California Water Views

On November 21, 2023, the Ninth Circuit Court of Appeals issued its decision in Cottonwood Environmental Law Center vs. Edwards addressing various Clean Water Act issues. Its two key holdings were that (1) the district court did not err when it rejected plaintiff’s direct discharge theory and (2) the district court did err when it held that plaintiff did not provide sufficient notice. … 

On November 20, 2023, a panel of the Ninth Circuit Court of Appeals issued its opinion in Idaho Conservation League v. Poe, No. 22-35978. Therein, the Court upheld its previous interpretation of “discharged” in the context of an allegation that a party violated the National Pollutant Discharge Eliminating System (NPDES) permit system under the Clean Water Act. It did so notwithstanding the defendant’s allegation that Supreme Court precedent overruled that interpretation. … 

Deadlines are upcoming related to the multi-district per- and polyfluoroalkyl substances (PFAS) litigation. The relevant settlements are with DuPont, Chemours, and Corteva (collectively, DuPont) and 3M, parties who allegedly manufactured various PFAS chemicals. The currently-pending settlements cover $1.185 billion for DuPont and $10.5-$12.5 billion for 3M.

The litigation is focused on alleged contamination of drinking water caused by DuPont’s and 3M’s alleged manufacture of PFAS chemicals. PFAS are a family of manmade chemicals that are used due to beneficial ...

Providing affordable, safe and reliable water service in California is becoming increasingly challenging. Water service providers must deal with aging infrastructure, increasingly stringent water quality regulations and the threat of more frequent and extreme weather events, such as fires, drought and flooding, due to climate change. Smaller water service providers may struggle with adapting their operations to comply with changes in water quality requirements. These systems, which often rely on a single water source, are less resilient in dealing with contamination or ...

On October 8, 2023, Governor Gavin Newsom signed into law Senate Bill 389 (SB 389), which amended § 1051 of the Water Code to expand the investigatory authority of the State Water Resources Control Board (Water Board). The bill was introduced by Senator Ben Allen of Santa Monica.

While the bill imbues the Water Board with additional investigatory authority to ascertain whether or not a water right is valid, it does not alter the statutory scheme for enforcement should the Water Board determine as part of an investigation that a particular diversion or use of water was not supported by a ...

Managed retreat—the process of moving people and property away from the shoreline—is an unpopular but increasingly accepted response to rising sea-levels. In the inaugural issue of Nossaman’s California Water Views – 2023 Outlook, we discuss the saga of Morro Bay’s efforts to relocate and reopen its wastewater treatment plant farther inland at the direction of the California Coastal Commission. After many fits and starts, the Morro Bay plant opened in February 2023 and cost $161 million to build. The Morro Bay case is relevant because similarly situated coastal ...

Despite efforts to stem increasing cyber threats to water systems around the nation, on October 13, 2023, the United States Environmental Protection Agency (EPA) withdrew cybersecurity mandates put in place by the Biden administration after the 8th U.S. Circuit Court of Appeals July decision to place the mandates on hold while court actions continued.

In an attempt to harden clean water and wastewater treatment facilities from cyberattacks, the administration issued an interpretive memorandum in March 2023, that mandated adding cybersecurity assessments as a regular part of ...

On September 28, 2023, the U.S. Environmental Protection Agency (EPA) finalized its rule requiring reporting of per- and polyfluoroalkyl substances (PFAS). According to EPA’s press release, the rule is intended to “provide EPA, its partners, and the public with the largest-ever dataset of [PFAS] manufactured and used in the United States.”

EPA’s new rule is part of its PFAS Strategic Roadmap, the Biden Administration’s plan to address PFAS, a family of man-made chemicals that are becoming well-known and well-studied based on their ubiquity and resistance to breaking down naturally.... 

In recognition of California’s seventh annual Water Professionals Appreciation Week, we would like to take a moment to highlight the essential role of water professionals and local public water agencies in providing water and wastewater services to our communities. Not just this week, but throughout the year, we appreciate the dedication of the highly trained operators, technicians and other specialists who have continued to make sure our communities have safe and reliable water, wastewater and recycled water services amidst a drought and pandemic. … 

Commonly known as “forever chemicals” due to their ability to persist in the environment, per- and polyfluoroalkyl substances (PFAS) are an emerging contaminant of concern that the United States Environmental Protection Agency is currently promulgating regulations to address. The long-awaited adoption of an enforceable Maximum Contaminant Level for PFAS will bring sweeping changes and challenges to public water systems across the country. We provide insights on the on-going PFAS rulemaking process and what it might mean for the water industry …