred to the NMFS, identifying the silence in the statute as ambiguity that called for Chevron deference. Eighteen states filed an amicus brief in support of the petition, including Alaska, Idaho, Kansas, Montana, Nebraska, Texas, and Utah. They noted that Chevron deference, the most cited administrative case law in history, “gives agencies wide latitude to interpret statutes aggressively and shift course dramatically when administrations change. Regulation is costly; over-regulation and mercurial regulation even more so.” The states argued: “This problem is not academic. Right or wrong, the lower courts treat Chevron as a heavy thumb on the federal government’s side of the scale. The real-world result? Agencies have all the incentives to push expansive constructions of their governing statutes. After all, if agencies—and the administrations most of them answer to—know that lower courts will almost certainly defer to a plausible interpretation, it is hard to hold the line on a more restrained view of agency power…. Even more when administrations change and the next set of officials come in to ‘undo the ambitious work of their predecessors’ by ‘proceeding in the opposite direction with equal zeal.’ Changed agency priorities are not inherently wrong, of course—and we have seen a lot of them as presidents ask federal agencies to enact ‘partisan policy agendas’ that are otherwise ‘stymied by congressional stalemate.’ But by encouraging ever-more-ambitious theories of agency power, Chevron expands the range. Now, waffling from one aggressive construction to its opposite becomes a whipsaw. That’s a bad place to be. Litigation is expensive and can take years; the countless challenges involving Chevron seem a poor investment when lower courts virtually always defer to the work of another Branch. More to the point, regulation is expensive. And when the uncertainty in the law favors over-regulation, not under, our residents and businesses pay the higher price.” | 10/10/22: Petition for Cert 12/15/22: States amicus brief 5/1/23: Petition granted for Q2 7/24/23: States amicus brief 9/15/23: Brief of Respondents 10/13/23: Case to be argued in tandem with #22-1219 10/16/23: Reply of Petitioners 1/17/24: Oral Argument 6/28/24: Decision |
| Arizona v. Navajo Nation and Department of the Interior v. Navajo Nation (consolidated cases) | #21-1484 Navajo Nation v. Department of the Interior et al., 996 F.3d 623 (9th Cir. 2021) | U.S. Supreme Court | Federal trustee affirmative duty to assess tribal water needs | On June 22, 2023, the U.S. Supreme Court issued its 5-4 decision regarding the scope of the federal trust responsibility toward tribes. The U.S. Supreme Court held that the1868 treaty contains no language imposing a duty on the United States to take affirmative steps to secure water for the Navajo Nation, and that the Court would not apply common-law trust principles to infer duties not found in the text of a treaty, statute, or regulation unless Congress has created a conventional trust relationship with a tribe with respect to a particular trust asset. BACKGROUND: The Navajo Nation filed the underlying case in 2003, which included a breach of trust claim against the federal government for failure to consider or protect the Nation's unquantified water rights in managing water projects on the Colorado River. Following a lengthy stay for settlement negotiations, the case resumed in 2013, and the Navajo Nation amended its complaint multiple times in response to decisions from the District Court and 9th Circuit about issues of sovereign immunity and standing to assert its various claims for relief. In its proposed Third Amended Complaint, the Navajo Nation sought an injunction compelling the federal government to: (1) “…determine the extent to which the Navajo Nation requires water from sources other than the Little Colorado River to enable its Reservation to serve as a permanent homeland for the Navajo Nation;” (2) “develop a plan to secure the water needed;” (3) “exercise [the government’s] authorities, including those for the management of the Colorado River, in a manner that does not interfere with [such] plan;” and (4) “analyze” the government’s “management decisions” in light of such plan and “adopt appropriate mitigation measures to offset any adverse effects” (as quoted in the DOI petition). The District Court denied the motion to file the proposed Third Amended Complaint, holding that (1) there was no treaty, statute, or regulation that imposed an enforceable trust duty on the federal government; (2) that enforceable trust duties are not inferable from implied water rights; and (3) that claims to Winters rights would have to be filed with the Supreme Court under the retained jurisdiction in Arizona v. California. The 9th Circuit reversed the decision, holding that the breach of trust claim was appropriately premised on the implied federally-reserved water rights in the Nation’s treaties with the United States, under the Winters Doctrine. The court further held that the “Nation’s [proposed Third Amended Complaint] does not seek judicial quantification of rights to the [Colorado] River, so we need not decide whether the U.S. Supreme Court’s retained jurisdiction [in Arizona v. California] is exclusive.” The 9th Circuit remanded to the District Court to allow the Navajo Nation to amend its complaint. The intervenor-defendant States of Arizona, Colorado, and Nevada, and various water districts from Arizona, California, and Nevada, appealed the decision first, presenting two questions: (1) Whether the 9th Circuit’s decision was contrary to the Supreme Court’s exclusive jurisdiction over the allocation of water in the Lower Basin of the Colorado River, as retained in Arizona v. California; and (2) Whether the Navajo Nation could assert breach of trust claims by relying on implied rights to water under the Winters Doctrine. The Department of the Interior also appealed the 9th Circuit’s decision, presenting a different question: Whether the federal government owes the Navajo Nation an affirmative, judicially-enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty. | 11/4/22: S.Ct. granted certiorari 3/20/23: Oral arguments 6/22/23: S. Ct. decision |
| West Virginia et al. v. EPA | 3:23-cv-00032 | U.S. District Court in North Dakota | 2023 WOTUS Rule (88 FR 3004) and Amended Rule (88 FR 61964) | A coalition of 24 states, led by WV and including the ten western states of AK, KS, MT, NE, ND, OK, SD, UT, and WY, requested that the rule be vacated and remanded to the agencies for violations of the Clean Water Act (CWA), the Administrative Procedures Act (APA), and the U.S. Constitution, including the Commerce Clause and the Fifth and Tenth Amendments. The States asserted that the 2023 WOTUS rule mirrors or exceeds the 2015 WOTUS Rule (enjoined by this court for likely violating the CWA grant of authority to EPA and the Corps), and that it “improperly upsets the balance of State and federal powers in an area typically dominated by the States.” Each State expressed its sovereign authority to govern, manage, and protect the waters within its borders, as cited in their respective state constitutions and statutes. For a lengthier summary of the complaint, see WSW #2546 Special Report. On April 12, 2023, the court issued a preliminary injunction staying the implementation of the 2023 Waters of the United States (WOTUS) Rule in 24 states (AK, AL, AR, FL, GA, IA, IN, KS, LA, MI, MO, MT, ND, NE, NH, OH, OK, SC, SD, TN, UT, VA, WV, and WY). The court found that the 2023 rule has unlimited boundaries and “raises a litany of other statutory and constitutional concerns.” The court noted that EPA has arguably acted beyond its statutory authority, noting problems with several categories of water, including: (1) interstate waters not connected to navigable waters; (2) impounded waters without any outlet or hydrologic connection to the tributary network; (3) an overly broad definition of tributary that includes dry waterways; (4) non-navigable intrastate waters previously considered isolated and not subject to CWA jurisdiction; and (5) a treatment of wetlands that is “plagued with uncertainty” and extends jurisdiction to remote wetlands that the U.S. Supreme Court has already excluded. For a lengthier summary of the preliminary injunction, see WSW # 2552 Special Report. | 2/16/23: Lawsuit filed 4/12/23: Preliminary injuction (24 states) 7/18//23: Case stayed 9/1/23: Status report from Corps & EPA re: amended WOTUS rule issued 10/10/23: Stay lifted 11/13/23: Amended Complaint 12/12/23: Industry Motion to Intervene granted (Ag, Mining, Construction, etc) 12/13/23: Answers filed 2/26/24: States and Industry MSJs filed 4/26/24: EPA, Corps MSJ filed 6/25/24: various responses filed to MSJs 7/26/24: EPA, Corps filed reply 7/30/24: Federal defendants filed supplemental authority: Kentucky v. EPA (6th Circuit remand to allow amended complaints rather than sua sponte dismissal, #23-5343 and #23-5345) 2/18/25: Court stayed the case 8/25/25: next status report due 10/21/25 6529/26: Status report (reviwing the 200,000 comments from the Nov 20, 2025 proposed rule), stay extended for 60 days |
| Texas et al. v. EPA et al. | 3:23-cv-00017 | U.S. District Court for the Southern District of Texas | 2023 WOTUS Rule (88 FR 3004) and Amended Rule (88 FR 61964) | The complaint requested that the 2023 WOTUS rule be vacated for violations of the Constitution, the CWA, and the APA. Texas alleged: “The Final Rule harms Plaintiffs by: (1) expanding federal regulation beyond that authorized in the CWA; (2) eroding the states’ authorities over their own waters; (3) increasing the states’ burdens and diminishing the states’ abilities to administer their own programs; and (4) undermining the states’ sovereignty to regulate their internal affairs as guaranteed by the Constitution.” Texas asserted that the CWA “only authorizes the Federal Agencies to regulate ‘navigable waters,’ defined as ‘waters of the United States’” and the new rule is a violation of the CWA and APA for asserting jurisdiction over lands and waters that fall outside the CWA and effectively removing any requirement of navigability. For a lengthier summary of the complaint, see WSW #2546 Special Report. On March 19, 2023, the court issued a preliminary injunction preventing the 2023 WOTUS Rule from taking effect in the States of Texas and Idaho. “[T]wo aspects of the 2023 Rule make the plaintiffs particularly likely to succeed on the merits – first, the Rule's significant-nexus test, and second, the Rule's categorical extension of federal jurisdiction over all interstate waters, regardless of navigability.” The court found that Chevron deference does not apply due to the criminal penalties in the rule, and due to the significant constitutional and federalism questions raised by the agencies’ interpretation of the CWA. The court held that the states had standing to challenge the rule to protect their quasi-sovereign interests in regulating their land and water. For a lengthier summary of the preliminary injunction, see WSW # 2549. In August 2023, the EPA announced amendments in response to the Supreme Court decision in Sackett v. EPA. In turn, Texas and Idaho amended their complaint to include the changes. On February 2, 2024, the plaintiffs filed an MSJ. They argued that the Amended 2023 Rule (88 FR 61964) is unconstitutionally vague in its definitions of “every jurisdictional category,” including its definitions of Traditional Waters, Impoundments, Tributaries, Wetlands, and Other Jurisdictional State Waters. Additionally, the Relatively Permanent Standard is broader and vaguer than the standard described in Sackett and Rapanos. Plaintiffs also argued that the Amended 2023 Rule exceeds the CWA, is contrary to the States’ sovereignty, violates due process afforded by the Constitution, and was adopted through unlawful procedure under ADA. They conclude: “It cannot be supported by the plain language of the Clean Water Act, it is inconsistent with Supreme Court precedent, it cannot be justified as a valid exercise of congressional authority under the Commerce Clause, it cannot be excused in the face of the Tenth Amendment, and it infringes on the due process rights afforded under the Fifth Amendment. And even if it were not substantially unlawful, it was adopted through unlawful procedure.” See WSW #2596 | 1/18/23: Lawsuit filed 2/27/23: Idaho joined 3/19/23: Preliminary injunction (TX & ID only) 7/10/23: Case stayed 9/1/23: Status report from Corps & EPA re: amended WOTUS rule issued 2/2/24: Plaintiffs filed MSJ 4/2/24: EPA, Corps MSJ and opposition to Plaintiff's MSJ 6/17/24: TX and ID Reply 7/30/24: Federal defendants filed supplemental authority: Kentucky v. EPA (6th Circuit remand to allow amended complaints rather than sua sponte dismissal, #23-5343 and #23-5345) 2/4/25: Case stayed, status reports due every 60 days 4/7/25: EPA/Corps Status Report, noting the new guidance and the regulatory docket soliciting input to further clarify the WOTUS definitions, which may resolve the litigation or narrow the existing dispute 6/1/26: Status report (reviwing the 200,000 comments from the Nov 20, 2025 proposed rule), stay extended for 60 days |
| Yurok Tribe, et al. v. Bureau of Reclamation et al. | #19-cv-04405 | U.S. District Court for the Northern District of California | ESA preemption of state water law | On February 6, 2023, the court issued a ruling on several summary judgment motions regarding the limited water supply of the Klamath River and the competing interests of the people and wildlife who depend on it. The court determined that the purpose and objectives of the Endangered Species Act (ESA) preempt state water law in Reclamation’s operation of the Klamath Project, notwithstanding Section 8 of the Reclamation Act (43 U.S.C. § 383). BACKGROUND: In 2014, the Oregon Department of Water Resources (ODWR) issued a provisional determination in the Klamath Basin Adjudication that the Bureau of Reclamation (Reclamation) owned a right to store 486,828 acre-feet of water in the Upper Klamath Lake to benefit irrigators. ODWR further determined that Reclamation and the beneficial users (irrigators) co-owned another water right to divert both natural flow from the Upper Klamath Lake and the water stored there for beneficial use. In the severe drought conditions of 2020, Reclamation did not fully allocate Klamath Project water to irrigators, but released water from the Upper Klamath Lake in an effort to comply with the ESA. Following a notice of dispute from an irrigation direction, OWRD issued an order prohibiting the use of the stored water for any purpose other than fulfilling state water rights. Reclamation notified OWRD in 2021 that water was unavailable for irrigation purposes, and separately that the ESA may require releases of water from storage. See WSW #2543 Special Report for a further summary description of the decision. | 2019: case filed re: biological opinion 2/6/23: MSJs ruling re: ESA and water supply |
| Indian Wells Valley Water District v. All Persons Who Claim a Right to Extract Groundwater in the Indian Wells Valley Groundwater Basin, etc., et al. | 30-2021-01187275-CU-OR-CJC | Orange County Superior Court, California | Water rights adjudication (groundwater), SGMA 2014, federal water rights and groundwater | On July 28, 2025, the Orange County, California Superior Court issued a proposed Statement of Decision in Phase 1 of the groundwater adjudication. The court quantified the U.S. Navy’s federal reserved water right for Naval Air Weapons Station – China Lake at 2,008 acre-feet per year (AFY), with a priority date of 1947. China Lake is the Navy’s largest land holding in the world, is located in the Mojave Desert, and the only source of potable water available for the military base is groundwater. The court declined to set the reserved water right priority date on the basis of a 1943 order from the Secretary of the Navy to establish the base. Although there were several steps taken toward purchasing land and withdrawing it from public use beginning in 1943, the court held that the formal Public Land Order 431 published in the Federal Register in 1947 was the date of the reservation from the public domain, and therefore established the priority date of the reserved water right. The court distinguished non-tribal reserved rights from cases involving Indian reservations, where courts look at treaties, executive orders, and statutes, and give a liberal interpretation favorable to the tribes. The court was careful to distinguish between reserved water rights that serve the primary purpose of the reservation, and water for secondary purposes that the Navy can obtain through the state like any other water right user. “All of the key historical documents point to the development and testing of weapons as the primary purpose of China Lake.” The court rejected 20 AFY for off-base management of burros and horses as part of an agreement with BLM, as well as 200 AFY for endangered Tui Chub in the lake, as those are secondary purposes. The court also excluded treated wastewater obtained by agreement from the nearby town. While the court agreed that water for on-base housing could be encompassed by the reserved water right, off-base housing that is located off the reservation land was excluded. Notably, when determining the quantity of water needed to fulfill the primary purposes, the court looked at the full history of China Lake’s water use since the date of the reservation, the reasonably anticipated future uses, long-term versus temporary uses, and its water conservation efforts since 1989. “[T]he time frame in which the reserved water right is adjudicated is critical. Thus, if quantification of China Lake’s reserved right was determined in the 1940s during World War II, then that right likely would have taken into account the ongoing war effort, the need for new weapons, the ever-increasing size of the base and the lack of a viable off-base housing alternative…. Any determination at that time could not have contemplated base closings and consolidations that happened many decades later, nor could it account for the many water-conservation methods that have developed over the years. Likewise, if the reserved water right had been adjudicated in 1969 at the height of the Vietnam War, then the water use (nearly 8,000 AFY) the base’s total population (nearly 20,000) and the available on-base housing (3,800+ residences/dorm spaces) undoubtably would have dictated a different result from today. However, because this proceeding is occurring 50+ years after Vietnam and 80+ years after World War II, the previous historical use is of little value given the many significant changes that have occurred since those wars ended. In short, in determining China Lake’s reserved water right, the Court starts with current water usage as a baseline, taking into account fluctuations that have occurred in the relevant past. And while the Court agrees that potential future expansion of China Lake’s mission should be taken into account in calculating that water right, that expansion must meet the ‘reasonably probably to occur’ criterion.” Various parties filed objections to the proposed decision. BACKGROUND: The original complaint was filed by Mojave Pistachios, LLC. The cross-complaint by the Indian Wells Valley Water District (IWVWD) seeks “a judgment to comprehensively determine and adjudicate all groundwater rights in the Basin and to provide a physical solution for the perpetual and continuous management of the Basin.” IWVWD’s website noted that water use in the basin has exceeded groundwater supply for years, resulting in an “overdraft” condition. IWVWD is a member of the Indian Wells Valley Groundwater Authority, formed pursuant to the Sustainable Groundwater Management Act (SGMA). The Authority developed and adopted a groundwater sustainability plan (GSP), and several lawsuits were filed alleging that the GSP actions to regulate water use and impose fees were unlawful and excessive, leading in part to the present adjudication. During a joint case management conference, one of the jurisdictional issues raised was whether the de minimus water users, and any overlying non-users, needed to be included in the proceeding in order for the Court to have jurisdiction over the United States as part of a comprehensive adjudication, both to ensure the US participation and to protect the due process rights of these others. On June 11 and 21,2024, the adjudication was separated into several phases. Phase 1 will address the federal government's reserved water rights claims to groundwater. Phase 2 will adjudicate the safe yeild and groundwater in storage. Phase 3 will determine the water rights claims of all other parties. Phase 4 will determine a physical solution. | 6/16/21: IWVWD Cross-complaint, opening the adjudication 9/7/21: California Department of Water Resources received notice of the adjudication 10/13/21: form of Notice of Commencement of Groundwater Basin Adjudication approved 12/16/21: Notices mailed to basin property owners 3/17/23: Case Management Conference 9/1/23: Status Conference (awaiting judicial assignment from the Judicial Council, followed by briefing on Court's authority to determine safe yield and impose a physical solution, as well as the issue of including de minimis users and McCarran jurisdiction) 2/23/24: IIWVWD Motion for order to divide the trial into phases, establish the basin boundary, set the phase 1 trial, and partially lift the discovery stay 8/8/24: Order granting the motion to schedule the phase 2 trial (safe yeild) at the next status conference (10/2/24); interesting discussion on the intersection of SGMA, GSPs, and adjudications under the Streamlined Act (2015) 4/28/2025: Phase 1 Trial on federal reserved water right claim scheduled 7/28/25: Proposed Statement of Decision on Phase 1 trial 9/15/25: Final Statement of Decisions on Phase 1 trial (China Lake 2008 AFY, 1947 reserved right priority date) 6/8/26: Phase 2 Trial (Safe Yield) |
| Pape Partners, Ltd. et al. v. DRR Family Properties, LP, et al. | 21-0049 | Texas Supreme Court | State agency role in private water right disputes | The Texas Supreme Court held that TCEQ lacks jurisdiction to decide conflicting claims of ownership to surface water rights, and reversed the court of appeals, remanding to the trial court for further proceedings. BACKGROUND: The petitioners filed suit in the state district court for a determination of private property interests in water rights acquired with the purchase of a farm. The respondant moved to dismiss for lack of subject matter jurisdiction, arguing that TCEQ had exclusive jurisdiction to adjudicate the ownership of water rights among private parties. The district court granted the motion, and the court of appeals affirmed, concluding that the Texas Water Code for regulating and permitting water usage evinced the legislature's intent to grant TCEQ exclusive jurisdiction. The decision was appealed to the Texas Supreme Court. TCEQ filed an amicus brief arguing that the district court had proper jursidiction of the case, and that Texas statutes do not provide TCEQ with a mechanism to determine such disputes. “Surface water in Texas is owned by the State and held in trust for Texas citizens. Through a system of water rights prioritization, the State grants the right to use water to individuals or entities such as ranchers, farmers, cities, or industries. [TCEQ] has an important role to play in issuing and recording those grants. However, [TCEQ’s] authority does not extend to adjudicating private disputes simply because they involve water rights. Once a water permit is issued and vested in the holder, it can be bought and sold like any other property. And, like any disagreement about the ownership of property, a dispute about who owns the water rights is properly adjudicated in court.” TCEQ provided an overview of a complex history, beginning with the 1917 Irrigation Act, between the Texas courts and legislature regarding water rights adjudication, jurisdiction, and the separation of powers. | 5/20/22: TX S.Ct. Decision |
| Oklahoma v. Interior | 5:21-cv-00719 | U.S. District Court for Western Oklahoma | State-Tribal jurisdiction over natural resources | Following the decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the Department of the Interior and its Office of Surface Mining and Enforcement informed Oklahoma that it could no longer regulate surface mining on the Muscogee Creek Nation’s reservation in eastern Oklahoma. Oklahoma sued, arguing that McGirt was limited to federal criminal jurisdiction. On December 22, the Court denied Oklahoma’s motion for a preliminary injunction. The motion sought to enjoin enforcement of the decision to strip Oklahoma of its delegated regulatory authority under the Surface Mining Control and Reclamation Act (SMCRA), 30 USC §§1201 et seq. The Court concluded that Oklahoma was unlikely to succeed on its claims under the Administrative Procedures Act, equitable defenses based on a century of jurisdictional expectations, or the language of the SMCRA. | |
| Sackett v. EPA | 21-454 (19-35469) | U.S. Supreme Court (9th Circuit) | WOTUS, wetlands | On May 25, 2023, the U.S. Supreme Court reversed the decision of the 9th Circuit and remanded the case for further proceedings consistent with its decision. The Court found that the wetlands on the Sacketts' property are not “waters of the United States” (WOTUS), because they are “distinguishable from any possibly covered waters.” Citing the Justice Scalia plurality opinion in Rapanos, the five-Justice majority Court concluded that the definition of WOTUS in Clean Water Act (CWA) §1362(7) “encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” The Court held that WOTUS does not apply to all wetlands, but extends only to those wetlands with a continuous surface connection to bodies of water that are WOTUS in their own right, so that they are indistinguishable from those waters. The Court acknowledged that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” In footnote 16, the Court said: “Although a barrier separating a wetland from a water of the United States would ordinarily remove a wetland from federal jurisdiction, a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA. Whenever the EPA can exercise its statutory authority to order a barrier’s removal because it violates the Act…that unlawful barrier poses no bar to its jurisdiction.” The Court noted that EPA’s interpretation of adjacent wetlands in the 2023 WOTUS Rule—including wetlands with a significant nexus to traditional navigable waters—is inconsistent with the text and structure of the CWA. The Court required Congress to “enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property. Regulation of land and water use lies at the core of traditional state authority. An overly broad interpretation of the CWA’s reach would impinge on this authority.” The court also pointed to CWA §1251(b), which expressly protects the primary responsibilities of States to prevent, reduce, and eliminate pollution and to plan the development and use of land and water resources. “It is hard to see how the States’ role in regulating water resources would remain ‘primary’ if the EPA had jurisdiction over anything defined by the presence of water.” The Court held that the CWA does not define EPA’s jurisdiction based on ecological importance, and it anticipates a partnership between the States and the Federal Government. “States can and will continue to exercise their primary authority to combat water pollution by regulating land and water use.” The Court further noted that EPA’s significant nexus interpretation “gives rise to serious vagueness concerns in light of the CWA’s criminal penalties. Due process requires Congress to define penal statutes with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” The Court expressed concerns that the CWA could sweep broadly enough to “criminalize mundane activities like moving dirt” and put a “staggering array of landowners” at risk of criminal prosecution or onerous civil penalties, because a property that appears to be dry may later be determined to be subject to the CWA under guidance in a complicated agency manual. | 9/22/21: Petition for writ of cert 10/21/21: Amicus briefs, including states 11/24/21: EPA brief 1/24/22: S.Ct. granted cert 4/11/22: Petitioner brief on merits 4/18/22: Amicus Brief 26 States (including AZ, ID, KS, MT, NE, ND, OK, SD, TX, UT, WY); separate Amicus Brief AK 6/10/22: Respondent EPA brief on merits 6/17/22: Amicus Brief CO; separate Amicus Brief by 17 states (including CA, NM, OR, WA) 10/3/22: S. Ct. argument 5/25/23: S. Ct. decision |
| Pasqua Yaqui Tribe, et al., v. EPA et al | 20-cv-00266 | U.S. District Court for Arizona | WOTUS | On August 30, 2021 the Arizona U.S. District Court vacated the 2020 Navigable Waters Protection Rule and remanded the rule to the EPA and Corps. The EPA and the Corps requested voluntary remand consistent with Executive Order 13990, which directed the agencies to review recent regulations to ensure they are consistent with the new Administration’s policies. “Courts generally grant a voluntarily requested remand unless ‘the agency’s request is frivolous or made in bad faith.’ Here, there is no indication in the record that the Agency Defendants’ request for voluntary remand is frivolous or made in bad faith.” While the agencies did not request vacatur of the 2020 rule, the plaintiffs argued that the remand must “include the usual remedy of vacatur to prevent significant, irreversible harms.” The court weighed the seriousness of the possible environmental harm and the consequences of an interim return to the pre-2015 regulatory regime, and determined that remand with vacatur was the appropriate remedy. | 8/30/22: NWPR vacated and remanded |
| Center for Biological Diversity et al. v. Spellmon | 4:21-cv-00047 1:22-cv-02586 | U.S. District Court for Montana U.S. Distirct Court for the District of Columbia | Nationwide Permits, ESA | The complaint for declatory and injunctive relief stems from the Corps issuance of Nationwide Permit 12, a general permit for oil and gas pipeline projects purusant to CWA 404(e). The lawsuit alleges ESA and APA violations for failure to assess environmental effects, and to fulfill consultation responsibilities under ESA section 7 with the National Marine Fisheries Service and the FWS. The NWP 12 allows oil and gas pipelines to cross water repeatedly without limits to the number of wetlands a project might impact, ignoring the cumulative effects of large interstate pipelines. On August 18, 2022, the federal court in Montana determined that it was not the appropriate venue for the ESA claims, as the events giving rise to the claims did not occur in Montana, and the sole Montana plaintiff could not show Article III standing on the ESA claims. The case was trasferred to the District of Columbia for further proceedings. The federal defendants withdrew their request for court deference to the agency following Loper v. Raimundo, but argued that no deference was needed to uphold the agency action. Additionally, Loper held that courts could consider an agency's long-standing interpretation of a statute. "The Corps’ issuance of NWP 12 reflects the best reading of CWA Section 404(e)’s minimal effects threshold because for linear pipeline projects, what 'constitutes separate and distant crossings can vary across the country because of differences in the distribution of waters and wetlands in the landscape, local hydrologic conditions, local geologic conditions, and other factors.' Thus, allowing Corps districts to determine when crossings are sufficiently 'separate and distant' from one another on a case-by-case basis, rather than establishing national thresholds, is the best reading of the statute." The Corps argued that this interpretation has been in place for 33 years. On April 17, 2026, the Court agreed with the Corps that the most efficient course would be for the plaintiffs to file a new civil action seeking review of the relevant new permit, recently issued and effective as of March 15, 2026. The plaintiffs filed a motion to voluntarily dismiss the case. | 5/3/21: Lawsuit filed 6/7/21: Montana intervened 8/31/21: Petroleum associations intervened 9/7/21: Answer from the Corps 6/9/22: Hearing on MSJs ("order will be submittted forthwith") 8/18/22: Case transferred to District of Columbia 11/18/22: Supplemental Briefing on schedule submitted by the parties to the DC court 9/2023: Supplemental authorities filed 7/15/24: Supplemental authority: Loper Bright Enterprises v. Raimondo 8/27/24: Corps response to Loper 11/8/24: Corps response to other supplemental authority 6/20/25: Supplemental authority: Seven County Infrastructure Coalition v. Eagle County 3/17/26: Corps notice of mootness 4/23/26: Joint motion for voluntary dismissal |
| FWS v. Sierra Club | 19-547 | U.S. Supreme Court | FOIA, draft Biological Opinions | On March 4, 2021, the U.S. Supreme Court held that pre-decisional, internal draft biological opinions and interagency memoranda are protected from disclosure under FOIA exemption 5. The Supreme Court reversed and remanded a 9th Circuit decision that previously held that the draft biological opinions were not privileged. The issue surrounds interagency communications following a 2011 EPA rule on industrial cooling water intake structures (76 FR 22174) that triggered ESA consultation requirements with FWS. The Sierra Club submitted FOIA requests for records related to those consultations, which spanned several years and resulted in a modified EPA rule, and a biological opinion that shifted from “jeopardy” to “no jeopardy” regarding the impact on endangered species. The FWS withheld the draft biological opinion on one of the previous versions of EPA’s proposed rule, labeling it as nonfinal and protected by the deliberative process exemption. The Court said: "It is true that a draft document will typically be predecisional because, as we said earlier, calling something a draft communicates that it is not yet final. But determining whether an agency's position is final for purposes of the deliberative process privilege is a functional rather than formal inquiry. If the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply. The [FWS], however, did not engage in such a charade here." | |
| Audubon of Kansas v. DOI et al | 2:21cv02025 | U.S. District Court for Kansas | FWS Reserved Water Rights | The case was dismissed in October 2021. The Court found that the state defendants were entitled to immunity under the Eleventh Amendment, as the plaintiff had not demonstrated a violation of federal law. KDA-DWR was not a party to the 2020 memorandum of agreement (MOA) between the FWS and the local water district, and the allegations of KDA-DWR inaction were not supported by the complaint. “As State Defendants point out, the Chief Engineer of KDA-DWR is required to initiate an investigation upon a complaint that a water right is impaired. Audubon acknowledges that this occurred, and the Impairment Report was issued. But at that point, further action under state law is only required if there is a request to secure water. The [FWS] did make some requests initially. But the most recent one was withdrawn, and the [FWS] has opted not to make further requests to secure water owing to the 2020 MOA. Without a request to secure water, State Defendants have nothing to act on. Thus, there is no current obligation of State Defendants to act under state law.” The claims against the federal defendants of both action and inaction under the Administrative Procedure Act (APA) were also dismissed. The Court held that the 2020 MOA was not a final agency action, nor was it a “major federal action,” under NEPA. “The Tenth Circuit has held that this type of ‘general agreement for state and federal agencies to work together in the future on specific projects…is not final agency action.’” The Court added that under the plaintiff’s logic, every day of an ongoing decision-making process would become a final agency action. “It’s clear that Audubon passionately disagrees with the path chosen by the [FWS] in this case to address the Refuge Water Right. But the APA does not provide private parties with general oversight of federal agency decision-making.” Audubon also claimed that the FWS violated the APA when it failed to protect and secure water rights for the refuge. The Court noted that none of the federal statutes cited include a specific mandate requiring the FWS to carry out specific actions to meet the refuge goals. Audubon further alleged the improper disposal of property, a portion of the Quivera Refuge’s water right, without the approval of Congress. “The Court notes that the complaint is silent as to what precise cause of action is asserted on this point, what legal basis Audubon has to sue the [FWS] (or anyone) for this action, or what standing Audubon has to challenge the alleged wrongful disposition of federal property.” The federal defendants argued that they continue to hold the water right. Audubon argued that the FWS surrendered its priority to use the water under its water right. The Court construed this as an APA claim as well, and dismissed it for the same reason, that it was not a final agency action. The complaint was dismissed without prejudice. BACKGROUND: The Audubon of Kansas (AOK) sued the U.S. Department of the Interior (DOI), the U.S. Fish and Wildlife Service (FWS), the Kansas Department of Agriculture (KDA), and the Chief Engineer of the KDA Department of Water Resources (DWR), over water resources for the Quivira National Wildlife Refuge (QNWR). The FWS holds a 1957 priority water right to protect the wetlands at the refuge, but groundwater pumping by neighboring junior water users has impacted the water levels at the refuge. The FWS spent decades working with Kansas trying to resolve its water right impairment concerns before filing a formal complaint with KDA-DWR in 2013. The DWR’s investigation found that the QNWR’s water rights were impaired by groundwater pumping. The Big Bend Groundwater Management District No. 5 (GMD5) sought to reduce water use and address declining streamflows through a Local Enhanced Management Area (LEMA) plan, but it was rejected as inadequate. In 2019 DWR prepared to reduce the water use of the junior water rights. Senator Jerry Moran (R-KS) and then-Representative Roger Marshall (R-KS) brokered an agreement between the FWS, KDA, and GMD5 to postpone administration of water rights to allow more time to seek a remedy to the impairment. AOK alleged violations of the National Wildlife Refuge System Improvement Act, the Administrative Procedures Act, the Endangered Species Act, and the National Environmental Policy Act. AOK asserted that the FWS must obtain water supplies through the federal reserved water rights doctrine with a 1955 priority date that coincides with the creation of the QNWR, plus additional state-law water rights to ensure adequate water supplies for the QNWR. AOK sought orders requiring FWS to obtain court injunctions that require the long-term curtailment of junior groundwater rights, and to request “the full administration of all water rights in the Rattlesnake Creek sub-basin that have impaired and are impairing the Refuge Water Right....” In their motion to dismiss, the federal defendants argued that the plaintiff has misinterpreted the relevant statutory mandates and that the federal agencies have discretion. Both state and federal defendants also raised sovereign immunity issues. | 1/15/21: Lawsuit filed 3/9/21: GMD5 Motion to Intervene 4/12/21: Motions to Dismiss by Kansas Dept. Agriculture/Division of Water Resources and by Department of the Interior/FWS 4/28/21: Answer by GMD5 5/17/21: Plaintiff response to MTDs due 6/18/21: Discovery stayed pending MTD outcome 10/20/22: MTDs granted |
| McGirt v. Oklahoma | 18-9526 | U.S. Supreme Court | Tribal land, state jursidiction | Enhanced Management Area (LEMA) plan, but it was rejected as inadequate. In 2019 DWR prepared to reduce the water use of the junior water rights. Senator Jerry Moran (R-KS) and then-Representative Roger Marshall (R-KS) brokered an agreement between the FWS, KDA, and GMD5 to postpone administration of water rights to allow more time to seek a remedy to the impairment. AOK alleged violations of the National Wildlife Refuge System Improvement Act, the Administrative Procedures Act, the Endangered Species Act, and the National Environmental Policy Act. AOK asserted that the FWS must obtain water supplies through the federal reserved water rights doctrine with a 1955 priority date that coincides with the creation of the QNWR, plus additional state-law water rights to ensure adequate water supplies for the QNWR. AOK sought orders requiring FWS to obtain court injunctions that require the long-term curtailment of junior groundwater rights, and to request “the full administration of all water rights in the Rattlesnake Creek sub-basin that have impaired and are impairing the Refuge Water Right....” | 7/9/20: Ruling issued |
| In re: Clean Water Rulemaking Consolidated cases: American Rivers et al. v EPA (#20-cv-04636); California et al. v. EPA (#20-cv-04869); Suquamish Tribe v. EPA (#20-cv-06137) | 3:20-cv-04636 | U.S. District Court for Northern California | 401 Certification | Twenty states, including California, Colorado, Nevada, New Mexico, Oregon and Washington, filed a complaint for declaratory and injunctive relief, challenging the CWA §401 Certification Rule. The complaint alleged APA deficiencies and argued that the new rule “upends fifty years of cooperative federalism by arbitrarily re-writing EPA’s existing water quality certification regulations to unlawfully curtail state authority under the [CWA].” Eight states intervened as defendants, including Montana, Texas, and Wyoming. The court vacated the rule and remanded it back to EPA, providing analysis of the deficiencies of the rule and weighing that against the disruption of vacatur. The court noted the concerns with cooperative federalism, the primary responsibilities of the states under CWA §101(b) and the changed scope of certification after fifty years of precedent. The court cited PUD No. 1, 511 U.S. 700 (1994) regarding state certifications and the authority to impose conditions and limitations on activities once the threshold condition of a discharge is satisfied. "The revised scope of certification that EPA promulgated takes an antithetical position to PUD No. 1 without reasonably explaining the change." The court acknowledged the intervenor-defendants’ arguments that certifying authorities overreached under the old rule, leading to negative economic effects, particularly with regard to energy projects. But when considering whether to vacate an EPA rule, where the CWA has the express goal to restore and maintain the chemical, physical, and biological integrity of the nation’s waters, the court found that the potential environmental effects outweighed the potential economic consequences. | California et al. v. EPA 7/21/20: Lawsuit filed 9/30/20: Answer by intervenor states 10/6/20: Answer by EPA 10/19/20: Answer by intervenor petroleum organizations 10/23/20: Case scheduling order--consolidating cases In re Clean Water Act Rulemaking 11/24/20: Schedule for completing administrative record 6/7/21: Joint Motion to stay case until 6/18/21 granted 7/1/21: EPA Motion to Remand without vacatur 9/30/21: hearing scheduled for motion to remand 10/20/21: Court vacated and remanded the rule |
| Arizona v International Boundary and Water Commission et al. | 2012-008715 | Maricopa County Superior Court | Water quality, wastewater | In 2012, Arizona DEQ filed suit against USIBWC over Clean Water Act (CWA) violations. ADEQ alleged that USIBWC failed “to implement a program to keep industrial waste from entering domestic sewage, which resulted in illegal levels of cadmium, cyanide, and ammonia nitrogen entering Arizona.” (ADEQ Press Release, 5/25/2012). The recent settlement addresses the CWA compliance issues and provides a comprehensive plan to mitigate future discharges of untreated wastewater into the Nogales Wash and Santa Cruz River, including upgrades to the aging wastewater conveyance pipeline, known as the International Outfall Interceptor (IOI), between the U.S.-Mexico border and the Nogales International Wastewater Treatment Plant (NIWTP). It also contains provisions for improving protections for the IOI from stormwater and debris damage. The settlement includes funding of $38.8M from federal, state and local sources, including USIBWC, the State of Arizona and ADEQ, EPA, and the Freeport McMoRan Foundation. | 6/30/20: Settlement agreement signed |
| Wild Virginia et al. v. CEQ et al. | 3:20-cv-00045 #21-1839 | US District Court for the Western District of Virginia 4th Circuit Court of Appeals | NEPA Rule | On December 22, 2022, the 4th Circuit affirmed the lower court decision, primarily on the basis that the claims are not ripe. The court reviewed the plaintiffs' 53 declarations of members regarding the anticipated future injury and separated their alleged injuries from the 2020 rule into four categories: (1) problems with NEPA analyses and proper consideration of alternatives, (2) obstacles to commenting on NEPA analyses or otherwise effectively participate in agency decisionmaking, (3) increased difficulties in obtaining information about proposed federal actions, and (4) elimination of some categories of actions from NEPA review altogether. While the plaintiffs expressed concerns that the 2022 rule did not completely resolve the potential for these injuries, those injuries are contingent upon a decision by a third party that has not yet acted; the agencies have not demonstrated some imminent likelihood of taking action yet. The court did not forclose the possiblity that plaintiffs could bring future claims that could arise under implementation of the 2020 rule. "Plaintiffs argue that forcing them to litigate their claims one project at a time will be time- and resource-intensive, for them and for the courts. Certainly, it would be more efficient for the parties and the courts if we could adjudicate the 2020 Rule in one preemptive fell swoop. But such efficiency concerns cannot generate jurisdiction." BACKGROUND: The orginal complaint equested that the court vacate the 2020 NEPA regulation issued by the Council on Environmental Quality for various violations of the Administrative Procedures Act and reinstate the 1978 NEPA regulations. In January 2021, President Biden issued an EO to reconsider the 2020 Rule. The court dismissed after finding that the plaintiffs claims were not justiciable, whether the claims are unripe (lack of concrete harm) or the plaintiffs lack standing to bring their claims. Environmental groups filed a notice of appeal. In April 2022, CEQ issued a revised rule (Phase 1 rulemaking) (87 FR 23453), with the intent to publish more comprehensive revisions in its Phase 2 rulemaking in January 2023. The 2022 rule made three primary changes to the 2020 rule: (1) removal of the ceiling provisions, allowing federal agencies to adopt NEPA procedures that require more specific analysis; (2) revision of the purpose and need statement in an EIS and a conforming edit to the definition of "reasonable alternatives"; and (3) revision of the definition of "effects" to include direct, indirect, and cumulative effects. | 7/29/20: Complaint filed 9/11/20: Motion for Preliminary Injunction denied 9/21/20: Motions to Dismiss for lack of jurisdiction denied 10/22/20: Administrative record lodged 11/19/20: Motion for Summary Judgment filed by environmental plantiffs 12/21/20: Cross Motions for Summary Judgment filed by CEQ and intervenor industry (farm, cattle, oil, transportation, commerce) defendants 3/17/21: CEQ Motion to Remand the rule 4/21/21: Hearing on MSJs and Motion to Remand 6/21/21: case dismissed without prejudice 7/30/21: Notice of Appeal (#21-1839) 2/18/22: Briefs, Responses, Replies filed in the Appeal 10/26/22: Oral argument scheduled 12/22/22: 4th Circuit decision: affirmed |
| in Stanford Vina Ranch Irrigation Company v. California | C085762 | California Court of Appeal for Third Appellate District Court in Sacramento | Curtailments | The irrigation company sued the SWRCB for issuing temporary emergency regulations in 2014 and 2015 during drought, and for curtailing water use to protect threatened species of fish. The Court of Appeals affirmed the Superior Court’s holding that the SWRCB “possesses broad authority to regulate unreasonable use of water in this state by various means, including the adoption of regulations establishing minimum flow requirements protecting the migration of threatened fish species during drought conditions and declaring diversions of water unreasonable where such diversions would threaten to cause the flow of water in the creeks in question to drop below required levels.” The court held that the irrigation company, which held substantial riparian rights to the tributary, “possessed no fundamental vested right to an unreasonable use of water…” and rejected the assertion that the curtailment was a taking that required just compensation. | 6/18/20: Ruling issued |
| Colorado v. EPA et al. | 1:20-cv-01461 Appeals:Consolidated (20-01238, 20-01262, 20-01263) | U.S. District Court for Colorado 10th Circuit | WOTUS | Colorado challenged the 2020 Navigable Waters Protection Rule under APA and NEPA. Although Colorado defines its "waters of the state" more broadly than WOTUS and prohibits discharge of pollutants into state waters, Colorado does not have a state equivalent of a 404 discharge permit program. Establishing its own permitting program for fill activities to address the sudden decrease in federal jurisdiction under the 2020 Rule would require that the State of Colorado amend the Colorado Water Quality Control Act, promulgate new regulations, and appropriate millions of dollars for new permitting and mitigation programs – the outcomes of which are far from certain and would likely take years to complete. Until Colorado does this, fill activities cannot occur in waters that are not subject to federal jurisdiction. The narrowed definition of waterbodies subject to federal Clean Water Act jurisdiction creates a ‘404 permitting gap’ where certain development and infrastructure activities will not be able to take place.” This could have enormous negative consequences on Colorado’s infrastructure, economy, businesses, and local governments. The court reluctantly granted a preliminary injunction, staying the effective date of the 2020 Rule in Colorado. The court noted that "Rapanos arguably foresloses every formulation" of WOTUS proposed so far. The 10th Circuit reversed and remanded. The appeals court held that the district court abused its discretion in granting Colorado a preliminary injunction enjoining the federal agencies from implementing the Navigable Waters Protection Rule (NWPR) where Colorado had not shown irreparable injury. Specifically, a state agency official's declaration did not specify when Colorado would have needed to take enforcement action in place of the federal government, but merely raised, at most, the mere possibility of the potential for a small increase in Colorado's enforcement burden at some point in the future. Moreover, the economic harm stemming from Colorado's inability to authorize the discharge of dredged or fill material into disputed waters was self-inflicted, and there was too tenuous a causal link between the allegations of environmental harm and the jurisdictional changes made by the NWPR. (Colorado v. EPA, 989 F.3d 874) On remand, the parties and district court agreed to hold the case in abeyance until the agencies issue a new final rule regarding the definition of "waters of the United States" within the meaning of the Clean Water Act, 33 U.S.C. § 1362(7), or a determination by the Agencies that they will no longer proceed with the pending rulemaking. | 3/22/20: Lawsuit filed 6/1/20: Motion for Preliminary Injunction 6/19/20: Preliminary Injuntion granted (CO only) 6/23/20: EPA/Corps appeal to 10th Cir. re: preliminary injunction 7/15/20: Motions to intervene granted (Sacketts, Business defendants) (they also subsequently appealed the preliminary injunction order) 7/20/20: Amended complaint against all defendents 8/3/20: Answers to amended complaint filed 8/6/20: Scheduling order - pending Appeal decision 9/2/20: Administrative record filed 4/21/21: Stay granted through 6/14/21 6/9/21: Colorado request for further stay, in light of EPA/Corps announcment of filing motions for remand and engaging in a new WOTUS rulemaking 7/14/21: EPA/Corps motion to hold in abeyance granted, case administratively closed 1/18/22: Case held in abeyance and remains administratively closed until new WOTUS rule is final. Appeal 11/18/20: hearing on consolidated appeals 2/2/21: Motion to Stay (re EO 13990, 86 FR 7037) 3/2/21: 10th Cir. reversed/vacated injunction and remanded, 989 F.3d 874 |
| Cailfornia et al. v. Wheeler et al. | 3:20-cv-3005 | U.S. District Court for the Northern District of California | WOTUS | CA, NM, OR and WA, with 13 other states, challenged the 2020 Navigable Waters Protection Rule on APA grounds. “The 2020 Rule discards the ‘significant nexus’ standard for [WOTUS] set forth in Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006) and endorsed by a majority of the Justices on the Court.... [The Rule] improperly relies on and implements the plurality opinion in Rapanos which did not command a majority of the Court’s Justices and is not consistent with the [CWA’s] text, structure and purpose. Contrary to the Act’s objective ‘to restore and maintain the chemical, physical and biological integrity of the Nation’s waters,’ 33 U.S.C. § 1251(a), the [Rule] excludes many waters, including ephemeral streams and many wetlands, from the scope of [WOTUS] and thereby deprives these waters of CWA protections.” The states allege: “By eliminating CWA protections for all ephemeral streams, many wetlands, and other waters…the [Rule] also contradicts...the scientific evidence and the Agencies’ prior factual findings…. The [Rule] harms the States and Cities by limiting the waters subject to the Act’s protections, thereby exposing the States’ and Cities’ waters to pollution entering from jurisdictions that are less protective of their waters; putting the States and Cities at a competitive disadvantage by incentivizing industry to relocate to upstream states with less stringent water quality protections; disrupting the States’ and Cities’ regulatory programs; and threatening injury to the States’ and Cities’ sovereign and proprietary interests.” AK, ID, KS, MT, NE, ND, OK, SD, TX, UT, WY and 12 other states moved to intervene, assrting that sovereign lands and waters within state borders are potentially subject to federal jurisdiction and that the ability to “regulate and protect intrastate waters is an important element of state sovereignty.” They add that “the scope of the term ‘waters of the United States’ does not just set federal jurisdiction over waters within the State; it sets the scope of the States’ responsibilities under the [Clean Water Act (CWA)].” In addition, the intervening States “…believe the 2020 Rule strikes a reasonable balance between the roles of the federal regulators and the States in protecting land and water resources…and view [it] as a substantial improvement over the prior rule.” The court rejected the plaintiffs' motion for a preliminary injunction, noting that the 2020 Rule presents an entirely new question not addressed by Rapanos, whether the new rule has gone far enough. Given the ambiguity of "navigable waters" and Chevron deference, the court was unwilling to substitute its judgment for the policy choices of the agencies at this stage of the litigation. | 5/1/20: Lawsuit filed by 17 states 6/1/20: 23 states and 15 industry trade organizations move to intervene as defendants 6/19/20: Request for preliminary injunction denied 8/10/20: EPA/Corps Answer filed 8/14/20: Sackett appeal to 9th Circuit re: motion to intervene 8/31/20: Administrative record (amended) filed 11/23/20: Plaintiff states MSJ filed 1/19/21: EPA/Corps Opp./Response and cross-MSJ filed 1/22/21: Virginia Opp./Response and cross-MSJ filed 2/17/21: Congress amicus brief in support of Plaintiff states' MSJ; court granted leave to file this and other amicus briefs, and granted the stay requested by DOJ re: Biden EO 13990. 4/16/21: EPA/Corps Motion to Stay granted 7/16/21: EPA/Corps Motion to Remand 8/6/21: Amicus brief supporting remand without vacatur (by farm, cattle, oil amicus) 9/2/21: Hearing on Motion to Remand cancelled; no oral argument, decision on written briefs 9/16/21: Motion to remand granted |
| Riverkeeper v. Wheeler | 18-35982 | 9th Circuit | CWA | In December 2019, the 9th Circuit ruled that EPA was required to set TMDLs for temperature for the Columbia and Snake Rivers under the doctrine of "constructive submission," because WA and OR refused to set their own TMDLs. EPA had agreed to do so under a 2000 MOA with the states, but EPA's 2003 draft TMDL was never finalized. | 3/30/20: EPA's request for rehearing denied |
| Baley v. U.S. | 18-1323 19-1134 | Federal Circuit Court of Appeals Supreme Court | Curtailments | Both Baley and John Anderson Farms dealt with a 2001 decision by Reclamation to shut off irrigation water supplies to protect endangered fish. The question presented to the Supreme Court is: “Whether, against the legal backdrop of Congress’s and this Court’s recognition of the primacy of state law to determine, quantify, and administer water rights, a federal court may deem federal agency regulatory action under the ESA to constitute the adjudication and administration of water rights for tribal purposes.” The petitioners argue that the Federal Circuit’s decision upends several principles of western water rights administration. First, senior water rights, including federal reserved water rights, do not passively curtail junior water rights. With a valid call on the system, the state water right administrator curtails the most junior rights on the system until the senior right making the call is satisfied. Absent a call and administrative curtailment under state law, junior users may continue diverting water, to “ensure that water is not wasted.” Under the McCarran Amendment, petitioners emphasize, this also applies to federal reserved water rights. Second, although Reclamation “…has an obligation to comply with the ESA, nothing in that or any other statute authorizes [Reclamation] to determine the existence, location, or quantity of asserted tribal water rights, or to curtail a specific junior right to satisfy a senior right. To the contrary, section 8 of the Reclamation Act precludes [Reclamation] from determining water rights.” The Federal Circuit, “…acting outside of any adjudicatory process…” assumed the existence of tribal water rights and referenced the trust obligations of the U.S. While it is undisputed that the U.S. holds tribal fishing rights and associated water rights in trust, that “…is not the same as saying the United States has the authority to unilaterally determine where and in what quantities such water rights may exist, or to implement any such rights by selectively regulating parties that may be junior.” Third, tribal water rights to instream flow are not the same as rights to storage water captured during high run-off. “That results in a new source of water, physically and legally distinct from the natural flow of the stream.” Cert was denied. | 3/13/20: Petition for cert 6/22/20: Petition denied |
| Brooks v. Byler et al. | 19-cv-27798 | Marion County Circuit Court in Oregon | Curtailments | A 2018 OWRD rule established a process for shutting off junior irrigators pumping from wells within 500 feet of surface waters at the request of senior water users to prevent substantial interference with water rights. The Court ruled that OWRD exceeded its authority when it shut off junior groundwater users to protect senior rights of surface water users, violating the due process rights of the irrigators. This would require both a determination of how much water irrigators can sustainably withdraw from the aquifer each year, and a contested case hearing before regulating junior groundwater rights for interference with senior surface rights, and suggests the need for a critical groundwater designation to manage water rights in the Klamath Basin. | 3/11/20: Plaintiff's MSJ granted |
| Center for Biological Diversity et al. v. Interior et al. | 4:20-cv-106 22-15809 | U.S. District Court for the District of Arizona 9th Circuit | ESA | On appeal, the 9th Circuit vacated the 2014 BiOp, and reversed the district court's decision to grant the federal MSJ on the issue of agricultural water easement savings in the grioundwater demand accounting, and remanded with instructions for the Army and FWS to re-evaluate its water-savings analysis in a new BiOp to ensure that the tangible effects of the proposed action are "reasonably certain" to occur as required by the regulations (50 CFR 402.02). The court upheld other portions of the 2014 BiOp. BACKGROUND: The lawsuit challenges the assumptions of a 2014 FWS biological opinion, over groundwater pumping for use by Fort Huachuca and its contractors near the San Pedro River. Plaintiffs challenge the reliance on speculative water savings from agricultural water easements that hadn't been used for years, ignoring the effects of pumping on river base flows over an extended period of time, failure to analyze the effects of climate change, and alleges various other (ESA) violations. The lawsuit seeks to vacate the 2014 biological opinion and order the defendants to reinitiate consultation on the effects of continued groundwater pumping associated with the Fort on listed species. On March 31, 2022, the lower court issued a decision requiring FWS and Fort Huachaca to reinstate an ESA 7(a)(2) consultation and formulate a BiOp consistent with the court's opinion. | 3/13/20: Lawsuit filed 6/8/20: DOI/Army Answer 9/15/20: Administrative Record filed 11/13/20: Plaintiffs MSJ filed 3/26/21: Federal cross-MSJ filed 3/26/21: Motion to supplement Admin Record 9/21/21: Oral argument on MSJs 3/31/22: Court order directing FWS and the Fort to reinstate an ESA 7(a)(2) consultation and formulate a BiOp consistent with the Opinion 5/27/22: Notice of appeal to 9th Cir. by Plaintiffs 9/14/22: Opening brief filed 5/16/23: Oral arguments 12/4/23: 9th Cir. Opinion |
| Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist. | 5:20-cv-00174 Agua Caliente II | U.S. District Court for the Central District of California | Indian Reserved Water Rights | On May 19, 2025, the non-federal parties agreed to a settlement agreement that would permanently settle the claims by Agua Caliente and the United States against CVWD and DWA in both Agua Caliente I and Agua Caliente II. Before the Settlement Agreement can become effective, however, Congress must approve it, and the United States must execute it. The case is stayed until then. The 119th Congress has introduced two bills (S. 4368 and H.R. 5935) to ratify the agreement. BACKGROUND: At issue is whether the water district’s assessment of fees (replenishment assessment charges, RAC) on the tribe’s production of its federally reserved groundwater is preempted as a matter of federal law. The water district uses Colorado River water to recharge the aquifer. The RACs are imposed on water production in designated areas of benefit—including much of the Agua Caliente Reservation—to cover the costs of artificial recharge programs. The tribe argues that the RACs unlawfully interfere with its inherent and exclusive sovereign authority to regulate its water resource. | 1/24/2020: case filed 3/13/2020: Answers filed by Desert Water Agency and Coachella Valley Water District 6/22/2020: Defendants motion to bifurcate case 6/29/2020: Plaintiff's opposition to bifurcation 7/20/20: Motion denied; case management order modified to extend deadlines 10/6/20: Case stayed pending private mediation 6/20/25: Court stay pending Congressional approval of settlement |
| Eastern Oregon Mining Association v. Oregon Department of Environmental Quality | 19-839 | U.S. Supreme Court | CWA | Whether the Clean Water Act regulates activities that simply move preexisting material already present in a navigable water, such as rock, sand and gravel. | 12/20/2019: Petition for cert filed 6/15/2020: Petition for cert denied |
| Texas v. New Mexico | 22O65 | U.S. Supreme Court | Pecos River Compact | Texas objects to the River Master's accounting of evaporative losses at the Brantley Reservoir in New Mexico. Following Tropical Storm Odile in 2014, Texas and New Mexico were inundated. Water was held back to prevent further disaster. Although Texas was prepared to receive its compact delivery by March 2015, New Mexico's infrastructure was still damaged, and water releases would have caused further catastrophe. The water remained in the reservoir through the hot summer, where significant evaporative losses occurred. At issue is whether the River Master clearly erred in calculating New Mexico’s delivery credit for evaporation losses under the Pecos River Compact, and whether the River Master appropriately entertained New Mexico’s request for delivery credit for evaporation losses under the Compact. Oral arguments were heard on October 5, 2020, and the Supreme Court issued its decision on December 14, 2020. Referring to section C.5 of the River Master’s Manual, the court concluded: “The water was stored in New Mexico at the request of Texas. Some of the water then evaporated before it was released to Texas. Under those circumstances, as the River Master correctly concluded, New Mexico is entitled to delivery credit for the evaporated water. That result is both legally accurate and entirely fair. We deny Texas’s motion for review.” | 4/13/2020: oral arguments before the S. Ct. rescheduled for the fall term 7/29/20: 2020 report filed by Special Master 8/27/20: TX conditional motion for review of 2020 report 10/5/20: Oral Arguments 12/14/20: S.Ct. Decision |
| Montana and Wyoming v. Washington | 22O152 | U.S. Supreme Court | CWA 401; Commerce Clause | The U.S. filed an amicus brief in opposition to the petition, arguing that the Milennium Bulk Terminal bankruptcy rendered the complaint moot. MT and WY disagreed, aguing that their Commerce Clause concerns go beyond one §401 permit denial to a broader impact from WA policies that remain unchanged. BACKGROUND: Montana and Wyoming filed on Commerce Clause grounds, for Washington’s denial of Clean Water Act §401 certification of the Millennium Bulk Terminal project. They allege that Washington has intentionally discriminated against the landlocked Montana and Wyoming by blocking port access for one of their most important commodities, low-sulfur coal. The complaint alleges: “Washington’s denial of a Section 401 Water Quality certification was based on protecting the state’s own agricultural interests, the political concerns and aspirations of its Governor, and because of extraterritorial and unfounded concerns that coal exports from Wyoming and Montana would increase greenhouse gas emissions in Asia.” The complaint alleges violations of the Dormant and Foreign Commerce clauses of the U.S. Constitution which prohibit states from (1) engaging in discriminatory or protectionist actions against other states; (2) regulating conduct outside its borders or placing an undue burden on interstate commerce; and (3) regulating foreign commerce, especially when it is at odds with the foreign policy of the U.S. Government. Montana and Wyoming seek injunctions against Washington preventing it from (i) denying the CWA §401 certification on grounds unrelated to water quality; and (ii) engaging in protectionist and discriminatory actions in its permitting decisions for the Millennium Bulk Terminal and from basing its permitting decisions on extraterritorial factors. They also seek a declaration that Washington’s discrimination against their coal exports violates the Dormant Commerce Clause. In its motion in opposition, Washington argued that (1) the §401 certification was denied for reasons other than greenhouse gas emissions; (2) the company seeking to build the project was unable to obtain the necessary lease and county permits, meaning the project could not be built even if the §401 certification was approved; (3) the issues raised by Montana and Wyoming are already being litigated by the private company in state and federal courts; and (4) millions of tons of Montana and Wyoming coal already pass through Washington for export at west coast ports, and this one §401 certification denial is not protectionist or discriminatory. In reply, Montana and Wyoming argued that the §401 certification was denied with prejudice, while the other permit and lease issues could still be addressed in other ways; and that the private lawsuits could not address the significant loss to the States in severance taxes and revenue, an issue addressed in other original Supreme Court jurisdiction cases. | 1/21/2020: case filed 6/8/2020: Washington opposition filed 6/22/2020: WY and MT Reply 9/29/2020: Conference 10/5/2020: U.S. Acting Solicitor General invited to file a brief with the U.S. views 5/25/21: U.S. filed amicus brief in opposition to petition 6/7/21: MT and WY filed supplemental brief 6/24/21: S.Ct. Conference 6/28/21: Leave to file lawsuit denied |
| South Carolina Coastal Conservation League (CCL) et al. v. EPA et al. | 2:19-cv-03006 | U.S. District Court for the District of South Carolina | WOTUS | CCL sued to vacate the agencies’ recent rule (84 Fed. Reg. 56626) repealing the 2015 WOTUS Rule. The CCL plaintiffs allege: “Like the Suspension Rule earlier invalidated by this Court…the present rulemaking violates fundamental provisions of administrative law in furtherance of an ongoing campaign to diminish and impair the protections of the Clean Water Act – a bedrock federal statute that protects America’s waters from pollution.” The CCL plaintiffs allege that the repeal has been carried out by executive fiat, disregarding the federal rulemaking requirements and the views of the American public, as well as failing to consider the relative merits of the 2015 Rule or the pre-2015 regime. “The Final Repeal Rule also reinstates an illegal regime – the regulations that pre-dated the Clean Water Rule as limited by guidance – that runs contrary to Supreme Court precedent, unlawfully leaving certain waters of the United States unprotected due to the guidance’s unduly narrow interpretation of Justice Kennedy’s significant-nexus test.” The CCL plaintiffs claim nine violations of the APA: (1) a predetermination to repeal the 2015 WOTUS Rule; (2) failure to consider and address the effects of the repeal; (3) failure to provide a reasoned explanation for the repeal; (4) failure to discuss alternatives; (5) failure to provide a meaningful opportunity to comment; (6) failure to publish the text of the proposed and final rules; (7) failure to demonstrate that the repeal is consistent with the CWA; (8) arbitrary reinstatement of unlawful pre-2015 regulations; and (9) failure to provide a meaningful opportunity to comment on the economic analysis. | 10/23/19: case filed 12/18/20: Motion to intervene by various farm, ranch, mining, and other organizations 2/18/20: Case stayed 5/29/20: Case stayed 12/23/20: Case stayed 7/12/21: Case stayed 9/23/21: Case stayed 12/20/21: Stiputlation of Dismissal without prejudice |
| New Mexico Cattle Growers’ Association (CGA) v. EPA et al. | 1:19-cv-00988 | U.S. District Court for the District of New Mexico | WOTUS 2.0 (2019 and 2020) and "navigable waters" | On January 18, 2023, the new WOTUS Rule was published by the Biden adminsitration (88 FR 3004), scheduled to go into effect 3/20/23. Several lawsuits were filed challenging this rule, seeking injunctive relief and vacatur of the new rule. In light of the pending legal challenges to the new rule, the parties jointly requested this lawsuit be held in abeyance. "Any party may move to lift the stay if subsequent developments lead to reinstatement of the prior rules" under the CWA. On July 31, 2023, the parties agreed to dismiss the case without prejudice, and the case was closed. BACKGROUND: The lawsuit initially challenged the October 2019 readoption of the 1986 regulations, when the agencies repealed the 2015 Clean Water Rule defining “waters of the United States” (WOTUS) and “recodified” the guidance in place prior to the 2015 rule. The amended complaint expanded that challenge to the 2020 Navigable Waters Protection Rule. NMCGA argues that the agencies’ interpretation of the term “navigable waters” exceeds “…the agencies’ statutory authority under the Clean Water Act and the Congressional Review Act, or Congress’ authority under the Commerce Clause, the Due Process Clause, the Non-Delegation Doctrine, and the Tenth Amendment. Plaintiff asks this Court to declare that several provisions of the Clean Water Act, the 1986 Regulations, and related guidance, and/or the Navigable Waters Protection Rule, are statutorily and constitutionally invalid, and to enjoin their enforcement.” The complaint alleges that, even under the Navigable Waters Protection Rule, many of the waters included within the four categories – e.g., territorial seas and waters used for commerce, tributaries, lakes and ponds, and adjacent wetlands – “do not stand or flow year-round, and many of these non-perennial waters are only present for days or weeks before they dry up. EPA and the Army regulate discharges to the locations of these waters even though the ‘waters’ only occupy those locations for a few days or weeks in any given year.” | 10/22/19: Case filed 4/27/20: Amended Complaint 7/16/20: Notice of briefing complete on Motion for Prelim. Injunction 2/10/21: Order denying PI motion without prejudice; granting DOJ motion for stay re: Biden EO 13990 (new WOTUS rule) 3/29/22: Stay continued pending new WOTUS rule. 2/2/23: Stay continued until 7/31/23 7/31/23: The parties agreed to dismiss the case without prejudice. |
| Friesen v. Barfield | 2018-cv-000010 | Gove County District Court in western Kansas | Groundwater conservation | The Northwest Kansas Groundwater Management District No. 4 (GMD 4) adopted a Local Enhanced Management Area (LEMA) plan to aid in local conservation efforts to extend the life of the Ogallala Aquifer. Chief Engineer David Barfield, Kansas Department of Agriculture, approved the LEMA plan. Petitioner irrigators, who are required to reduce the amount of groundwater withdrawn over the next five years, appealed that decision, challenging the management plan and the constitutionality of the enabling statute. The court reviewed the language of the applicable statutes, the authority granted to the chief engineer and the GMDs, the limitations on the scope of that authority, and the standards and procedural requirements that must be met to approve a LEMA plan. The court found that the “…GMD 4 District Wide LEMA should be upheld. The LEMA Plan restrictions do not appear to be unconstitutional on their face or as applied. There is substantial evidence backing the agency's decision and therefore it is not arbitrary or capricious.” The court found that the LEMA statute lawfully authorizes the chief engineer to place temporary limits on water right diversions under certain conditions, which taking property for public purposes. The GMD 4 LEMA plan restrictions are temporary, intended to decrease the amount of aquifer decline and allow the aquifer to recharge, and must be reviewed at a minimum every five years. Although irrigators are targeted for reductions unlike domestic, municipal, industrial, recreation, and power water users, the irrigators account for approximately 97% of all groundwater used in GMD 4. The court held that it was rational for the plan to diminish the amount of groundwater irrigators could withdraw, to allow other water users to make voluntary reductions, and that distinguishing between water users did not violate the right to equal protection under the law. The court disagreed with the petitioners’ argument that the LEMA statute was vague, noting that water conservation is a complex field, and the flexibility in the statute allows the chief engineer some, but not unlimited, discretion in approving LEMA plans. The court found that the public hearings, requirements to review specific criteria at the hearings, review by the Kansas Secretary of Agriculture, judicial review, and the fact that the GMD is an elected body that can be held accountable by eligible voters provides sufficient procedural safeguards against favoritism and arbitrary action. The petitioners argued that other Kansas statutes required the application of the prior appropriation doctrine, and that the imposition of corrective controls under the LEMA plan directly conflicts with this doctrine. The defendants argued that the LEMA statute was written to authorize corrective controls that directly and unambiguously contravene that prior appropriation doctrine. Furthermore, the defendants argued that the prior appropriation doctrine only applies when there is not enough water to satisfy all appropriators. The court noted: “Currently there is enough water to satisfy all appropriators and the corrective controls are only a preemptive measure to prevent a scenario in which prior appropriation would have to be used. Whether this argument holds water is based on whether to read” the statutes individually or together. | 10/15/19: Court decision |
| WildEarth Guardians v. Army Corps of Engineers and Middle Rio Grande Conservancy District | 18-2153 | 10th Circuit Court of Appeals | Rio Grande Compact; ESA | At issue was the protection of two endangered species on the Rio Grande, the southwestern willow flycatcher and the Rio Grande silvery minnow, and whether the Corps unlawfully failed to consult with the U.S. Fish and Wildlife Service (FWS) about alternative water management policies to help protect the species. The court held that the Corps does not have discretion under the statutory mandates of the Flood Control Acts that govern the Middle Rio Grande. Three dams were built along the river as part of the congressionally-approved Middle Rio Grande Conservancy District Project. The Jemez Canyon Dam was authorized by the 1948 Flood Control Act, which limited operations to flood control, except as otherwise authorized by the 1939 Rio Grande Compact. The Cochiti and Galisteo Dams were authorized by the 1960 Flood Control Act, and those reservoirs were similarly limited to operations for flood control and sediment control. “The Corps is required to operate within strict parameters because the Rio Grande Compact between Colorado, New Mexico, and Texas equitably apportions waters of the Rio Grande Basin, and the Corps is not to interfere with its operations.” Under Section 7 of the Endangered Species Act, federal agencies must formally consult with the USFWS if an agency action may affect a listed species, and if the agency has discretion to act for the benefit of an endangered species. Although the Corps has previously taken action to protect the minnow and flycatcher, it has done so with approval from the Rio Grande Compact Commission. Regardless, the plain language of the Flood Control Acts indicate the Corps lacks discretion. The 2018 America’s Water Infrastructure Act authorized Corps discretion to further ESA objectives, and instructed the Corps to restart “fill and spill” deviations. However, it also required permission from not only the Compact Commission, but also the Pueblos of Cochiti and Santa Ana, showing that the Corps still “lacks discretion to engage in freestanding consultation with the FWS.” The court said: “In the arid southwest, the Rio Grande is one of only a handful of rivers that create crucial habitat for plants, animals, and humans. And it is a fact of life that not enough water exists to meet the competing needs. Recognizing these multiple uses, Congress has authorized the Bureau of Reclamation and the Army Corp of Engineers to maintain a balance between the personal, commercial, and agricultural needs of the people in New Mexico’s Middle Rio Grande Valley and the competing needs of the plants and animals.” The 10th Circuit affirmed the district court’s holding that the Corps “was not authorized by the statute to allocate additional water to species’ needs and therefore was not required to consult with the FWS.” | 1/17/2020: 10th Circuit decision |
| Save the Colorado, et al. v. DOI | 3:19-cv-8285 23-15247 | U.S. District Court for the District of Arizona 9th Circuit | Colorado River | On April 28, 2024, the 9th Circuit upheld DOI’s December 2016 plan for managing the Glen Canyon Dam. The 9th Circuit agreed with the District Court, finding that DOI selected a management plan that adequately juggled its obligations under the Grand Canyon Protect Act of 1992, the Colorado River Storage Project Act of 1956, and other regulations. BACKGROUND: Plaintiffs allege that DOI failed to take into consideration the effects of climage change and thea aging infrastructure of the Glen Canyon Dam in its environmental analysis of future operations. They also assert that DOI failed to consider the alternatives of decommisioning the dam, filling Lake Mead first, and returning the river to its natural flow. The plaintiffs seek to set aside DOI's final environmental impact statement for violations of NEPA, and to require the inclusion of the impacts of climate change and a reasonable range of alternatives in the proposed action. DOI denied all the allegations, and asserted that the plaintiffs are not entitled to the relief they seek, and that the court lacks subject matter jurisdiction. The Colorado River Basin states and agencies intervened, joining in DOI's answer, and laid out the intricate complexities of the Law of the River, with its many compacts, treaties, Congressional deference to state water rights and laws, and ongoing efforts among the states and various other organizations and interested parties to manage the flow, salinity, and ecological benefits of the river. On December 23, 2022, the court issued its decision denying the plaintiffs' MSJ and granting the federal defendants' and state intervenors' cross-MSJs. The court held that NEPA only requires consideration of reasonable alternatives consistent with the agency's policy objectives and the purpose, in this case, of the LTEMP, which is to set guidelines regarding water releases based on the 2007 Interim Guidelines and the Law of the River. Complying with the Law of the River, meeting water delivery requirements, and complying with other federal laws is an appropriate goal for the federal defendants. The range of alternatives considered in the EIS was consistent with the NEPA goals of informed decision-makeing and informed public participation. The EIS provided explanations for why the plaintiffs' proposed alternatives (decommissioning Glen Canyon Dam, equalizing upstream flows, filling Lake Mead first, or run-of-the-river) were rejected. On February 23, 2023, the plaintiffs appealed the decision to the 9th Circuit. The 9th Circuit heard oral arguments on February 6, 2024. | 10/1/2019: Complaint 12/5/2019: DOI answer 4/2/2020: Joint Motion to Intervene by Colorado, California, Arizona Department of Water Resources, Nevada, Utah, and Wyoming 4/30/2020: Joint Motion to Intervene by Southern Nevada Water Authority, Central Arizona Water Conservation District, and Metropolitan Water District of Southern California 1/22/22: Plaintiffs MSJ 3/13/22: DOI's MSJ 4/7/22: Intervenor defendants' (lower basin) joinder to DOI's MSJ 4/8/22: NM Interstate Stream Commission amicus brief 10/7/22: Oral Arguments held 12/23/22: Judgement entered for the Defendants 2/23/23: Appeal to 9th Circuit 8/23: States' briefings filed, joining with DOI briefing and adding State concerns 2/6/24: Oral argument |
| Pacific Coast Federation of Fishermen’s Associations, et al., v. Glaser, et al. | 17-17130 | 9th Circuit | CWA Agricultural Exception | On September 6, the 9th Circuit reversed and remanded the case to the Eastern District Court of California. The case dealt with discharges of pollutants into navigable waters, and whether the discharges fell under the agricultural exception (33 U.S.C. §1342(1)(1)), or were a violation of the National Pollutant Discharge Elimination System (NPDES) permitting requirements. The Grasslands Bypass Project (Project) – jointly administered by the defendants Bureau of Reclamation and the Delta Mendota Water Authority as part of the Central Valley Project – is a drainage system of perforated drain laterals underlying farmlands to catch irrigated water and redirect it to the San Luis Drain toward the Mud Slough, the San Joaquin River, and the Bay-Delta Estuary. The Project was created as a result of a previous lawsuit for the purpose of preventing irrigated water from leaching selenium and salt from the agricultural soil into the groundwater. The plaintiffs argued that because some of the discharges came from land underlying the Vega Solar Project, seepage from highways and residences, and farmland that was fallowed or retired, the agricultural exception did not apply. The District Court held that because the majority of the Project water came from agricultural lands, the exception applied. The 9th Circuit disagreed. The exception language is “for discharges composed entirely of return flows from irrigated agriculture.” The 9th Circuit also noted that the defendants bore the burden of proof to demonstrate that the Project’s discharges fit the exception, rather than the plaintiffs. The case was remanded to consider the Vega and seepage claims under the corrected exemption standard. The 9th Circuit held, however, that the fallowed and retired land fell within the definition of irrigated agriculture in this case. “We have ordered Defendants, in separate litigation, to provide drainage ‘to lands receiving water through the San Luis Unit.’ The retirement of farmlands was a component of that drainage plan. To hold that drainage from retired lands does not fall under the CWA’s statutory exception for discharges from agriculture would lead to contradictory and illogical results. We decline to require Defendants to provide a drainage plan that includes the retirement of farmland, on the one hand, and hold that those activities violate the CWA absent a permit, on the other.” | 9/6/2019: 9th Cir. reversed and remanded 12/20/19: 9th Cir. amended and narrowed its opinion |
| Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, et al. | 5:13-cv-883 Agua Caliente I | U.S. District Court for the Central District of California | Indian Reserved Water Rights | On May 19, 2025, the non-federal parties agreed to a settlement agreement that would permanently settle the claims by Agua Caliente and the United States against CVWD and DWA in both Agua Caliente I and Agua Caliente II. Before the Settlement Agreement can become effective, however, Congress must approve it, and the United States must execute it. The case is stayed until then. Congressional approval of the May 2025 Agua Caliente water settlement is currently pending in the 119th Congress. Lawmakers introduced matching bills—S. 4368 in the Senate and H.R. 5935 in the House—to ratify the agreement and authorize $500 million in federal funding. The bills (1) affirm the tribe's federally reserved right to extract up to 20,000 acre-feet per year of groundwater from the Indio Subbasin, plus surface water rights; (2) authorize $500 million in federal funds for the Agua Caliente Settlement Trust Fund to support water infrastructure, groundwater augmentation, and water management; and (3) transfer 2,742 acres of Bureau of Land Management land into trust for the tribe. BACKGROUND: The Agua Caliente Band of Cahuilla Indians filed a lawsuit in May 2013, asking the Court to declare and quantify the existence of the tribe’s water rights as the senior rights in the Coachella Valley under federal law. In March 2015, the District Court ruled on summary judgment that the Agua Caliente Band of Cahuilla Indians has a reserved right to water, and groundwater is a water source available to fulfill that right. The Court denied the Tribe’s claim for aboriginal title to groundwater. The case was trifurcated, with phase II addressing whether the Tribe beneficially owns the “pore space” of the groundwater basin underlying the Reservation, and whether a tribal right to groundwater includes the right to receive water of a certain quality. Phase III will focus on the quantification of the Tribe’s right. (Note: The order of Phase II and Phase III appears to have been reversed. as litigation continued.) On March 7, 2017, the 9th Circuit upheld the California District Court’s summary judgment, holding that the United States implicitly reserved a right to water when it created the Agua Caliente Reservation, and that the Tribe’s reserved water right extends to the groundwater underlying the Reservation. The court expressed “no opinion on how much water falls within the scope of the Tribe’s federal groundwater right,” since that will be determined at a later phase of the case. However, even with water under state-law entitlements, “there can be no question that water [from the aquifer] in some amount was necessarily reserved to support the reservation created.” On July 5, 2017, the Defendant water agencies filed petitions for cert. On August 7, 2017, NV, AZ, AR, ID, NE, ND, SD, TX, WI, and WY filed an amicus curiae brief , arguing that the 9th Circuit’s expansion of the federal reserved water rights doctrine unsettles the scope of the states’ authority over groundwater resources, and that the decision is inconsistent with caution courts must exercise when altering the federal-state balance by interfering with state sovereign power, particularly when applying implied Congressional intent. It calls the decision an “indiscriminate application of the Winters doctrine to groundwater” that ignores the nuances of past court decisions and expressed Congressional intent. The Supreme Court denied the petition for cert on November 27, 2017. On April 19, 2019, the U.S. District Court for the Central District of California granted the defendants’ motions for summary judgment, which argued that the tribe does not have standing to assert its claims. The court agreed, noting that although there may be injury to the groundwater in the form of overdrafts and the practice of recharge with lower-quality Colorado River water, the tribe has not demonstrated injury to its ability to use water of a sufficient quality or quantity to fulfill the purposes of the reservation. Similarly, the court held that the tribe did not demonstrate that the defendants interfered with the tribe’s right to use the aquifer’s pore spaces to store its reserved water rights. On July 17, 2020, the tribe filed its amended complaint.The case was stayed for mediation. | 5/2013: Agua Caliente filed suit 3/27/2015: Summary judgment re: groundwater available as part of reserved water right 10/18/16: Oral arguments on interlocutory appeal, 9th Cir. 3/7/17: 9th Circuit panel decision on Phase I reserved groundwater appeal from CA court 6/5/17: Tribe’s Motion to Lift Stay granted; CA Dist. Ct. proceeding with Phase II 7/5/17: Petition for Certiorari from DWA and CVWD 8/7/17: Amicus brief in support of Petition for Cert, filed by NV, AZ, AR, ID, NE, ND, SD, TX, WI, WY 11/27/17: S. Ct. denied Cert 4/19/19: Dist. Ct. granted Defendants' MSJ on Phase II 8/14/19: Dist. Ct. denied motion to reconsider 7/17/20: Agua Caliente filed its amended complaint 7/31/20: Answers to amended complaint 10/6/20: Case stayed pending private mediation 6/20/25: Court stay pending Congressional approval of settlement |
| Kisor v. Wilkie | 18-15 | U.S. Supreme Court | Chevron Deference | The VA denied a Marine veteran disability benefits for service-related PTSD. The Federal Circuit found the petitioner and the VA both offered reasonable interpretations of the term "relevant" as contained in the Code of Federal Regulations, and deferred to the VA's interpretation under Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), directing courts to defer to an agency's reasonable interpretation of its own ambiguous regulation. Nineteen states, including Arizona, Idaho, Kansas, Nebraska, Nevada, Oklahoma, Texas, Utah, and Wyoming, filed an amicus brief supporting the petition for certiorari. They argued that Auer and Seminole Rock present uniquely problematic impacts on states, expanding federal power to preempt state law without the protections of legislative procedure or notice-and-comment rulemaking, changing the balance of state-federal power. They also note the inconsistencies of enabling agencies to do what neither the President nor Congress has authority to do under the Constitution (i.e., the President cannot arrogate to himself the power to preempt state law, and Congress cannot retroactively change conditions governing state receipt of federal funds after the fact.) The states note, "Members of this Court have awaited an appropriate case in which the validity of Seminole Rock may be explored through full briefing and argument. This is that case. Whether Seminole Rock remains valid is squarely presented here. The Federal Circuit's holding rests on Seminole Rock deference. And the Federal Circuit might have reached a different conclusion but for Seminole Rock's requirements." On June 26, 2019 the U.S. Supreme Court vacated and remanded the case in a 9-0 decision. The Court declined to overrule the long line of precedents of cases following Auer or Seminole Rock. “…Auer deference pervades the whole corpus of administrative law, [and] abandoning it would cast doubt on many settled constructions of rules.” Additionally, Congress may alter the Court’s decision, a bedrock principle of court deference toward administrative agencies carrying out legislative intent. However, that deference relies on underlying assumptions related to the comparative attributes of courts and agencies. Among those assumptions are that the regulatory interpretation is based on the agency’s official position, not merely a convenient litigating position, and that the interpretation is based on the agency’s substantive expertise. Therefore, not every reasonable agency reading of an ambiguous rule is entitled to Auer deference, and a court must make an independent inquiry regarding the character and context of the agency’s interpretation to determine whether deference is merited. The case was remanded to the Federal Circuit for a more thorough evaluation of whether the regulation is truly ambiguous, and to reconsider the applicability of Auer deference under the narrower principles outlined by the Supreme Court’s decision. | 3/27/19: Hearing scheduled (re: petition for cert) 6/26/19: Vacated and remanded, 9-0 |
| California v. Bureau of Land Mgmt. | 18-521 20-16157 | U.S. District Court for the Northern District of California 9th Circuit | Hydraulic fracturing | BACKGROUND: On December 28, 2017, the Bureau of Land Management (BLM) published its Federal Register notice of the final decision to rescind the stayed 2015 Hydraulic Fracturing Rule. BLM’s review of the Rule found that all 32 of the states with federal oil and gas leases have regulations to address hydraulic fracturing, and that companies are disclosing the chemical content of their hydraulic fracturing fluids using FracFocus or other state regulatory databases. Rescinding the 2015 Rule was also considered consistent with the Administration’s Executive Order 13771 to reduce the costs of regulatory compliance. On January 24, 2018, California and several environmental groups sought to vacate the rescission and reinstate all of the Hydraulic Fracturing Rule’s provisions. CA argues that hydraulic fracturing on federal and Indian lands, particularly those not subject to state jurisdiction, will impact surface water and groundwater resources, air pollution, and seismicity from the disposal of wastewater. Additionally, states do not have BLM’s stewardship standards and trust responsibilities over federal lands. ). California said that although new administrations are entitled to change policy positions, the APA requires a reasoned explanation for those changes, particularly addressing any inconsistencies with prior factual findings. California argues that state and tribal regulations fall short of the 2015 Rule requirements. “For example, at least six of the nine states where the majority of fracking on federal land occurs did not require the use of tanks instead of pits for containing injection waste fluids, as the Fracking Rule does. Additionally, most of the nine states’ regulations on monitoring and verifying the integrity of cement casing fell short of the Fracking Rule’s requirements. The Fracking Rule contemplated concurrent state regulation of wells on federal lands and in no way prevented states from enacting stricter requirements. States or tribes could also apply for a variance from the requirements of the Fracking Rule.” State requirements also differ “with regard to mechanical integrity testing, pressure monitoring during hydraulic fracturing operations, and post-fracturing disclosure requirements.” The district court rejected CA's arguments. “The Court’s task is not to decide whether the changes [BLM] seek[s] to make will result in better or worse environmental policy…[or] to decide whether it would find the rationales advanced by the agency compelling (or even persuasive) if it were reviewing the matter from scratch. Instead, the narrow APA question before the Court is whether the admitted policy change represented by the Repeal was so inadequately explained as to be arbitrary and capricious.” The court added that it may not question BLM’s choice to weigh socioeconomic concerns more heavily than the value of consistent federal regulations the 2015 rule may have provided. The court also rejected Wyoming’s argument that BLM lacked authority to promulgate the rule. Aside from the fact that the 2015 rule wasn’t before the court (only the repeal of the rule), the court said BLM never conceded that it lacked legal authority, only eliminated the need for further litigation over BLM’s statutory authority by repealing the rule. The case is now on appeal before the 9th Circuit, and has been administratively closed for mediation. | 1/24/18: Lawsuits filed 7/17/18: U.S. Motion to transfer case to Wyoming denied 10/9/18: BLM lodged administrative record with the court 1/22/20: Hearing on MSJs 3/27/20: BLM and WY's Cross MSJ's granted, CA's MSJ denied 6/12/20: CA filed appeal, 9th Cir. #20-16157 10/21/20: Opening briefs 11/20/20: Answering brief 2/11/21: Reply briefs 2/19/21: Mediation confrence scheduled for March 1 3/19/21: Case administratively closed for mediation 9/19/25: CA motion to voluntarily dismiss the appeal (FRAP 42(b)) 9/24/25: Motion to dismiss granted |
| Georgia et al. v. Pruitt, et al | 2:15-cv-79 | U.S. District Court for the Southern District of Georgia | WOTUS | On June 8, 2018, the court granted a preliminary injunction, prohibiting implementation of the EPA and Corps’ 2015 Clean Water Rule defining waters of the United States (WOTUS) in the following states: Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia, and Wisconsin. Although the Trump Administration has delayed implementation of the 2015 Rule and is currently in a rulemaking process to replace the Rule, the Court found the threat to state sovereignty sufficiently imminent to issue the injunction and maintain the status quo. The Court also found that the states were likely to prevail on the merits. “The WOTUS Rule allows the Agencies to regulate waters that do not bear any effect on the ‘chemical, physical, and biological integrity’ of any navigable-in-fact water. The definition of ‘tributary’ covers a trace amount of water so long as ‘the physical indicators of a bed and banks and ordinary high water mark’ can be found by ‘mapping information’ or ‘remote sensing tools’ where actual physical indicators are ‘absent in the field.’ This definition is similar to the one invalidated in Rapanos, and it carries with it the same concern that Justice Kennedy had there – it seems ‘to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water.’” On August 31, 2018, the states filed a Motion for Summary Judgment (other MSJs were filed by other parties around the same time.) On December 14, 2018, the court held a hearing on the various motions. On August 21, 2019, the court granted the states MSJ, held that the rule violated the CWA and APA, but rather than vacating the 2015 WOTUS rule, the court remanded to the agencies. (SEE ALSO WOTUS BACKGROUND under North Dakota v. EPA) | 6/29/15: EPA & Corps published WOTUS rule (80 Fed. Reg. 37054); various lawsuits filed same day 2/22/16: A divided 6th Circuit panel ruled 2-1 that it has jurisdiction 9/2/16: NAM petition for cert 1/22/18: S. Ct. reversed 6th Circuit ruling, jurisdiction over WOTUS Rule challenges belongs in Dist. Ct. 6/8/18: Preliminary Injunction in Georgia case 8/31/18: State MSJ 12/14/18: Hearing on MSJs 8/21/19: Order remanding 2015 WOTUS rule to agencies. |
| Texas et al. v. EPA et al. | 3:15-cv-162 | U.S. District Court for the Southern District of Texas | WOTUS | On September 12, 2018, the states of Texas, Louisiana, and Mississippi were granted a preliminary injunction of the WOTUS Rule. On October 18, 2018, the states filed a Motion for Summary Judgment (other MSJs were filed by other parties around the same time.) On December 21, 2018, the motion briefing was completed. On May 28, 2019, the court granted the states’ MSJ solely on the grounds that the WOTUS Rule violated the APA for failing to provide notice and an opportunity to comment on (1) the change in the definition of “adjacent” from ecological-hydrological criteria to a distance-based criteria, significantly changing the scope of jurisdiction; and (2) the final Connectivity Report and the studies that served as the technical basis for the rule. The court declined to address the merits of the other three arguments in the MSJ (violations of CWA, Commerce Clause, and 10th Amendment) as premature. The court also found remand to the agencies as the appropriate remedy rather than vacatur, which would be disruptive, particularly in light of the fact that the agencies are already reviewing whether changes should be made to the WOTUS Rule. Motions for reconsideration were denied 12/6/19. (SEE ALSO WOTUS BACKGROUND under North Dakota v. EPA) | 6/29/15: EPA & Corps published WOTUS rule (80 Fed. Reg. 37054); various lawsuits filed same day 2/22/16: A divided 6th Circuit panel ruled 2-1 that it has jurisdiction 9/2/16: NAM petition for cert 1/22/18: S. Ct. reversed 6th Circuit ruling, jurisdiction over WOTUS Rule challenges belongs in Dist. Ct. 9/1/18: Preliminary Injunction in Texas case 10/18/18: States' MSJ 12/21/18: MSJ briefing completed. 5/28/19: Court granted states' MSJ - remanded rule to EPA 12/6/19: Motions for reconsideration denied |
| North Dakota, et al. v. EPA et al. | 3:15-cv-59 | U.S. District Court for the District of North Dakota | WOTUS | On May 1, 2018 the U.S. District Court for North Dakota entered an order affirming that North Dakota et al. v. EPA will proceed rather than wait for the outcome of the federal agency’s new rulemaking efforts to define “waters of the U.S.” On June 1, 2018, the states filed a Motion for Summary Judgment. On July 30, 2018, merits briefing in the case concluded. On February 13, 2019, the states filed an unopposed motion to schedule a hearing on their MSJ on the merits of most of the claims in the complaints. Subsequent parties sought to intervene or withdraw, including the withdrawal of CO and NM on May 14, 2019. On June 13, 2019, North Dakota renewed its request for oral argument or a merits decision, and included relevant case decisions (e.g. Texas v. EPA). WOTUS BACKGROUND: On June 29, 2015, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) published their Final Rule on the Waters of the United States (WOTUS) in the Federal Register (80 Fed. Reg. 37054). From June 29 to July 31, 69 plaintiffs filed 11 lawsuits, including 15 WSWC member states: Alaska, Arizona, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico (agencies), North Dakota, Oklahoma, South Dakota, Texas, Utah, Wyoming. Other plaintiffs include 15 additional states, 14 industrial groups, as well as environmental groups. Simultaneous petitions were filed in 2nd, 5th, 6th, 8th, 9th, 10th 11th and D.C. Circuit Courts from most of the same plaintiffs out of an “abundance of caution,” since certain EPA actions are generally exclusively reviewable by the Circuit Courts of Appeals under 33 USC §1369(b)(1). These petitions were consolidated before the 6th Circuit by order of the Multi-District Litigation (MDL) Panel. On February 22, 2016, a divided 6th Circuit panel ruled 2-1 that it has jurisdiction over the consolidated appellate court cases challenging the EPA and Corps’ WOTUS rule, rather than the District Courts, and denied the petitioners’ motions to dismiss. The 6th Circuit’s nationwide stay on the WOTUS rule implementation remained in effect while the decision was appealed to the Supreme Court. On January 22, 2018, the U.S. Supreme Court reversed the 6th Circuit’s ruling that challenges to EPA’s 2015 WOTUS Rule belong in the appellate court. The Court held that the rule falls outside the scope of CWA §1369(b)(1), so challenges to the rule must be filed in the federal district courts. | 6/29/15: EPA & Corps published WOTUS rule (80 Fed. Reg. 37054); various lawsuits filed same day 2/22/16: A divided 6th Circuit panel ruled 2-1 that it has jurisdiction 9/2/16: NAM petition for cert 1/22/18: S. Ct. reversed 6th Circuit ruling, jurisdiction over WOTUS Rule challenges belongs in Dist. Ct. 5/1/18: North Dakota case proceeding regardless of Administration’s new rulemaking efforts 6/1/18: State MSJ filed 7/30/18: Briefing completed 2/13/19: Motion for hearing on MSJ 6/1/19: ND renewed request for oral argument 1/24/20: EPA & Corps filed final Navigable Waters Protection Rule |
| Florida v. Georgia | #22O142 | U.S. Supreme Court | Equitable Apportionment | On April 1, 2021, the U.S. Supreme Court issued its 9-0 decision holding that Florida had not shown clear and convincing evidence of serious ecological injury caused by Georgia’s alleged overconsumption, and thus was not entitled to an equitable apportionment of interstate waters. The Court noted that the precise causes of Florida’s injuries remain a subject of ongoing scientific debate: “As judges, we lack the expertise to settle that debate and do not purport to do so here. Our more limited task is to evaluate the parties’ arguments in light of the record evidence and Florida’s heavy burden of proof. And on this record, we agree with the Special Master that Florida has failed to carry its burden.” The Court declined to rule on the causation standard applicable in equitable apportionment cases – e.g., whether Georgia’s consumption of water must be the sole cause of injury or at least a substantial factor contributing to it – because “…Florida has failed to establish a sufficient causal connection under any of the parties’ proposed standards.” The Court noted that the fundamental problem with Florida’s evidence of oyster collapse “…is that it establishes at most that increased salinity and predation contributed to the collapse, not that Georgia’s overconsumption caused the increased salinity and predation…. The NOAA, in fact, primarily blamed ‘prolonged drought conditions’ and the Corps’ reservoirs operations – not Georgia’s consumption during drought conditions – for the elevated levels of salinity and predation in the Bay. Other record evidence, moreover, indicates that the unprecedented series of multiyear droughts, as well as changes in seasonal rainfall patterns, may have played a significant role.” Further, the Court found an absence of evidence of actual harm to other wildlife and plant life along the river in terms of population decline, particularly when the U.S. Fish and Wildlife Service found that one of the species is stable and may be increasing in population size. The Court concluded: “In short, Florida has not met the exacting standard necessary to warrant the exercise of this Court’s extraordinary authority to control the conduct of a coequal sovereign. We emphasize that Georgia has an obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource. But in light of the record before us, we must overrule Florida’s exceptions to the Special Master’s Report and dismiss the case.” BACKGROUND: On June 27, 2018, the Supreme Court issued a 5-4 decision to remand the case to the Special Master for further evidence. Rather than deny Florida’s request for relief due to the absence of the Corps as a necessary party, the Court noted that the Corps has agreed to cooperate in implementing any determinations and obligations this Court decrees. While the Corps must meet statutory obligations when it operates dams and impounds water, and any cooperation would be at the Corps’ discretion, the Court determined that it is premature to assume that a remedy to the interstate conflict would be in vain without an order binding the Corps. The Court held that Florida made a legally sufficient showing at this stage of the case that equitably apportioning the water from the interstate Apalachicola -Chattahoochee-Flint River Basin might be an effective remedy. The Special Master’s assumptions about Florida’s significant ecological and economic harms entitle Florida to the opportunity to show that the benefits of equitable apportionment outweigh the harms of placing a cap on Georgia’s use of Flint River waters. While the Court reserved judgment on the correct findings of fact and the ultimate disposition of the case, it held that the Special Master’s standard of proof for a workable remedy was too strict. Florida was required to show the general availability of judicial relief by clear and convincing evidence, but the details and effectiveness of a decree is a separate consideration. The Court remanded the case to conduct an equitable-balancing inquiry. To determine whether Florida’s harms may be redressed by a court decree, the Special Master must make findings of fact regarding the scope of Florida’s harm caused by the absence of water, and the approximate amount of water that must flow into the Apalachicola River to ameliorate the harm. On December 11, 2019 the Special Master issued his recommendations to the U.S. Supreme Court. The Special Master found other causes for Florida's injuries than Georgia's consumption of water, including drought, mismanagement of aquatic resources, and changes in stream-estuary morphology due to Corps operations. The Special Master wrote: “Given my factual findings, I recommend denying Florida’s request for a decree because it has not proved the elements necessary to obtain relief. Florida has pointed to harm in the oyster fishery collapse, but I do not find that Georgia caused that harm by clear and convincing evidence. Next, although Georgia’s use of the Flint and Chattahoochee Rivers has increased since the 1970s, Georgia’s use is not unreasonable or inequitable. Last, I have determined that the benefits of an apportionment would not substantially outweigh the harm that might result. This is especially true given that the Army Corps’ reservoir operations on the Chattahoochee River would prevent most streamflow increases from reaching Florida during the times when more streamflow is needed to alleviate Florida’s alleged harms.” | 11/3/14: Complaint filed 2/21/17: S. Ct. received the Special Master’s Report 6/27/18: S. Ct. Remand to (new) Special Master 1/31/19: FL and GA filed supplemental briefs 11/7/19: Oral argument before the Special Master 12/11/19: Special Master's Second Report 4/13/20: Florida's Exceptions to the Special Report filed 6/26/20: Georgia's Reply to FL Exceptions to the Special Report filed 7/6/20: US amicus brief filed, in support of FL claims 2/22/21: Oral Arguments before S. Ct. 4/1/21: S. Ct. decision |
| Mississippi v. Tennessee | No. 22O143 | U.S. Supreme Court | Interstate Groundwater, Equitable Apportionment | On November 22, 2022, the U.S. Supreme Court dismissed a suit Mississippi brought under an original action against Tennessee for damages and other relief related to the pumping of groundwater by the City of Memphis from the Middle Claiborne Aquifer, a valuable water resource that lies beneath eight states. Mississippi argued that Tennessee’s pumping - using wells Mississippi conceded are located entirely in Tennessee - siphons water away from Mississippi and amounts to a tortious taking of groundwater owned by Mississippi. The Supreme Court disagreed, concluding that the groundwater is subject to equitable apportionment. “Equitable apportionment aims to produce a fair allocation of a shared water resource between two or more States. The doctrine’s ‘guiding principle’ is that States ‘have an equal right to make a reasonable use’ of a shared water resource…. Mississippi correctly observes that we have never considered whether equitable apportionment applies to interstate aquifers…. Mississippi contends that it has sovereign ownership of all groundwater beneath its surface, so equitable apportionment ought not apply. We see things differently. It is certainly true that ‘each State has full jurisdiction over the lands within its borders, including the beds of streams and other waters.’ Kansas v. Colorado, 206 U. S., at 93. But such jurisdiction does not confer unfettered ‘ownership or control’ of flowing interstate waters themselves. Wyoming v. Colorado, 259 U. S., at 464. Thus, we have ‘consistently denied’ the proposition that a State may exercise exclusive ownership or control of interstate ‘waters flowing within her boundaries.’ Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 102 (1938). Although our past cases have generally concerned streams and rivers, we see no basis for a different result in the context of the Middle Claiborne Aquifer.” | 6/6/2014: Motion for leave to file complaint 8/12/2016: Special Master’s Memorandum of Decision on various motions 11/29/18: Special Master denied Tennessee's MSJ 12/21/18: TN and MS filed pre-hearing briefs 5/20/19-5/24/19: Evidentiary hearing (transcripts posted) 9/19/19: Post hearing briefs 2/25/20: Closing arguments 11/5/20: Special Master's Report 2/22/21: MS and TN filed exceptions 4/29/21: Amicus brief filed by CO, ID, NE, NC, ND, OR, SD, & WY 7/2//21: Exceptions to the Special Master's Report set for oral arguments "in due course" 10/4/21: S. Ct. Oral Arguments 11/22/21: S. Ct. Ruling: Exceptions to the Special Master Report overruled in part and sustained in part, and case dismissed |
| Hawaii Wildlife Fund v. County of Maui | No. 18-260 | U.S. Supreme Court | Groundwater under CWA | On April 23, 2020 the U.S. Supreme Court issued a ruling, vacating and remanding the 9th Circuit’s decision. The Court held that the provisions of the CWA require an NPDES permit when there is a “functional equivalent of a direct discharge,” which may include some discharges through groundwater. The Court rejected the 9th Circuit’s “fairly traceable” interpretation, noting that Congress did not intend to give EPA such broad authority. The structure of the CWA makes clear that the States have substantial responsibility and autonomy when it comes to groundwater pollution and nonpoint source pollution, and EPA does not have authority to seriously interfere with this state responsibility. On the other hand, the interpretation offered by the plaintiff County of Maui and the Solicitor General on behalf of EPA, that all discharge to groundwater is excluded, would create an unreasonable loophole. An addition falls within the statutory requirement that it be ‘from any point source’ when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.” Time and distance will be the most important factors in most cases. Other relevant factors might include the nature of the aquifer material, the extent to which the pollutant is diluted or chemically changed as it travels, the amount of pollutant entering the navigable waters relative to the amount discharged at the point source, how or where the pollutant enters the navigable waters, and the degree to which the pollution has maintained its specific identity. Additional future guidance may come from future court cases and administrative guidance from EPA. BACKGROUND: On February 1, 2018, the 9th Circuit ruled that the County of Maui violated the CWA when it indirectly discharged treated wastewater from its injection wells through a groundwater conduit into the Pacific Ocean, a “navigable water.” Dye tracer tests showed the connection between the four wells at the Lahaina Wastewater Reclamation Facility and the ocean, and the court held that the wells were point sources, the effluent was a pollutant, and the county was subject to the National Pollutant Discharge Elimination System (NPDES) permitting requirements under the CWA. Although the U.S. District Court of Hawaii held that the groundwater is both a point source and navigable water under the CWA, the 9th Circuit declined to decide whether groundwater is a navigable water under the statute, and referred to the wells themselves as the point source. | 2/1/18: 9th Cir. ruled on CWA violations for groundwater discharge 2/19/19: Supreme Court granted cert 5/16/19: Amici curiae briefs filed (states) 9/20/10: Maui County Council voted 5-4 to settle 11/6/19: Supreme Court oral argument 4/23/20: S. Ct. decision |
| Sturgeon v. Frost | #17-949 | U.S. Supreme Court | State Navigable Water | On March 22, 2016 the U.S. Supreme Court issued a unanimous 8-0 opinion (Sturgeon I) rejecting the 9th Circuit’s interpretation of Section 103(c) of the Alaska National Interest Lands Conservation Act (ANILCA), which held that the hovercraft ban applied to Alaskan land owned by the State, Native Corporations and individuals within the CSU boundaries because it was a nationwide ban. The Supreme Court reversed, holding that the 9th Circuit's interpretation of the statute is implausible and inconsistent with both the text and context of ANILCA, violating a fundamental canon of statutory construction. On remand, the 9th Circuit relied on an implied reservation of water rights, noting that one of the reservation’s primary purposes is to protect fish, and any diminution of water would impact that purpose. Sturgeon argued that this is an indefensible expansion of the reserved water rights doctrine, and a subversion of Alaska’s absolute sovereign right to its navigable waters and the soils under them.Alaska filed an amicus brief in support of the subsequent petition for cert. The state argued that the right to regulate and manage state-owned resources is an essential component of Alaska’s sovereignty.Alaska argued that a federal reserved water right is a limited, non-ownership right to use or preserve a specific volume of water necessary to fulfill the purpose of the reservation, and the idea that Congress implicitly reserved an undefined and unquantified level of instream flow when it created the Yukon-Charley preserve “stretches the federal reserved water rights doctrine beyond all recognition.” On March 26, 2019, the U.S. Supreme Court issued its opinion in Sturgeon II. In 2016, the Supreme Court remanded Sturgeon I to consider the questions of (1) whether the Nation River qualifies as public land under the Alaska National Interest Lands Conservation Act (ANILCA), and (2) if not, does the National Park Service (NPS) have authority to regulate John Sturgeon’s hovercraft activities? The Court held that the answers to both questions is no. Alaska, as other states, has title to and ownership of the lands beneath navigable waters, such as the Nation River, and that title brings with it regulatory authority over navigation, fishing, and other public uses of those waters. The NPS argued that the United States has a title to an interest in the Nation River under the reserved water rights doctrine, analogous to the interest in preserving water levels necessary for the survival of the pupfish at Devil’s Hole National Monument at issue in Cappaert v. United States. The NPS further asserted that Congress’ reservation of the park lands reserved interests in appurtenant navigable waters, with the purpose of safeguarding them against depletion and diversion. The Court disagreed, noting that reserved water rights are usufructuary in nature, are not a title to the river itself, and any right to prevent depletion or diversion of the river is unrelated to the regulatory ban on hovercrafts. Notably, the Supreme Court acknowledged: “If Sturgeon lived in any other State, his suit would not have a prayer of success.” The key issue was how to interpret the language and intended purposes of ANILCA, which made the inholdings of the NPS land in Alaska, including the navigable waters of the Nation River, the exception to the nationwide ban on hovercrafts in NPS parks | 11/5/18: Oral Argument before the Supreme Court 3/26/19: S.Ct. decision in Sturgeon II |
| Utah v. Environmental Restoration LLC et al. | 2:17-cv-866 | U.S. District Court for the District of Utah | Abandoned Hard Rock Mines | On July 25, 2018, the federal defendants filed a Motion to Dismiss the state and tribal claims for lack of jurisdiction over the CERCLA, RCRA, CWA, and tort claims. On February 28, 2019, the Special Master denied the motion. The DOJ argued that the court lacked jurisdiction to hear the claims due to the sovereign immunity of the United States, asserting that the waiver provisions of the statutes did not apply to EPA’s actions in this case. The Court disagreed, finding that EPA qualified as an operator, arranger, and transporter under CERCLA’s waiver of sovereign immunity; that the state and tribal plaintiffs were entitled to discovery regarding EPA’s discretionary actions for the tort claims; and that the RCRA and CWA claims dealt with facts in dispute, and the federal defendants could file a motion for summary judgment after jurisdictional discovery. Subsequent motions to dimiss from other parties were largely denied, and after the Answers were filed, on June 5, 2019, the Court issued a scheduling order and set the scope of discovery. On October 4, 2019, Environmental Restoration LLC filed interlocutory appeal on whether NM or CO statute of limitations applied (potentially impacting claims of 300 Allen v. US plaintiffs and the scope of discovery) BACKGROUND: On July 31, 2017, Utah filed a complaint for damages against EPA and various companies related to the 2015 Gold King Mine spill. The lawsuit alleges negligence and other claims to recover costs related to the cleanup and compel the mine owners and EPA contractors to investigate and pay for cleanup, and collect civil penalties for violations of the Utah Water Quality Act and the Utah Solid and Hazardous Waste Act. Utah filed an amended complaint on January 4, 2018 to add an EPA contractor as a defendant. Utah is negotiating with EPA over damages. This case has been consolidated with the New Mexico and Navajo Nation cases for pre-trial proceedings. (MDL-2824) | 7/31/17: Utah filed complaint against EPA 4/4/18: MDL for pre-trial proceedings 7/25/18: EPA filed MTD 2/28/19: MTD denied 10/4/19: Environmental Restoration LLC filed interlocutory re applicable SOL 1/31/20: status conference on discovery and briefs 9/1/20: Court granted Utah's motion to dismiss its claims against EPA and certain contractor parties |
| IN RE: Gold King Mine Release in San Juan County, Colorado | 1:18-md-2824 Interlocutlory appeals: 19-02197 (agrued Jan2021) 21-02047 (voluntary dismissal) | U.S. District Court for the District of New Mexico 10th Circuit Court of Appeals | Abandoned Hard Rock Mines | BACKGROUND: In May and August 2016, New Mexico and the Navajo Nation filed lawsuits in the U.S. District Court in New Mexico against the EPA and mining companies for injuries relating to releases of heavy metals and waste from the Gold King Mine and Sunnyside Mine, requesting relief under CERCLA, RCRA, CWA, and various tort claims. The two cases were consolidated in November 2016. On June 19, 2018, a Special Master was appointed. (MDL-2824). The Court found that EPA qualified as an operator, arranger, and transporter under CERCLA’s waiver of sovereign immunity; that the state and tribal plaintiffs were entitled to discovery regarding EPA’s discretionary actions for the tort claims; and that the RCRA and CWA claims dealt with facts in dispute. Discovery and motions continued, with several parties settling their claims in late 2020 and 2021, and motions for partial summary judgment resolving various issues. In March 2022, New Mexico and the Navajo Nation were granted a stay of the claims against the U.S. for settlement negotiations. | 5/23/16: New Mexico v. EPA filed 8/16/16: Navajo Nation v. EPA filed 11/28/16: NM and NN cases consolidated 2/13/17: EPA Motion to Dismiss consolidated NM and NN cases 4/4/18: MDL for pre-trial proceedings 9/1/20: Court granted Utah's motion to dismiss its claims against EPA and certain contractor parties 1/20/21: 10th Cir. appeal argued (Allen v. Environmental Restoration, 19-02197) 6/14/22: NM, NN, and US EPA signed a settlement agreement; payment pending 7/12/22: Court granted motion to stay NM and NN claims against the US, pending settlement completion 12/30/22: NM and defendant contractors settled the final NM claims 1/24/23: NN noted that the Phase I trial would only include the NN claims against defendant contractors and would require an estimated 3 weeks to complete 3/3/23: UT case remanded to Utah Dist. Ct. (closure pending supervision of defendant contractor payment of settlement) |
| Texas v. New Mexico and Colorado | #22O141 | U.S. Supreme Court | Rio Grande Compact | On February 9, 2026, the Special Master issued a Fourth Interim Report recommending that the U.S. Supreme Court enter the new Compact Decree, also called the Effective El Paso Index Decree (EEPI) Decree. The EEPI Decree clarifies Texas’ Compact apportionment through use of the Effective El Paso Index, which ties Texas’ apportionment to quantifiable hydrologic conditions as measured at gaging stations along the river. The index has two components. First is the index obligation, which is the annual amount of water Texas is entitled to receive. It is calculated using a two-year regression analysis comparing historical releases from Caballo Dam with net stream flows at the El Paso Gage during the D2 period. The second part is the index delivery, or the actual amount of water that passes through the El Paso Gage each year, adjusted to account for Mexico’s treaty water, excess flows, and Texas depletions about the gage. The Special Master explained that a precise match between obligation and delivery is unlikely in any given year, so the decree contemplates annual departures. When the Index Delivery falls short of the Index Obligation, a Negative Index Departure accrues against New Mexico. The Compact Decree permits New Mexico to carry some level of negative departures, but if accumulated shortfalls exceed specified limits, New Mexico must take water management actions. One available remedy is a water transfer between the Elephant Butte Irrigation District (New Mexico) and the El Paso County Water Improvement District No. 1 (Texas) executed through agreements involving the United States and both irrigation districts. The Compact Decree also establishes a protected baseline operating condition to ensure long-term viability of the Rio Grande Project. Critically, the Compact Decree does not impose obligations on the United States. The Special Master concluded that it fully resolves the Compacting States’ dispute, falls within the Court’s subject matter jurisdiction, is consistent with and furthers the objectives of the 1938 Compact and other federal law, and represents a fair and reasonable settlement. He noted that the Index approach mirrors the same methodology already embedded in Articles III and IV of the Compact, and that it achieves a 57%-43% apportionment of Project supply consistent with the long-standing Downstream Contracts. He also recommended that the Court enter the Decree of Dismissal of the United States’ claims and New Mexico’s counterclaims, which New Mexico and the United States jointly requested and to which neither Texas nor Colorado objected. The Supreme Court entered the Decree on May 26, 2026, and subsequently dismissed the case. -- BACKGROUND: In 2013, the state of Texas filed a lawsuit in the United States Supreme Court against the states of New Mexico and Colorado alleging that New Mexico is violating the 1939 Rio Grande Compact, which governs the distribution of Rio Grande water among the three states. New Mexico denies this allegation. The United States filed a motion to intervene on the grounds that the case affects the Department of Interior’s management of the Reclamation’s Rio Grande Project, its calculation of diversion allocations, and its responsibility to deliver water to intended Project beneficiaries and to Mexico pursuant to Treaty. On August 29, 2025, New Mexico, Texas, Colorado and the United States filed a package of settlement agreements with the Special Master and requested a dismissal of the case. Under the agreement, New Mexico is obligated to reduce depletions by 18,200 acre-feet per year (AFY) within ten years by permanently retiring groundwater rights, with a minimum of 9,100 AFY reductions within five years. New Mexico must provide annual reports detailing its progress toward meeting the depletion reduction obligation until it is fully satisfied. The agreement also establishes enforceable hydrologic conditions, which must be reflected in a Lower Rio Grande Water Management Plan (LRG Plan). The LRG Plan must include actions to (1) satisfy the depletion reduction obligation; (2) close the Lower Rio Grande Basin; (3) maintain an Upper Valley Diversion Ratio (UVDR3) above 0.79; (4) achieve stable or gaining aquifer levels when surface water releases from Caballo Reservoir are above 400,000 AF; and (5) actions to limit present and future depletions from domestic wells. | 1/8/13: Texas filed its complaint 2/27/14: United States Motion to Intervene 3/5/18: S. Ct. decision to allow US to intervene 12/21/18: U.S. Motion for Judgment on the Pleadings 12/26/18: Texas and New Mexico motions for partial judgment 4/2/19: Hearing on motions before Special Master 11/5/20: Texas, U.S., and New Mexico's respective partial MSJs filed 12/22/20: responses to partial MSJs filed 3/9/21: Partial MSJ hearing 5/21/21: Order granting and denying various MSJ issues 8/19/21: Texas Motion for Continuance of Trial (COVID concerns) October - November 2021: First half of split trial 1/9/23: Proposed Consent Decree (settlement agreement) unsealed 7/24/23: Special Mater's Recommendation to the Supreme Court to approve the Consent Decree 10/6/23: United States Exception to the Special Master's Recommendation 12/4/23: TX, NM, CO joint reply to the Exceptions 12/11/23: 22 states filed an amicus brief (including AK, AZ, ID, KS, MT, NE, OR, SD, UT, WY) 3/20/24: Oral argument 6/21/24: S. Ct. opinion, denying the settlement 8/29/25: TX, NM, CO, Reclamation settlement package submitted to the Special Master 2/9/26: Special Master recommended the EEPI Decree 5/26/26: S. Ct. entered the recommended EEPI Decree 6/8/26: S. Ct. dismissed claims with prejudice |