Monthly Archives: February 2016

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Utah Public Waters Access Act

Utah Public Waters Access Act “violates” Utah Constitution 4th District judge says; Utah Supreme Court stays ruling pending appeal

Utah Public Waters Access ActThe issue of public access to waters in the state of Utah has become a hot-button issue in the Utah courts recently.  As reported in the Salt Lake Tribune, the issue stems from a ruling from 4th District Judge Derek Pullan that held that “the ‘unfittingly named’ 2010 Utah Public Waters Access Act violates the Utah Constitution by denying the recreating public from a resource that the state must manage in the favor of all Utahns.”

Utah Public Waters Access Act

In 2010, the Utah legislature passed the Utah Public Waters Access Act, which governs access to “public water” in Utah.  Under the Act, “[t]he public may use a public water for recreational activity if the public water is a navigable water or is on public property and the recreational activity is not otherwise prohibited by law.”  The public’s access to “public water” on “private property” is treated differently under the statute.  In relation to access to public water on private property, the statute states that “[a] person may access and use a public water on private property for any lawful purpose with the private property owner’s permission,” but “[a] person may not access or use a public water on private property for recreational purposes if the private property is property to which access is restricted, unless public recreational access is established….”

Under the Utah Public Waters Access Act, “public recreational access is established if the private property has been used by the public for recreational access requiring the use of the public water for a period of at least 10 consecutive years that begins after September 22, 1982; and the public use has been: continuous during the season conducive to the recreational access; open and notorious; adverse; and without interruption.”  However, “[a] property owner’s overt act intended to interrupt uninvited recreational access is a sufficient interruption to restart any period of use that may have already begun.”

Utah Supreme Court Issues Statewide Stay

Following Judge Pullan’s decision, VR Associates (“VRA”), which “owns a luxury destination on a 4-mile stretch of the Provo River known as Victory Ranch” filed an appeal.  A lawyer for VRA has said that Judge Pullan’s decision is “premised on various erroneous conclusions,” and that:

VRA, other private landowners, the state, and the recreating public are all harmed through a deprivation of their property rights, the right to the benefit of duly enacted legislation, and ambiguity as to the scope of the public’s rights.

Specifically, VRA contends that recreational use was not envisioned by the framers of the Utah Constitution when they described public easements to ensure access to water in the 1890s.  Rather, VRA asserts that the framers of the Utah Constitution were thinking of irrigation or commerce as it relates to public easements to access public waters.

Without comment, the Utah Supreme Court granted VRA’s request for a stay of Judge Pullan’s ruling pending VRA’s appeal.  The stay represents the first adverse ruling against the Utah Stream Access Coalition (“USAC”), a collation aimed at “promot[ing] and assist[ing] in all aspects of securing and maintaining public access to, and lawful use of, Utah’s public waters and streambeds,” in the nearly five years since the group began litigating against the Utah Public Waters Access Act.

In a blog on its website, the USAC said that, “Although we are disappointed by the court’s order, it is of the utmost importance that we follow it.”  Even still, the Coalition reiterated:

We got through 5 years of restricted access to our rivers, and we can get through however many more it takes before the Utah Supreme Court rules on this issue. We remain confident in our legal arguments before the court, and we will continue to pursue all means possible to restore and preserve access to Utah’s public rivers and streams.

Even though USAC argued that Victory Ranch only had standing to seek a stay “that applies to its four miles on the Upper Provo above [the] Jordanelle Reservoir,” the Utah Supreme Court rejected that contention by issuing a statewide stay of Judge Pullan’s ruling.  Thus, for now, the public’s access to waterways on private property is all but denied without the private landowners consent.

According to VRA’s court filings, the Public Waters Access Act “prohibited and criminalized virtually all forms of public access to and use of 2,700 miles of Utah’s fishable public water that traverse ostensibly private stream beds.”  Judge Pullan’s ruling had concluded that the Act’s reach had gone too far, and that under the Act approximately 43% of the state’s fishable streams had been made off-limits to the public.

USAC Wins Related Suit on “Navigability” of Weber River

While the fate of the Utah Public Waters Access Act remains up in the air following the Supreme Court’s stay, just last year, USAC won a related lawsuit regarding the question of navigability on the Weber River.  That ruling, stemming from the 3rd District, declared that streams are “public” if, at the time of Utah statehood in the 19th century, they were used seasonably to float logs.  However, this ruling too has been appealed, and the Utah Supreme Court has consolidated any appeals associated with the navigability cases.

Utah Division of Wildlife Resources Issues Guidance for Anglers

In November 2015, the Utah Division of Wildlife Resources issued guidance to anglers that were confused with the shifting rules.  The guidance advised anglers to stick to beds of streams when crossing private lands and demonstrate respect to private landowners.  According to the Utah Division of Wildlife Resources, the best practices are to access private streams only from public access points or after obtaining express consent from the private landowners to access the streams.

Utah Supreme Court’s Stay Not Having Intended Consequences?

While Judge Pullan’s decision has been stayed, many anglers appear to have ignored the stay.  According to VRA, anglers showed up on its banks within days of Judge Pullan’s ruling and many “exceeded the bounds of what is explicitly permitted. This will likely continue until clarity is provided regarding the scope of the public’s easement,” VRA said in court filings.  In VRA’s opinion:

The public has an interest in seeing laws enacted by its representative upheld and enforced. Similarly, private landowners — members of the public themselves — have an interest in assuring that the full scope of their constitutional rights are enforced, absent direction from the Supreme Court to the contrary.

Judge Pullan’s ruling creates an interesting question regarding the Utah Constitution, namely whether the framers of the Utah Constitution envisioned public use when they described public easements in the 1890s and whether restricting access to some 43% of Utah’s fishable streams goes too far.  The ruling also raises questions related to private landowners and their rights in the face of the public’s access to the waterways of Utah for recreational purposes.


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Clean Water Act section 404(f) “interpretive rule” withdrawn after NMPF objects

National-Milk-Producers-Federation-logo-ApprovedIn response to objections raised by the National Milk Producers Federation, the Environmental Protection Agency (“EPA”) has withdrawn an interpretive rule regarding when farmers must seek Clean Water Act permits for a laundry list of farming activities taking place near wetlands.  The rule specifically stated that farmers were only exempt from needing to obtain Clean Water Act permits for certain farming practices if they complied with the National Resources Conservation Service (“NRCS”) technical conservation standards.

The EPA’s withdrawal of the rule came after the National Milk Producers Federation (“NMPF”) requested that the rule be withdrawn.  In a letter to the EPA, NMPF complained that “neither the proposed rule defining waters of the United States nor the interpretive rule explaining the availability of an exemption from dredge and fill permitting requirements for producers who install certain conservation practices according to NCRS standards meets the test of effectively protecting water quality.”

According to NMPF, under the interpretive rule, “producers may qualify for section 404 exemption by implementing one of 56 conservation practices included on a list published by the EPA in conformance with NCRS technical standards.”  Thus, the “[t]echnical standards produced by NCRS now form the foundation for the only [interpretive rule] published on how to gain a 404 exemption for normal farming practices,” NMPF said.  However, prior to the release of the interpretive rule, “404 exemptions were granted without reference to the NCRS technical standards.”

As an example of how the new interpretive rule would impact farmers, NMPF cited the practice of harvesting hay.  There, NMPF said that after the interpretive rule “a producer apparently can only gain a 404 exemption by following” a certain NCRS conservation practice standard.  The NCRS standard is approximately four pages long “contains criteria for timing of harvest (no compromising plant vigor and stand longevity); for mandatory recommendations for optimum moisture content and levels as well as methods and techniques to monitor and/or determine moisture content and levels; for length of cut as well as the converse for stubble height; for a bar on contaminants.”  As a result of the NCRS standards, farmers will be required to follow the NCRS standards or they run the major risk of failing to qualify for a 404 exemption.

In conclusion, NMPF stated:

NMPF and its members are committed to protecting U.S. waterways through voluntary efforts and regulatory compliance with the Clean Water Act, and we appreciate consideration of these important comments. We believe that our members will be adversely affected by the IR and that the IR will have the perverse impact of harming the longstanding trust and cooperative relationship between dairy producers and NRCS. Consequently, water quality improvements will be adversely impacted. For the reasons stated above, water quality will be better served if the IR is withdrawn and the agencies’ policy on establishing eligibility for the 404 exemption is reformulated with the benefit of more stakeholder engagement. NMPF and its members are very willing to work with the agencies and other stakeholders in this regard to ensure our mutual goal of attaining and maintaining water quality in our nation’s waters.

In a statement, a VP for NMPF said, “Our concern with the initial proposal from last year is that it could have altered the long-standing and productive relationship between farmers and the USDA’s Natural Resources Conservation Service in a way that would have made it harder for farmers to implement water conservation measures.”  Had the interpretive rule not been withdrawn, NMPF said that “the NRCS would have been thrust into the role of enforcer, rather than remaining a source from which farmers could seek conservation advice.”


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2016 EPA Water Law

EPA issues final Clean Water Rule, but Sixth Circuit stays rule pending further determination

EPA Water Rule 2016In the spring of 2015, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) released the final Clean Water Rule in order “to clearly protect from pollution and degredation the streams and wetlands that form the foundation of the nation’s water resources.”  According to the EPA’s news release:

The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.

Up and until the EPA and the USACE acted to pass the final Clean Water Rule, “[p]rotection for many of the nation’s streams and wetlands [had] been confusing, complex, and time consuming as the result of Supreme Court decisions in 2001 and 2006.”  Accordingly, the EPA and USACE took action to release the final Clean Water Rule “to provide clarity on protections under the Clean Water Act after receiving requests for over a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking.”

At the outset, it is very important to understand what the new Clean Water Rule does and does not do.  First, the rule clearly defines and protects tributaries that impact the health of downstream waters.  “The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection,” and “[t]he rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.”

Second, the rule provides certainty in how far safeguards extend to nearby waters.  “The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters,” and “[t]he rule sets boundaries on covering nearby waters for the first time that are physical and measurable.”

Third, the rule provides protection for the nation’s regional water treasures.  Specifically, “[t]he rule protects prairie potholes, Carolian and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.”

Fourth, the rule focuses on streams, not ditches.  “The rule limits protection to ditches that are constructed out of streams or function like streams an can carry pollution downstream.”  Thus, ditches that are not constructed in streams and only flow after a rainstorm are not protected under the rule.

Fifth, the rule maintains the status of waters within Municipal Separate Storm Sewer Systems and encourages the use of green infrastructure.  Finally, the rule reduces the use of case specific analysis of waters.  Before the release of the new rule, “almost any water could be put through a lengthy case-specific, even if it would not be subject to the Clean Water Act.”  Now, “[t]he rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.”

In terms of what the Clean Water Rule does not do, the EPA and the U.S. Army corps of Engineers has said the rule does not: 1) protect any types of waters that have not historically been covered by the Clean Water Act; 2) add any new requirements for agriculture; 3) interfere with or change private property rights; 4) regulate most ditches; 5) change policy on irrigation or water transfers; 6) address land use; 7) cover erosional features such as gullies, rills and non-wetland swales; and 8) include groundwater, shallow subsurface flow and tile drains.

As it relates specifically to agriculture, “[t]he final rules recognizes the vital role that U.S. agriculture serves in providing food, fuel, and fiber at home and around the world.”  As a result, “[a]ctivites like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule doesn’t change that.”  Instead, “[t]he Clean Water Rules provides greater clarity and certainty to farmer and does not add economic burden on agriculture.”

Following the release of the Clean Water Rule, the EPA Administrator Gina McCArthy and the Army (Civil Works) issued a joint memorandum to their respective staffs instructing the agencies to work together to improve implementation of the national Clean Water Act section 404 program.  The joint memorandum was issued to help “improve transparency, strengthen the coordination processes between the agencies, increase public participation, promote the use of the best available science and technical data for making case-specific significant nexus determinations, and promote public health and environmental protection for all Americans who depend on reliable and abundant sources of clean water.”

However, in October 2015, the Sixth Circuit Court of Appeals issued a stay of the Clean Water Rule nationwide, until federal courts could review the rule.  Eighteen states have challenged the validity of the Clean Water Rule.  These states contend that the rule expands the agencies’ regulatory jurisdiction and alters the balance of federal/state collaboration.  Furthermore, the states argue that the rule, which seeks to define “significant nexus to navigable waters,” is inconsistent with the law as defined by the United States Supreme Court. In response, the EPA contends that the states did not make a requisite showing to justify a stay.

The Sixth Circuit ultimately concluded that the states had demonstrated a substantial possibility of success on the merits of their claims.  The states took issue with the way the rule was promulgated administratively.  Initially, the proposed Clean Water Rule did not include distance limitations in its treatment of “adjacent waters,” and waters having a “significant nexus,” as was provided in the final rule.  Therefore, the proposed Clean Water Rule was not a logical outgrowth of the final rule, as required by 5 U.S.C. §553.  Second, the Sixth Circuit concluded that the irreparable harm factor was not determinative for each side.  Neither the states would be harmed by the rules continued application, nor was there any indication that the nation’s waters would be harmed without it.  Finally, and more importantly, the Sixth Circuit noted the nationwide burden on private parties and government bodies—state and federal—implicated by the Clean Water Rule’s effective redrawing of jurisdictional lines.

Then, in January 2016, President Obama vetoed Joint Resolution 22, a congressional resolution that would have overturned the EPA’s Clean Water Rule.  Thus, for now, the Sixth Circuit’s stay remains in force pending a determination regarding the Sixth Circuit’s jurisdiction over challenges to the rule.   Currently, the U.S. Supreme Court in, United States Army Corps of Engineers v. Hawkes Co., Inc., is set to determine whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court,” and is therefore subject to judicial review under the Administrative Procedure Act.