Increase in Water Battles Among States Seen, Cruden Says

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By Paul Stinson

March 30 — The U. S. Supreme Court is seeing an unprecedented number of original jurisdiction cases concerning water allocation, and that trend is likely to continue, a top Justice Department official told conference attendees March 30.

“What I was stressing is that I am seeing more original jurisdiction water cases than I have in the past,” John C. Cruden, assistant attorney general for environment and natural resources, told Bloomberg BNA on the sidelines of the 34th American Bar Association Water Law Conference in Austin, Texas.

Cruden delivered a keynote address on ground and surface water conflicts waged before the Supreme Court.

“I believe we’re going to see more of these because there are so many of these Republican Rivers and Colorado Rivers that are multiple state issues,” Cruden said in his address, referring to two river systems that span multiple states and have sparked conflicts over how the water should be allocated.

Quantity, Not Quality

“These cases reflect states’ concerns about water as a resource issue and they’re bringing actions in the Supreme Court to protect water as a resource for them,” he said.

Cruden said the influx of state-versus-state cases is unlikely to taper off any time soon.

“I think it can be a trend in the future because every state no matter where you are really now recognizes the extraordinary importance of water not just as something we would think of as a pollution issue but also literally as a resource for irrigation, drinking water, recreation and to keep oysters alive,” he said.

Posing the question as to whether a recent uptick in original jurisdiction water cases amounted to the “new normal” Cruden’s presentation referred to four water-related cases are currently pending before the nation’s high court, Montana v. Wyoming (2016 BL 85322, U.S., No. 137, ORIG., 3/21/16), Texas v. New Mexico (U.S., No. 141, ORIG., 1/8/13), Florida v. Georgia (U.S., No. 142, ORIG., 6/19/15) and Mississippi v. Tennessee (2015 BL 206220, U.S., No. 143, ORIG., 6/6/14).

Cruden told Bloomberg BNA such state water concerns aren’t limited to drinking water, pointing to the Florida v. Georgia case, in which Florida contends the state’s oyster industry is being adversely impacted as a result of less water flowing into their state .

Jurisdiction of Clean Water Rule Not Set

Acknowledging the conference’s earlier panel discussing the Clean Water Rule, also known as the waters of the U.S. rule, Cruden said “we’re still working our way through who has jurisdiction.”

Regarding litigation surrounding the rule (RIN 2040-AF30), issued in June 2015 by the Environmental Protection Agency and U.S. Army Corps of Engineers, Cruden gave an overview of the legal challenges to the rule in multiple courts. The federal courts, he said, are “all over the place,” and most are waiting for the full U.S. Court of Appeals for the Sixth Circuit, which stayed the rule, to issue an opinion on the appropriate venue for such challenges .

In February, a three-judge panel of the court ruled in a fractured opinion that it is the proper venue for hearing challenges to the rule .

Juxta-Opposition

The question becomes relevant, Cruden said, because the federal government took the position that the Sixth Circuit has jurisdiction over the case. Opponents to the rule have argued that challenges should be heard in the various federal district courts.

“We are arguing that the very court that stayed us has jurisdiction,” said Cruden. “Our opponents—who actually got the stay—are saying that that court does not have jurisdiction, so it’s a really unusual juxtaposition of opposition.”

“What’s happening right now is the Sixth Circuit is going to have to decide whether or not they want to take the case en banc,” he said.

“Here we are and we’re getting 10 months since the rule came down last year and we still haven’t figured out which court is going to decide,” he said.

To contact the reporter on this story: Paul Stinson in Austin, Texas, at pstinson@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com