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Flashcards in Terms Deck (114):
1

303(d) Classification

A part of the WQS (Water Quality Standards) system.
If listed, on the 303(d) list, it is considered a quality-limited water body.
Includes waters that are believed to be threatened that are likely to become impaired for specific uses (i.e. not meeting WQ standards) by the next time the 303(d) list is due.
42,000 listed nationwide
Depends on TMDLs.
It is a section of the Clean Water Act.

2

404 permit

If you are discharging dredged or fill materials into the navigable waters you are subject to 404 permit requirements.
Section 404: Wetlands are regulated by the US Army Corps of Engineers or authorized state program (only Michigan and New Jersey).
EPA retains veto power over Corps permits
Exception: Don't need permit if you're farming, siviculture, and ranching activities like plowing.

3

404 Permit Requirements

Must show:
No practicable alternative
No significant adverse impacts on aquatic resources
All appropriate and practicable mitigation will be employed
Proposed activity will not violate other laws

4

5th Amendment

(Article V of BoR)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
“Takings clause”

5

Addition

"Addition" is not defined in the CWA. Case law: in general, an addition is the non-natural conveyance of pollutants to a waterbody, even if that waterbody already contains the particular pollutant in question.

CWA says:
(1) an “addition” (2) of a “pollutant” (3) to jurisdictional waters (“navigable waters,” “contiguous zone,” or the “ocean”) (4) by a person (5) from a “point source.”

6

Background Principles

Courts look to states' background principles in determining what is a regulatory taking.
Regulation prohibiting a use that is a nuisance under state law, even if it severely impacts a particular property owner or renders the property valueless, does not work a regulatory taking.

7

Biological Opinion

In Klamath Irr Dist v. U.S. the BoR reduced deliveries to contracted parties because of BiOp (Coho and Suckers)
•Expert agency (FWS or NMFS) determines whether proposed action would place species in jeopardy •Jeopardy: if the action “reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild....”

Two outcomes:
•Two outcomes for the biological opinion. –If “not likely to jeopardize,” project can be completed, with incidental take statement. –If “jeopardy,” expert agency must, to degree possible, suggest reasonable and prudent alternatives to avoid jeopardy. Action agency may then (1) apply alternatives, (2) cancel the project, or (3) ask the Endangered Species Committee (the God Squad!) for an exception.

8

Bureau of Reclamation

The United States Bureau of Reclamation (USBR), and formerly the United States Reclamation Service (not to be confused with the Office of Surface Mining Reclamation and Enforcement), is a federal agency under the U.S. Department of the Interior, which oversees water resource management, specifically as it applies to the oversight and operation of the diversion, delivery, and storage projects that it has built throughout the western United States for irrigation, water supply, and attendant hydroelectric power generation. Currently the USBR is the largest wholesaler of water in the country, bringing water to more than 31 million people, and providing one in five Western farmers with irrigation water for 10 million acres of farmland, which produce 60% of the nation's vegetables and 25% of its fruits and nuts. The USBR is also the second largest producer of hydroelectric power in the western United States.

9

CA Ag Water Use Percentage

43%

10

Calif. Pub. Res. Code §10000

Applies to priority streams.
•“The Director of Fish and Game shall identify and list those streams.... throughout the state for which minimum flow levels need to be established...”
•~22 streams on the list
•“Upon completion of the proposed streamflow requirements .... The Director shall transmit these ... requirements to the State Water Resources Control Board.” •The State Water Board shall consider these requirements when exercising its water rights authority

11

California Wild and Scenic Rivers Act

withdraws nine rivers and some of their tributaries from most further development. Calif. Pub. Res. Code 5093.54-5093.545.

12

Clean Water Act Rule

New regulation that came from three major cases.
The Clean Water Rule: Definition of "Waters of the United States”
–Published June 29, 2015, effective on August 28, 2015
–Stayed by the 6th Circuit on Oct. 9, 2015

Three cases:
•U.S. v. Riverside Bayview Homes, Inc, 474 U.S. 121 (1985) •SWANCC v. COE, 531 U.S. 159 (2001)
•Rapanos v. US, 547 U.S. 715 (2006)

•US EPA and US COE draft rule incorporating guidance from Kennedy...
•Draft pomulgated April 21, 2014.
•Final Rule published June 29, 2015, effective on August 28, 2015.
•Stayed by the 6th Circuit on October 9, 2015.

Trump is trying to rescind or revise it

13

Colorado River Aqueduct

Delivers water from the Colorado River near Parker Dam to Los Angeles. Runs just north of the Salton Sea.
Construction was completed in 1939, when the Owens Valley could no longer sustain LA's water needs.
242 miles long.

14

Conjunctive Use

•Transfer in time – storage of water in groundwater
•Kern Water Bank group will cover during their presentation

15

Conservation

ESA definition: use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.

All fed agencies work toward conservation of listed species.

16

Consultation Process

ESA
•Action agency asks what species may be impacted –If listed species, action agency must complete a “biological assessment”–If not, then done. •Biological assessment determines whether listed species would be likely to be affected. –If yes, expert agency (FWS or NMFS) completes a “biological opinion”àformal consultation–If no, and expert agency confirms the “not likely to adversely impact” finding, then done.
•Two outcomes for the biological opinion. –If “not likely to jeopardize,” project can be completed, with incidental take statement. –If “jeopardy,” expert agency must, to degree possible, suggest reasonable and prudent alternatives to avoid jeopardy. Action agency may then (1) apply alternatives, (2) cancel the project, or (3) ask the Endangered Species Committee (the God Squad!) for an exception.

17

Critical Habitat

•Designated upon listing (theoretically)
•Defined:
Area occupied by the species, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection;
–Specific areas outside the geographical area occupied if essential for the conservation of the species.

•Caveats:
–Only affects federal lands or federally authorized activities, and only affects activities that destroy or adversely modify habitat.
–Very resource intensive for FWS (up to $1 Million), so made lowest priority among listing actions.

18

Cuyahoga River

In Ohio. Set on fire in 1969, right before the Clean Water Act passed in 1972.
Caused by sewer and waste disposal into the river. Sparks from a passing train ignited oil slicked debris.

19

CVP (inc. general operating scheme)

Central Valley Project.
Reaches 400 miles from the Cascades near Redding to the Tehachapi mountains near Bakersfield in the South. Consists of 20 dams and reservoirs, 11 powerplants and 500 miles of major canals/conduits/tunnels etc.
Manages ~9 mil ac ft of water.
Delivers 7 mil acft annually for ag, urban and wildlife use
Dedicates 800,000 acft per year to fish and wildlife and their habitat.
1992 CVP improvement act amended the Act to include protection, restoration, and enhancement of fish, wildlife, and associated habitats in CA's central valley and Trinity river basins.
CVPIA was opposed by ag people.

20

CVP Transfers

•Lots of transfers b/t CVP contractors! –Over 2000 b/t 1992 and 2002
•Only need reclamation approval. Why?
•Req’ts:
–availability of surplus water
–consistency with the transferor’s BOR contract
–consistency with federal reclamation law
–one year only
•Under the Central Valley Project Improvement Act, may transfer out
–None yet

21

CWA

Clean Water Act.
1972, amended 1977
Goals:
-Restore and maintain chemical, physical, and biological integrity of the nations waters
-Discharge of pollutants into navigable waters be eliminated
-Attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water by July 1983"

22

CWA 401--State Certification

Federal license or permit requires state to certify that a project with meeting state WQ goals and basin plans.
FERC licenses require this i.e. hydropower projects.

23

CWA Cooperative Federalism

•“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution”
–States enforce
–States manage construction grant program
–States implement permit programs

Feds will enforce if state doesn't, also if there is a NPDES violation.

24

CWA Enforcement

States enforce.
Farms have been written out of the CWA, nonpoint sources are subject to enforcement action under fed law regardless of their contribution to failure to meet WQS.
States enforce and implement permit programs.
If NPDES permit is violated: state may enforce, EPA may enforce.

25

CWA Savings Clause

"Authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. It is the further policy of Congress that nothing in this Act shall be construed to supersede or abrogate rights to quantities of water which have been established by any State.”

26

Discharge

Any addition of pollutant to a water body.

27

Dredged material

Material that is excavated or dredged from waters of the US. Must originate from navigable waters and be replaced back in the navigable waters.

28

EA

Environmental Assessment
Determines if there will be a significant environmental impact. If not, agency action. If yes, EIS is required.

29

Eel River dam at Dos Rios

First major dam defeated in California
– Eel River dam at Dos Rios (late 1960s)
•Stopped by coalition of environmentalists, Native Americans, and local ranchers
•Leads to CA Wild and Scenic Rivers Act, banning dams and reservoirs on particular rivers

Birth of modern environmental movement.

30

EIS

Environmental Impact Statement
Required by NEPA

31

EIS Threshold Question

EIS required for major, federal, actions which could significantly affect the human environment.–An action is federal if a federal agency carries it out, approves it, or funds it but retains control.

32

Elements of a NPDES permit

Natl. Pollutant Discharge Elimination System.
-Effluent limits (technology based)
-Best management practices
-Compliance schedules
-Monitoring requirements
-Reporting requirements
-Reopening clause

33

Endangered

In danger of becoming extinct throughout all or a significant portion of its range.

34

Threatened

Likely to become endangered in foreseeable future.

35

EPA 404 Veto

EPA may veto the discharge permitted by 404 if the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas."
States may veto by developing more stringent regulation under CWA 401.

36

ESA

Endangered Species Act.
Nixon signed in 1973.
"The most comprehensive legislation for the preservation of endangered species ever enacted by any nation."-Tenn. Valley Auth. v. Hill
Results: Fewer species have gone extinct than expected w/out protection. Changes in species status are more likely to be improving than declining.
Expensive, litigation driven and often presented as draconian.

37

ESA Section 10

1982 Amendments
(A) Allows any act otherwise prohibited by Section 9 for scientific purposes or to enhance the propagation or survival of the affected species.
(B) Incidental take permit. Only given in conjunction with Habitat Conservation Plan.
-Any taking otherwise prohibited by section 9 if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.
-Different than (but basically the same as) an ITS under Section 7.

-Experimental Pop. designation

38

ESA Section 11

Allows citizen suits to enforce the protections offered by the Act.

39

ESA Section 9

Prohibits both direct harm and indirect harm via habitat modification. Take prohibitions.

40

ESA Section 7

Prevents fed. agencies from either jeopardizing listed species or degrading their habitat.

41

Establishment of WQS

–EPA has developed acceptable Water Quality Criteria. –States can go lower if they show a “scientific rationale” for it.
•Must provide the same degree of protection.
–May not consider costs at this stage. Science only.

42

Federal instream flow protection

F&G Code Section 5937
•“The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around, or through the dam to keep in good condition any fish that may be planted or exist below the dam.”
No enforcement, maybe no mechanism?
NRDC v. Patterson helped w/Friant Dam issues.
PTD, creates ongoing perpetual responsibility for adequate stream flows.

43

FERC

Federal Energy Regulatory Commission

44

Fill material

Material placed in waters of the US where the material has the effect of:
Replacing any portion of a water of the US with dry land
or changing the bottom elevation of any portion of a water of the US

45

Flood Control Act of 1944

Flood Control Act of 1944 (P.L. 78–534), enacted in the 2nd session of the 78th Congress, is U.S. legislation that authorized the construction of numerous dams and modifications to previously existing dams, as well as levees across the United States.

46

Friant Dam

* Purposes: irrigation and flood control
* Fills Madera Canal, runs to the Chowchilla River
* Irrigates almost a million acres
Huge watershed impacts
* Avg discharge of 3.3 MAF
* Total loss of river flows over ~60 miles
* Salmon hab reduced from 6000 to 300 miles
* Hydrograph totally squashed post dam
* 10/16 native species extinct

47

FWS

Fish and Wildlife Service
Agency of the Dept. of Interior dedicated to the management of fish and wildlife, and natural habitats.

48

God Squad

The Endangered Species Committee (God Squad)
* Can exempt a project that they believe will cause jeopardy if..
* no reasonable and prudent alternative to the action
* benefits of the action outweigh benefits of alternative courses of action and is the action in public interest
* action is of regional or national significance
* neither the Fed agency concerned nor the exemption applicant made any irreversible or irretrievable commitment of resources
* Members: Sec of Ag, Sec of Army, Chairman of council of economic advisors, administrator of US EPA, Sec of Interior, Administrator of NOAA, One person from each affected state (governor appointed)
* Committee has acted only 3 times

49

Harm

act which actually kills or injures wildlife, including significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

50

HCP

Habitat Conservation Plan
•Allows a landowner to legally proceed with an activity that would otherwise result in the illegal take of a listed species, by getting ITP
•Includes:
–assessment of likely impacts to listed species
–monitoring, minimizing, and mitigating efforts by the applicant, plus funding
–alternative actions to the taking the applicant analyzed –additional measures as necessary or appropriate.
(A) The taking will be incidental;
(B) The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such takings;
(C) The applicant will ensure that adequate funding for the conservation plan and procedures to deal with unforeseen circumstances will be provided;
(D) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and Any other necessary measures are met.

51

Hetch Hetchy Project

Located in Yosemite on Tuolumne River
Delivers water to SF
John Muir fought against it

52

Impact of dams

•Of 31 California salmonid taxa, 65% are in danger of extinction within the next century
•Of all 129 California inland fish species, 56% face increased risk of extinction due to major dams.

53

Impediments to water transfers

–What water do you have to transfer?
–How are water transfer different than other uses?
–Wheeling charges
–Administrative burden (high transactions costs)
–History...

54

Instream Uses

•Navigation
•Fish and Wildlife Habitat
•Recreation
•Groundwater recharge (from streambed) •Scenic/aesthetic

55

Instream flows

Water naturally in, or directed in to a stream.

56

Issuing NPDES Permit

1.Draft permit is prepared
2.Public hearing on the draft may be called
3.Final permit issued
4.If permittee or other citizen objects, can have hearing before ALJ; that decision can be appealed to the Administrator

57

ITP

Incidental Take Permit
•Only given in conjunction with Habitat Conservation Plan (HCP) •Any taking otherwise prohibited by section 9 if such taking is incidentalto, and not the purpose of, the carrying out of an otherwise lawful activity. •Different than (but basically the same as) an ITS under section 7

Issues if the director finds: (A) The taking will be incidental; (B) The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such takings; (C) The applicant will ensure that adequate funding for the conservation plan and procedures to deal with unforeseen circumstances will be provided; (D) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and Any other necessary measures are met.

58

ITS

Incidental Take Statement
•Allows take that will not jeopardize the species.
•May require changes to the project.
•Includes provisions for total allowed take, monitoring, mitigation, reporting, and procedures if take limit is exceeded.

59

CA ESA Listed Species

118 listed animals and 183 listed plants in California.
Frogs, whales, wolf, kangaroo rats, lots of butterflies, beetles, abalone, albatross, fairy shrimp, salamanders, salmon

60

LA Aqueduct

Delivers water to LA from Owen's Valley.
Mulholland-supervised construction went from 1908-1913.
To move more water, the aqueduct 'Mono Basin Extension' was completed in 1930.
A second LA Aqueduct was built in 1974.

61

Listing process

•The listing (or delisting) process begins in 1 of 2 ways: 1.Agency of own accord 2.Petition from the public •Question to be answered: is the species... –Endangered (in danger of becoming extinct throughout all or a significant portion of its range) –Threatened (likely to become endangered in foreseeable future)
•Within 90 days of receiving petition, agency must “make make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” Publish findings in FR. –If yes, agency begins a status review for the species. –If no, agency can deny the petition. •If yes, within 12 months of receiving the petition, the agency must make one of three findings
1.The petitioned action is not warranted 2.The petitioned action is warranted (publish general notice and the complete text of a proposed regulation to implement such action (starts the process from the internal process slide) 3.The petitioned action is warranted, but that— –Too busy doing other listing proposals, and... – expeditious progress is being made evaluating those proposals.#3 = “Warranted but precluded,” and then agency treats as if resubmitted every year. •All decisions, except that listing is warranted (b/c not final!), are subject to judicial review
•Endangered – automatic protections. •Threatened species – discretion of the agency through the listing process (16 USC § 1533(d), which is ESA Sec. 4(d)) –Services “shall issue such regulations as [it] deems necessary or advisable to provide for the conservationof such species.’’ 16 U.S.C. § 1533(d). –Termed 4(d) regulations –Default is, by regulation, the same level of protection –But, Services may allow certain activities to take threatened species. •Why? What species?

62

Long term transfers

•>1 year
•Requires:
–notice and opportunity for a hearing
–opportunity for review by the Department of Fish and Game,
–No substantial injury to any legal user of water and no unreasonably effects on fish, wildlife, or other instream beneficial uses.

63

Magna Carta

1297
charter agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215.[b] First drafted by the Archbishop of Canterbury to make peace between the unpopular King and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons.

64

Major federal water players

BoR
Army Corps of Engineers
Dept. of Energy--Ferc
USFW
Natl. Marine Fisheries Service

65

Mitigation

•Avoidance– permit may be issued only for least environmentally damaging practicable alternative •Minimization - appropriate and practicable steps to minimize the adverse impacts will be required through project modifications and permit conditions •Compensation – appropriate and practicable compensatory mitigation required for unavoidable adverse impacts which remain after all appropriate and practicable minimization has been required.

66

Modern CA public trust doctrine

•Marks v. Whitney, 6 Cal. 3d 251 (1971), key holding: “Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. ”
Key holding of Marks v. Whitney: “The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. . . . one of the most important public uses of the tidelands . . . is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area. It is not necessary to here define precisely all the public uses which encumber tidelands.”

67

CA Pub Trust post Whitney

Public right to assert •Covers tidelands and other navigable waters •Covers preservation of lands in a natural state •Food and habitat for birds and marine life •Favorably affects on the scenery and climate of the area

68

Mono Lake

•1920 - 1934, LA purchased lands riparian to creeks feeding Mono Lake
•1934, city brought eminent domain proceedings for condemnation of rights of Mono Lake Landowners •1940, city applied for permits to appropriate the waters of four Mono Lake tributaries; water board grants, LA opens aquaduct

69

Navigable Water

Waters of the US, including territorial seas.

70

NEPA

Natl. Environmental Policy Act.
Statute passed by congress in 1969, signed by Nixon in 1970.
Product of environmental movement.
•11,000 EIS statements in first 9 years
•Over 1000 of those litigated
•Of the 1000, ~ 20% resulted in injunction
•By the late 1980s, 400-500 EISs per year, ~50K EAs •Focused most on highways, water projects, nuclear power, and public lands.
•Three major sections
–Statement of National Policy
–President’s Council on Environmental Quality
–Environmental Review (EA/EIS) Requirements

71

NEPA Process

–Decide if you need an EIS, if so, prepare a draft, publish it for review, and then address the comments. Publish a final EIS, make a decision, and then proceed (or not).
Clipped flowchart to Evernote.

72

NMFS

Natl. Marine Fisheries Service.
Part of NOAA.
Can be an expert agency along with NFWS developing biological opinions. Can also be an action agency: building, approving a permit, etc.

73

Nonpoint Sources

•No CWA definition of nonpoint sources.
•Defined by exclusion—anything not considered a “point source” according to the act and EPA regulations. •Caused by runoff of precipitation (rain and/or snow) over or through the ground

74

Nonutilitarian

Reason to protect species diversity.
–Nonutilitarian
•Esthetic –Beauty of the natural world, hiking, bird watching, pictures.
•Moral/Ethical –Importance of continuation of the biotic community. –Belief in right of nature to exist –Religious beliefs around creation

75

NPDES (402) Permit

Natl. Pollutant Discharge Elimination System.
Permits set discharge limits.
•Created by state, if authority has been delegated
•5 year review period, in theory
•Only ratchet up, never down.

76

Owens Valley

Original water source for LA. Delivered through LA Aqueduct.

77

Physical Taking

emporary or permanent physical occupation for public purpose.
–a per se taking.
–Gov’t makes or authorizes (people!)
–Minor/major does not matter
–Loretto v. Teleprompter Manhattan CATV Corp (1982)

78

Point Source

Any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

79

Public Trust Standard

Traditional form:
•Covers only Commerce, Navigation, and Fisheries •Only navigable waterways and tidelands
•Exists in some form in most states

80

Public Trust v. Water Rights

Natl. Audubon Case, Mono Lake Case.
California's first major application of National Audubon firmly
established that the state's foremost responsibility is to fully ascertain
the needs of the public trust and the extent to which appropriative
demands can be made to accommodate those needs.

81

Recovery Plan

Section 4 of ESA.

82

Regulatory Taking

Courts look to background principle to determine what this is.
Regulation or prohibition amounts to a physical taking.

83

Riparian Transfers

Riparian rights = generally not transferrable, except consumptive portion can be transferred with SWRCB approval for instream use under Water Code § 1707. –Can (apparently) give up and let someone appropriate. Duckworth v. Watsonville Water & Light Co., 150 Cal. 520, 526 (1907).

84

Salton Sea

Located directly on the San Andreas fault. Man made.
About 1700 years ago natural flows of the Colorado River were on the high end of a cycle that created a natural lake in the area.
Refer to worksheet.

85

Santa Barbara Oil Spill

–January and February 1969
–3rd largest in US history, 80,000-100,000 barrels
Galvanized CWA in 1972

86

Section 319

•Provides some leverage on nonpoint sources
•Provides funds for states that develop nonpoint source pollution management programs
–Funds allow states to implement NPS management programs under section 319(h).
–Section 319 is a significant source of funding for implementing NPS management programs.
•States may, at their discretion, use 319 funds to develop their own NPS regulatory programs.
–Rare.

87

Section 5937

Fish and Game Code.
“The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around, or through the dam to keep in good condition any fish that may be planted or exist below the dam.”

88

Section 8 of Reclamation Act

Savings clause applies only to irrigation.
“The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around, or through the dam to keep in good condition any fish that may be planted or exist below the dam.”

89

Significant Nexus

Kennedy SCOTUS Judge.
•Corps may assert jurisdiction based on: –Adjacency to navigable-in-fact waters; –For nonnavigable tributaries, must establish significant nexus on a case-by-case basis. •Can cover broadly if similar wetlands

90

Species

any species or subspecies of fish, wildlife or plant and any “distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

91

Spring Run Chinook Salmon

Pre-Friant, the San Joaquin River had the 2nd largest spring run of Chinook Salmon

92

Standing

Argument to convince court to be included as a relevant party to a case. You have "standing" to be included as you were effected or harmed by law or action

93

Stormwater Pollution Prevention Plan (SWPPP)

required to comply with stormwater discharge requirements. NDPES permit required for construction projects over 1 acre.

- Includes SWPPP
- must include: site description, measures that will be employed (at least preservation of existing vegetation when possible)
- erosion is main concern
Produces significant changes in construction practices

94

Structure of the CWA

???

95

SWP (inc. general operating scheme)

One of largest public water and power utilities in world.

Collects water from rivers in N. CA, redistributes south through networks of aqueducts and pumping stations.

70% goes to S. CA and SF Bay area. 30% irrigates CV

Water is pumped 2882 ft over Tehachapi Mountains to reach S. CA.

Main watersheds: Feather River and tributaries. travels to Sac-Sanjoaquin River Delta. pumped into CA Aqueduct, goes south

96

Take

3 types of takings:
- Eminent Domain
-Physical occupation of property
temporary or permanent physical occupation for public purpose
-Regulation of property
regulations amount to physical taking

97

Taking Clause

Fifth Amendment (Article V of Bill of Rights)
.... "nor shall private property be taken for public use, without just compensation".

98

Temp. Changes

SWRCB Temp Changes:
- "any change of point of diversion, place of use, or purpose of use involving a transfer or exchange of water or water rights for a period of one year or less."
MUST
(1) include only the amount of water that the transferor would have consumptively used or stored during the transfer period
(2) not injure any legal user of the water or unreasonably affect fish, wildlife or other instream beneficial uses, and
(3) not contribute to or create overdraft

99

Temp. Urgency Transfer

SWRCB Temp. Urgency Transfer
Approved if....
(1) the permittee or licensee has an urgent need to make the proposed change
(2) the proposed change will not injure any other legal user of water
(3) the proposed change will not result in unreasonable effect on fish, wildlife, or other instream beneficial uses; and
(4) the change is in the public interest.

100

Threatened

Species likely to become endangered

101

Traditional public trust doctrine

Covers only Commerce, Navigation and Fisheries
- only navigable waterways and tidelands
- exists in some form in most states

102

Tribal fishing rights

Many tribes have fishing rights under treaties with the feds
- e.g. Yurok and Hoopa Valley Tribes have a right to harvest salmon in the Klamath Basin
Federal Govt. serves as trustee for these rights
-e.g. increased flows from Lewiston/Trinity Dams to help prevent re-occurance of Ich Parasite

103

US Army Corps of Engineers

20th Century
- lead federal flood control agency
- major provider of hydroelectric energy
- country's leading provider of recreation

1960s - Environmental Concerns

- create many dams, not big ones
- flood infrastructure
- shipping channels

104

Utilitarian

best action is the one that maximizes utility.. ties into public trust doctrine?

105

Water Code Section 1243

(a) The use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water.  In determining the amount of water available for appropriation for other beneficial uses, the board shall take into account, when it is in the public interest, the amounts of water required for recreation and the preservation and enhancement of fish and wildlife resources.

(b) The board shall notify the Department of Fish and Wildlife of an application for a permit to appropriate water.  The Department of Fish and Wildlife shall recommend the amounts of water, if any, required for the preservation and enhancement of fish and wildlife resources and shall report its findings to the board.

(c) This section does not affect riparian rights.

106

Water Code Section 1701

At any time after notice of an application is given, an applicant, permittee, or licensee may change the point of diversion, place of use, or purpose of use from that specified in the application, permit, or license;  but such change may be made only upon permission of the board.

107

Water Code section 1707

Any person entitled to the use of water, whether based upon an appropriative, riparian, or other right, may petition the board for a change for purposes of preserving or enhancing wetlands habitat, fish and wildlife resources, or recreation in, or on, the water.

108

Water Contracts

Contracts between US and other entity for guaranteed delivery of water

109

Water of the United States

established under clean water rule of 2015. waters navigable, ajacent or contributing to navigable waters, sometimes wetlands...

110

Water Transfer

Temporary transfer of water/water right

111

Wetland

land consisting of marshes and swamps, saturated lands

112

Why protect biodiversity?

This is water law not philosophy Karrigan

113

Why transfer water?

–Water Code § 109(a)
•“the growing water needs of the state require the use of water in an efficient manner and that the efficient use of water requires certainty in the definition of property rights to the use of water and transferability of such rights.”

•Policy of state to “facilitate the voluntary transfer of water and water rights where consistent with the public welfare of the place of export and the place of import.”

114

WQS

Water Quality Standard