Last week,  the Court of Appeals of Texas, Fourth District handed down Bragg v. Edwards Aquifer Authority, a decision that anyone interested in takings or water law ought to read (the Lexis cite is 2013 Tex. App. LEXIS 10838).  The Braggs had brought a takings claim alleging that the Edwards Aquifer Authority’s regulatory restrictions on the Braggs’ groundwater use amounted to a regulatory taking.  The appellate court agreed and remanded for an assessment of damages.  But I suspect—and hope—the case will first be appealed to the Texas Supreme Court.  It is a deeply flawed and harmful decision with mistakes that additional appellate review hopefully will fix.

Understanding those problems requires a little bit of factual context.  The Edwards Aquifer is a large and highly productive aquifer in central Texas.  It provides an important source of water for municipal and agricultural users, and its discharges …

Last week brought big news in the water quality world.  On July 10, American Rivers, the Conservation Law Foundation, the Natural Resources Defense Council, and several other environmental groups filed “residual designation authority” petitions for stormwater discharges across EPA Regions 1 (New England), 3 (mid-Atlantic), and 9 (southwestern states and California).  That may sound like an obscure and technical act, but here’s why it’s actually a very big deal.

For years, urban stormwater runoff has been one of the United States’ greatest unsolved water quality challenges.  Urban runoff is second only to agricultural runoff as a source of water quality impairment, and on a per-acre basis, urban development is generally more damaging to water quality than agricultural use.  But EPA has struggled to regulate urban stormwater runoff.  For years, EPA barely regulated urban stormwater runoff at all.  The 1987 Clean Water Act amendments compelled EPA …

Reposted from Environmental Law Prof Blog.

A standard environmental history of American dams unfolds something like this: As a nation, we had a long love affair with dams.  And while they helped our nation grow into an industrial power, the environmental side-effects were immense: lost forests and farmland, drowned canyons, and, perhaps most importantly, devastated fisheries.  Yet even after some of those consequences became apparent, the story goes, dam-building marched on, powered by bureaucratic inertia and the seemingly unstoppable engine of pork-barrel politics.  Finally, in the 1980s, we stopped, but by then we had built approximately one dam for every day of our national existence.  As former Secretary of the Interior Bruce Babbitt once put it, “we overdosed.”  We’re now starting to take dams out, and those dam removals often lead to dramatic environmental improvements.  But, in the standard narrative, the removals aren’t coming nearly …

Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear.  This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska.  That isn’t atypical; critical habitat designations often generate controversy.  But one might wonder why.

The ESA’s only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition.  Specifically, section 7 of the ESA prohibits federal agencies from taking any action “likely to… result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.”  In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the …

In the 2005 Energy Policy Act, Congress recognized that energy and water supply issues are deeply intertwined, and required the Department of Energy (DOE) to report on their nexus and make recommendations for future action within two years. (42 USC 16319).  DOE started this important work, but never finished it. 

DOE’s initial report, issued in 2007, hinted at the complexity and seriousness of the energy-water nexus.  It discussed both how supplying energy requires water and supplying water requires energy.  For example, thermoelectric power plants (primarily coal-fired, natural gas-fired and nuclear plants) account for about 40% of all freshwater withdrawals in the United States, roughly equal to the amount of freshwater withdrawn for irrigated agriculture.  For its part, water supply and treatment consume about 4% of the electricity generated domestically, and activities associated with water use (irrigation, water heating, clothes washing and drying) consume even more. 

Yet …

Cross-posted from Environmental Law Prof Blog.

Last week, a federal district court in Virginia decided an urban stormwater case that may ultimately have far more significance than the Supreme Court’s more widely-watched decision in Los Angeles County Flood Control District v. Natural Resources Defense Council.  The case is Virginia Department of Transportation v. U.S. Environmental Protection Agency, and it involves a challenge to a proxy TMDL for Accotink Creek, a Potomac River tributary in northern Virginia.  On its face, that statement may not sound particularly intriguing or important, but it is, and a little background is in order.

Section 303 of the Clean Water Act requires states to identify waterways that do not meet water quality standards, and to develop “total maximum daily loads,” or TMDLS, for those waterways.  In essence, TMDLs are pollution budgets.  They usually identify which pollutants are causing impairment, and they …