The SandBar 9.1

Legal Reporter for the National Sea Grant College ProgramVolume 9:1, April 2010

CatawbaRiver DisputeSupreme Court rulesprivate parties may intervene

WaterDiversionProjectTransfer halted overinvasive speciesconcerns

Who wins, nature or commerce?Controversy abounds over oyster farm in the Point Reyes

National Sea Shore

THE SANDBAR is a quarterly publication report-ing on legal issues affecting the U.S. oceansand coasts. Its goal is to in crease awarenessand understanding of coastal problems andissues. To subscribe to THE SANDBAR, contact:

Sea Grant Law Center, Kinard Hall, Wing E,Room 258, P.O. Box 1848, University, MS,38677-1848, phone: (662) 915-7775, or con-tact us via e-mail at: [email protected] . Wewelcome suggestions for topics you would liketo see covered in THE SANDBAR.

THE SANDBAR is a result of research sponsoredin part by the National Oceanic andAtmospheric Administration, U.S. Depar -t m e n t o f C o m m e rc e , u n d e r a w a rdNA090AR4170200, the Sea Grant Law Center,Mississippi Law Research Institute, andUniversity of Mississippi Law Center. TheU. S . G o ve r n m e nt a n d t h e S ea G ra ntCollege Program are authorized to produceand distribute reprints notwithstanding anycopyright notation that may appear hereon.

This newsletter was prepared by the SeaG r a n t L a w C e n t e r u n d e r a w a r dN A 0 9 0 A R 4 1 7 0 2 0 0 f r o m N O A A , U . S .Department of Commerce. The statements,findings, conclusions, and recommendationsare those of the author(s) and do not neces-sarily reflect the views of the S e a G r a n tLaw Center or the U.S . Department ofCommerce.

Recommended citation: Author’s Name, Titleof Article, 9.1 SANDBAR [Page Number] (2010).

Cover photograph of the Catawba Riverc o u r t esy o f C a t a w b a R i v e r ke e p e rFoundation, Photo by Nancy Pierce.

C o n t e n t s p a g e p h o t o c o u r t esy o fWaurene Roberson.

2 • The SandBar • April 2010

Our Staff

Editor:Terra Bowling, J.D.

Production & Design:Waurene Roberson

Research Associates:Michael McCauley, 2LJonathan Proctor, 3L

F r o m t h e E d i t o r

Spring brings a reminder of the beauty of our nation’s naturalresources. A look at current natural resources law, however, reminds usof the the struggles to allocate and protect those resources. In this edi-tion of The SandBar, we highlight several of these conflicts.

We first turn to our nation’s rivers. In South Carolina v. North Carolina,the states disagree over allocation of water from the Catawba River. Ina 5-4 decision, the U.S. Supreme Court recently ruled that private enti-ties may intervene in the dispute. In “Water Project Diverted,” weexplore a U.S. district court’s decision to halt a water diversion projectover concerns that the effects of the project, specifically the potentialfor invasive species introduction, had not been properly addressed.And, finally, in “A Heated Controversy,” we look at the VermontSupreme Court’s decision regarding thermal effluent discharge from anuclear power station into the Connecticut River.

Highlighting a conflict between conservation and commercial use, weexamine the dispute over an historic oyster farm located in the PointReyes National Seashore. Looking to another shoreline use dispute, wereport the Ninth Circuit’s ruling that shore defense structures erectedabove the mean high water line, but now located at or below the linedue to erosion may create trespass liability.

Thanks for reading The SandBar. As always, suggestions or commentsare welcome.

Terra

The University of Mississippi complies with all applicable lawsregarding affirmative action and equal opportunity in all itsactivities and programs and does not discriminate againstanyone protected by law because of age, creed, color, nation-al origin, race, religion, sex, handicap, veteran or other status.

ISSN 1947-3966 NSGLC-10-02-01 April 2010ISSN 1947-3974

http://www.catawbariverkeeper.org

April 2010 • The SandBar • 3

C O N T E N T S

The Supreme Court Runs Through It:Private Entities May Intervene in Catawba River Dispute .... 4

Nature v. Commerce Controversy over Oyster Farm in Point Reyes Seashore........ 7

Ninth Circuit Rules Against LittoralProperty OwnersShore Defense Structures May Constitute Trespess.............. 8

A Heated ControversyVermont Supreme Court Upholds Thermal Discharge Variance for Connecticut River ............................................ 10

Water Project DivertedTransfer Halted over Invasive Species Concerns . ............... 13

In January, a dispute over water rights to theCatawba River heated up when the U.S.Supreme Court ruled that private water users,

including Duke Energy, could intervene in a dis-pute between South Carolina and North Carolina.1

BackgroundThe Catawba River stems from the Blue RidgeMountains in North Carolina and flows for 300miles through the city of Charlotte and into LakeWateree in South Carolina.2 The river serves as theborder between the two states for approximatelyten miles. In 2008, the Catawba was named as themost endangered river in the United States due toincreasing pressures on the river.3

In 2007, South Carolina filed suit in the U.S.Supreme Court, claiming North Carolina’s autho-rization of upstream transfers exceed its equitableshare of the river. South Carolina specificallyobjected to the North Carolina EnvironmentalManagement Commission’s issuance of two per-mits, one to Charlotte for the transfer of up to 33million gallons per day (mgd), and one to the NorthCarolina cities of Concord and Kannapolis for thetransfer of 10 mgd. The state also objected to astatute that “grandfathered” a 5 mgd transfer bythe Catawba River Water Supply Project (CRWSP).

South Carolina asked the Court to equitably appor-tion the river, enjoin North Carolina from autho-rizing transfers in excess of the state’s equitableshare, and to strike down North Carolina’s permit-ting statute authorizing the water transfers.

The Court agreed to hear the case pursuant to“original jurisdiction,” which allows it to hear acase that has not proceeded through a lower court.The Supreme Court has original jurisdiction in justa few instances, including disputes between two ormore U.S. states. As in this case, the issues ofteninvolve natural resource apportionment.

InterventionAfter the case was filed, several parties, DukeEnergy Carolinas (Duke Energy), the CRWSP, andthe city of Charlotte, sought to intervene. TheCourt allows private parties to intervene, as long asthey meet the standard for a nonstate entity’s inter-vention in an original action as defined in NewJersey v. New York.4

In that case, the State of New Jersey sued NewYork and the city of New York for their diversionof the Delaware River’s headwaters.5 The Courtallowed Pennsylvania to intervene, but when thecity of New York moved to modify the decreemore than twenty years later, the Court denied the


THE SUPREME COURT

RUNS THROUGH IT:PRIVATE ENTITIES

MAY INTERVENE IN

CATAWBA RIVER DISPUTEby Terra Bowling, J.D.

city of Philadelphia’s motion to intervene. The Courtfound that “an intervenor whose state is already a partyshould have the burden of showing some compellinginterest in his own right, apart from his interest in a classwith all other citizens and creatures of the state, whichinterest is not properly represented by the state.”6

In the Catawba River case, the CRWSP argued forintervention, asserting that its interest would not beadequately represented by either state because it sup-plies water to and is owned by counties from bothstates. Duke Energy sought to intervene citing aninterest as the operator of eleven dams and reservoirson the Catawba River that control the river’s flow, asthe holder of a fifty-year license governing DukeEnergy’s hydroelectricpower operations, andas the entity thatorchestrated themulti-stakeholdernegotiation pro -cess culminatingin a Com pre hen -sive RelicensingAgreement (CRA)signed by seventyentities from bothstates in 2006. Thecity of Charlottesought to inter-vene claiming thatNorth Carolinacould not repre-sent its interests,since it was theholder of a per-mit authorizingthe largest sin-gle transfer iden - tified in the com - plaint and the potential source of other transfers inthe complaint. Additionally, the city claimed that theState was required to represent other users whoseinterests were not aligned with Charlotte’s.

The Court referred all three motions to a SpecialMaster, who recommended that all three parties bepermitted to intervene. In making its decision, theSpecial Master used a broad rule distilled from several

Supreme Court cases in which nonstate parties partic-ipated as defendants, as well as cases in which theyintervened. In an opinion by Justice Samuel Alito, theCourt rejected the broad rule in favor of the NewJersey v. New York standard and held that two of thethree proposed intervenors, Catawba River WaterSupply Project and Duke Energy, satisfied the stan-dard for intervention.

CRWSPThe Court concluded that the CRWSP could inter-vene, because as a bi-state entity it demonstrated a suf-ficiently compelling interest apart from the interests ofother citizens of the states. Specifically, the Court

noted that the CRWSP wasestablished as a joint

venture of bothstates, has an adviso-ry board consistingof representativesfrom both counties,draws its revenuesfrom its bi-state sales,and operates infra-structure and assets thatare owned by bothcount ies as tenants-in-common. In addi-tion, the CRWSP relieson authority grantedby both States todraw water from theCatawba River andtransfer that waterfrom the CatawbaRiver basin. TheCourt concluded thatbecause both stateswould likely argue

for reduction of water to the CRWSP neither statewould adequately represent the entity’s interests.

Duke EnergyThe Court next found that Duke Energy would beallowed to intervene, since it showed “unique andcompelling interests.” The Court noted that DukeEnergy operates eleven dams and reservoirs in both


States that generate electricity for the region andcontrol the flow of the river, noting “that anyequitable apportionment of the river will need totake into account the amount of water that DukeEnergy needs to sustain its operations and pro-vide electricity to the region.”7 Further, there isno other similarly situated entity on the CatawbaRiver, setting Duke’s unique interests apart from

the class of all other citizens. The Court alsonoted Duke’s interest in protecting the terms ofits existing FERC license and the CRA that Dukehelped negotiate.

Charlotte The Court concluded that Charlotte did notcarry its burden of showing a sufficient interestfor intervention. The Court found thatCharlotte “occupies a class of affected NorthCarolina users of water, and the magnitude ofCharlotte’s authorized transfer does not distin-guish it in kind from other members of theclass.”8 The Court further noted that, unlike theCRWSP, the viability of Charlotte’s operationswas not “called into question” by the litigation.Its interest is solely as a user of North Carolina’sshare of the Catawba River’s water. The Courtconcluded, “Charlotte’s interest falls squarelywithin the category of interests with respect to

which a State must be deemed to represent all ofits citizens.”9

ConclusionWith water quantity issues on the rise, theCourt’s ruling may point to more intervention byprivate water users in these types of cases.However, not all of the Supreme Court Justices

agreed with the opinion.Justices Roberts, Thomas,

Ginsburg, and Sotomayor dis-sented from part of the opinion.Although the dissenting Jus ticesagreed with the denial ofCharlotte’s intervention, theJustices would have also deniedDuke Energy and CRWSP’smotions for intervention.

The dissent reasoned that “[a]judgment in an equitable appor-tionment action binds the States;it is not binding with respect toparticular uses asserted by privateentities. Allowing intervention bysuch entities would vastly compli-cate and delay already complicat-ed and lengthy actions.”10

The case will continue with a hearing bythe Special Master, who will then reportback to the Supreme Court. As noted in thedissent, those not allowed to intervene maystill file briefs as amici curiae, or “friends ofthe court.”

Endnotes1. South Carolina v. North Carolina, 130 S. Ct.

854 (2010). 2. http://www.catawbariverkeeper.org/about-

the-catawba/catawba-wateree-facts/ .3. Id.4. 345 U.S. 369 (1953).5. Id. at 370. 6. Id.7. 130 S. Ct. at 866.8. Id. at 867. 9. Id.10. Id. at 877.


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In Drakes Estero, a marine estuary twen-ty-five miles northwest of San Francisco,harbor seals and other wildlife have

shared the bay with an oyster farm since the1930s.1 When the federal government pur-chased the land from property owners in1962 to create the Point Reyes NationalSeashore, the owners retained the right ofoccupancy and use until 2012.2

When the National Park Service indicat-ed that it would not renew the oyster farm’spermit, a controversy ignited between thefamily who owns the farm and the NationalPark Service. The conflict, which has beenframed as a battle between nature and com-merce, has scientists, residents, and political

figures, including Senator Dianne Fienstein,landing on both sides of the debate.3

Reports Kevin Lunny and his family, which hadfarmed nearby for three generations, pur-chased the oyster company in 2005.4 AfterLunny began operations, the National ParkService (NPS) issued a series of reports pre-senting scientific information that describednegative effects of the oyster farm on theDrakes Estero ecosystem.5 Among otherthings, the report stated that the farmingoperations were disrupting harbor seals andeelgrass. Lunny claimed that the NPS wastrying to force him out of his lease.6

Controversy abounds over oyster farm in the Point Reyes National Seashore

by Terra Bowling, J.D.

Na

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Photograph of Point Reyes National Seashore is a publicdomain photograph from the Wikimedia Commons website.

See Nature v. Commerce, page 15


The United States Court of Appeals for theNinth Circuit recently ruled that shore defensestructures erected above the mean high water

line (MHWL), but now located at or below the linedue to erosion, may create trespass liability and giverise to violations of the Rivers and Harbors Act.1

BackgroundAt issue are tidelands held in trust by the federal gov-ernment for a Native American tribe. Through the1855 Treaty of Point Elliot signed by the United Statesand several Native American tribes, the U.S. acquiredmuch of what is now Washington state and estab-lished reservations for the respective tribes. One suchtribe, the Lummi, was initially relegated to Chah-choo-sen Island; however, following an executive orderfrom President Grant in 1873, the Lummi Reservationboundaries were expanded to include the tidelands upto “the low-water mark on the shore of the Gulf ofGeorgia” on the coast of Washington.2 Much of theland adjacent to this low water mark was subsequentlydivided into parcels and sold.

The parcel owners eventually erected shorelanddefense structures both on dry land and on tidelandsleased from the Lummi Nation. Both the Lummi andthe individual homeowners declined to renew the leasein 1988, the expiration of which prompted the U.S.government, on behalf of the Lummi Nation, todemand that the homeowners either remove theshoreland defense structures or lease the tidelands.Following the homeowners’ inaction, the U.S. filed suitfor trespass, violations of the Rivers and Harbors Act(RHA), and violations of the Clean Water Act (CWA).

The trial court issued partial summary judgment infavor of the U.S. on all counts, ordering the homeown-ers to remove their shore defense structures seaward ofthe MHWL. In addition, the owner of one parcel wasordered to pay a $1,500 fine for CWA violations.3

Common Law TrespassOn appeal, the Ninth Circuit first reviewed the ques-tion of whether the presence of the homeowners’shoreland defense structures on Lummi property con-stitutes trespass. Though otherwise close enough toshore to be governed by state law, the Lummi tide-lands at issue fall under federal common law, due totheir status as Native American lands.4

A federal common law claim for trespass may bemet by proving that either a person “intentionally ...causes a thing [to enter land in the possession ofanother] ... [or] fails to remove from the land a thingwhich he is under a duty to remove.”5 The home-owners did not dispute that their shore defensestructures were in Lummi tidelands, but insteadcountered the trespass claim by making the followingarguments: 1) Washington state owns the tidelands,not the U.S.; 2) the structures were built landward ofthe MHWL and are therefore immune from trespassactions based on erosion; and 3) that the homeown-ers lacked the required intent and causation neededto amount to trespass.

The argument that Washington owns the tidelandsstems from the “equal footing doctrine”: in order “[t]oput newly admitted states on an ‘equal footing’ withthe original states, the doctrine creates a strong pre-sumption that newly admitted states acquire title tolands under navigable waters upon their admission tostatehood.”6 However, this presumption can be over-come when the federal government has specificallyreserved such lands, such as in the case of federalIndian reservations. Further, the state of Washingtonwaived any right or title claims to the contrary when itentered the Union.

Waterfront property boundaries, by their verynature, are subject to the ebb and flow of the tides andoften slowly move seaward or landward over time.When land erodes, the shorefront property owner

Ninth Circuit Rules AgainstLittoral Property Owners

by Jonathan Proctor, 3L, University of Mississippi School of law

loses land; if land builds up due to accretion, theshorefront owner gains property. Following an exten-sive discussion of ambulatory property boundariesand the reciprocal relationship between tideland andupland property owners, the court determined that thehomeowners in this case may not interfere with thenatural processes of erosion and accretion withoutproviding the Lummi with compensation or coming tosome agreement.

The homeowners claimed that some structures liein Lummi tidelands due to shifts in the propertyboundary caused by erosion and that they had nointent to place structures on Lummi tidelands. Theyclaim this lack of intent defeats the trespass claim. Thecourt disagreed. Regardless of whether the homeown-ers caused or intended the boundary line’s shift, a suc-cessful trespass claim does not turn on intent. Merelyerecting the structures and refusing to remove themupon the change in the MHWL is enough to satisfy thetrespass claim.

RHA ViolationsSection 10 of the RHA prohibits the unauthorizedobstruction of U.S. navigable waters, unauthorizedconstruction in U.S. navigable waters, and any modifi-cations to the flow and capacity of U.S. navigablewaters. The homeowners admit that they were notauthorized to maintain the shoreland defense struc-tures below the MHWL, but appealed the trial court’sfinding that their failure to remove the structuresamounted to an RHA violation.

Though not specifically prohibited by the RHA,courts have determined that even structures whichwere previously legal must be removed once they fallwithin the scope of § 10 prohibitions.7 Further, thepurpose of § 10 is not only to prevent the constructionof obstructions to navigable waters, but to ensure“that navigable waterways remain free of obstruction,because even initially legal structures can subsequentlyinterfere with navigation.”8

Whether the shoreland defense structures actuallyobstruct navigation is ultimately immaterial. By quali-fying as a “breakwater, bulkhead, ... or other structure”and modifying the course and location of the water,the unauthorized structures create RHA liability forthe homeowners.9 Additionally, the court rejected theargument that structures built landward of the MHWL

should not be subject to the RHA. “Just as one whodevelops below the [MHWL] does so at his peril, thosewho build too close to the [MHWL] also run the riskthat their structures eventually may become obstruc-tions.”10 The Ninth Circuit therefore agreed with thedistrict court’s finding of RHA violations.

CWA ViolationsThe district court only found the owners of one home,the Nicholsons, in violation of the CWA due to theirdischarge of fill material below the MHWL whilereconstructing their defense structures. The NinthCircuit, however, was unconvinced that theNicholsons actually discharged any fill material.Ultimately reversing the district court’s summary judg-ment against the Nicholsons, the Ninth Circuit heldthat construction on dry, fast land does not necessari-ly lead to a discharge of pollutants into navigablewaters.

ConclusionNow that the homeowners have been found liable fortrespass damages, they may be more willing to renego-tiate a lease agreement with the Lummi Nation. As theNinth Circuit noted, “This action was avoidable.Perhaps the parties still will be able to reach an amica-ble settlement.”11

Endnotes1. U.S. v. Milner, 583 F.3d 1174 (9th Cir. 2009).2. Id. at 1180.3. Id. at 1182.4. Id. (citing United States v. Pend Oreille Pub. Util. Dist.

No. 1, 28 F.3d 1544, 1549 n. 8 (9th Cir. 1994)).5. Id. at 1183 (quoting Restatement (Second) of Torts

§ 158 (2009)).6. Id. (citing Idaho v. United States, 533 U.S. 262, 272-73

(2001)).7. See U.S. v. Alameda Gateway Ltd., 213 F.3d 1161,

1167 (9th Cir. 2000).8. Milner, 583 F.3d at 1192.9. Id. (citing 33 U.S.C. § 403).10. Id. at 1193.11. Id. at 1197.


Background photograph of Lummi Indian Fish Camp circa 1895 courtesy ofNOAA’s Historic Fisheries Collections.


The Vermont Supreme Court recently upheld anamendment to a National Pollutant DischargeElimination System (NPDES) permit under

the Clean Water Act (CWA), allowing an energy com-pany to increase the temperature of discharge water itreleased into the Connecticut River.1 Despite affirmingthe variance, the court held that the state may setstricter thermal effluent standards than contained inthe CWA.

BackgroundEntergy Vermont Yankee (Entergy) operates a nuclearpower station along the Connecticut River. To gener-ate electricity, the plant uses heated water to createsteam, which turns turbines to drive generators. Steamthat has passed through the turbines must be con-densed, requiring removal of heat. To remove the heatand lower the temperature of the nuclear reactors,water is drawn from the Connecticut River into a cool-ing system. The heated water may either be dischargedthrough “closed cycle cooling” in which the water ismechanically cooled or through “open cycle cooling”in which the water is discharged back into the river.Water discharged back into the river is considered apollutant under § 316(a) of the CWA and is regulatedthrough NPDES permits.

In 2003, Entergy sought a variance to its permit,which would allow it to increase thermal discharge.The Vermont Agency of Natural Resources (ANR)

issued an amended NPDES discharge permitallowing Entergy to increase thermal discharge andraise the temperature of the Connecticut River by onedegree from July 8 through October 14.

A number of local environmental groups, includ-ing The Connecticut River Watershed Council, TroutUnlimited, and Citizens Awareness Network (collec-tively, CRWC), appealed the decision to the VermontEnvironmental Court. CRWC’s primary concern wasretaining the water quality for American shad, whosepopulation in the river above the reactor has dwindledfrom over 37,000 in 1991 to only a few hundred in2005. The Environmental Court approved the ANRdecision, but imposed monitoring and additional tem-perature conditions to the amended permit.

CRWC appealed the Environmental Court’s deci-sion by arguing “(1) the court misapplied variousaspects of the CWA; (2) the court failed to properlyapply the Vermont Water Quality Standards; (3) andthe court exceeded the scope of its authority byincluding substantive conditions to the amended per-mit.”1 Entergy and ANR cross-appealed, arguing thatthe CWA should override state requirements.

CWA To receive a variance from applicable thermal dis-charge standards, including state water quality stan-dards, § 316 of the CWA requires the discharger todemonstrate that alternative thermal limits will not

A Heated Controversy

The Vermont Supreme Court Upholds ThermalDischarge Var iance for Connect icut River

by Michael McCauley, 2L, University of Mississippi School of Law

cause significant harm to aquatic life.2 “Whether ornot a thermal variance is appropriate turns onwhether a balanced, indigenous, population (BIP)of fish and wildlife can be adequately protected.”3

The CRWC argued that the EnvironmentalCourt erred in several aspects of applying § 316(a).First, the CRWC stated that the EnvironmentalCourt erred in failing to analyze the appropriate“body of water” affected by the thermal plume. TheCRWC argued that the court should have includedan analysis of Holyoke Dam, located fifty milesbelow Entergy’s reactor. The Vermont SupremeCourt held that it was unnecessary to analyze poten-tial impacts further downstream, noting that “theapplicable body of water is only that which is affect-ed by Entergy’s thermal plume.”5 Relying on testi-mony that the plume could not be detected pastTurner’s Falls Dam, a point farther upstream thanHolyoke Dam, the Vermont Supreme Court heldthat the Environmental Court did not err in its def-inition of the applicable body of water.

The CRWC also argued that the EnvironmentalCourt failed to require Entergy to demonstrate thatprior discharges have not caused “prior appreciableharm.” The court disagreed and ruled thatEntergy’s use of both prospective and retrospective

evaluation of biological effects met the statutoryrequirements of the CWA. Entergy had providedextensive testimony from an expert with thirty-three years of experience studying that particularportion of the river. The court found that theEnvironmental Court reasonably relied on this tes-timony in determining that the BIP would be ade-quately protected.

Finally, CRWC objected to the EnvironmentalCourt’s adoption of the representative importantspecies chosen by Entergy. The group argued thatmore warm water species were chosen, whichwould not be as adversely affected by thermalplumes. The court rejected this argument as well,noting the special attention given to Atlanticsalmon, the most thermally sensitive species on thelist. Additionally, other species that CRWC insistedshould have been used did not even use the mainchannel of the Connecticut River.

Vermont Water Quality StandardsCRWC also argued that the Environmental Courtfailed to apply the Vermont Water Quality Standards(VWQS), while Entergy argued that the federal pro-visions regarding thermal discharge variancesshould take precedence over the state requirements.


Photograph of Connecticut River courtesy of Wikimedia Commons, Photographer Ragesoss.


The court rejected Entergy’s argument that the feder-al provisions regarding thermal discharge variancesshould take precedence over the state requirements.The court found that the federal requirements for thecontent of state water quality standards represent afloor and state standards may be stricter. The courtheld that Entergy’s argument would have the effect ofnullifying the VWQS. Though the court found thestate water quality standards applicable, the courtrejected CRWC’s arguments that the court failed toapply the VWQS. The court held that the Environ -mental Court correctly analyzed both CWA andVWQS regulations in tandem rather than separately,but found no error in this analysis.

Environmental Court’s Permit ConditionsThe final issue concerned the additional conditionsplaced on the permit by the Environmental Court.These conditions included the installation of tem-perature sensors and required that between June 16and July 7, the discharge be managed so that thetemperature would not exceed 76.7 degrees. Thiswas added out of concern for the shad popula-tions. The CRWC, Entergy, and ANR all arguedthat the Environmental Court exceeded its author-ity in attaching these conditions.

The Vermont Supreme Court held that whilethe Environmental Court must allow proper def-erence to the agencies, it is granted broad discre-tion in reviewing ANR determinations, and thisdiscretion necessarily includes the ability toimpose permit conditions. However, the Courtheld that any additional conditions by theEnvironmental Court must be supported by ade-quate basis within the record. In the present case,the court found virtually no evidence in the recordregarding the threshold temperature of 76.7degrees, only “abstract concerns” without ade-quate findings to justify the condition. Nothingwas referenced in the Environmental Court’s rul-ing regarding temperature conditions. The court,therefore, ultimately upheld the permit but with-out these additional conditions.

ConclusionThe Vermont Supreme Court affirmed ANR’s deci-sion to grant Entergy a variance, but reversed the

Environmental Court’s additional conditions.Entergy hailed the decision a victory, insisting thevariance request was based on scientific, peer-reviewed data and that the company is a responsiblesteward of the river.6 However, the VermontSupreme Court did confirm that the state may setthermal effluent standards stricter than the federalCWA standards. Additionally, it held that theEnvironmental Court could attach additional condi-tions to permits so long as there was sufficient evi-dence within the record to do so.

In news reports, CRWC responded by statingEntergy’s request was only made to save the compa-ny money at the expense of the ecological health ofthe river.7 Entergy is in the process of renewing itsNPDES permit and CRWC pledged it would appealthat decision as well. “This was the first round inwhat will be an ongoing battle,” said David Mears,director of Vermont Law School’s Environmentaland Natural Resources Law Clinic, which represent-ed CRWC and agued the case before the SupremeCourt of Vermont.8 In the end, this court decisionmay have little actual impact on the operation ofEntergy’s nuclear reactor. In February of 2010Vermont’s Senate voted 26 to 4 to shut down thenuclear plant, citing radioactive tritium leaks.9

Endnotes1. In re Entergy Nuclear Vermont Yankee

Discharge Permit 3-1199, 2009 VT 124 (Vt.2009).

2. Id. at *13. 3. 33 U.S.C. § 316(a).4. Id.5. 2009 VT 124 at *19.6. Howard Weiss-Tisman, Vermont Supreme Court

Upholds Dischar ge Ruling , BRATTLEBOROREFORMER, Dec. 19, 2009, available athttp://www.allbusiness.com/legal/legal-services-litigation/13625859-1.html .

7. Id.8. Press Release, Vermont Supreme Court Issues

Connecticut River Decision (Dec. 18, 2009) avail-able at http://www.ctriver.org/newsroom/press_release_and_news_articles/?p=73.

9. Matthew L. Wald, As Clock Ticks, Nuclear PlantSearches for Leak, N.Y. TIMES, Feb. 26, 2010.


Citing concerns over invasivespecies, the U.S. District Courtfor the District of Columbia has

ruled that a water withdrawal project isin violation of the National Environmental Policy Act (NEPA).1 The project, called theNorthwest Area Water Supply Project, would withdraw water from a reservoir on theMissouri River and transfer it across the continental divide into Canada for use in Minot,North Dakota and surrounding areas. The joint federal-state project, designed to providedrinking water that meets the “secondary” standards of the Safe Water Drinking Act to localcommunities and rural water systems in eight to ten counties in North Dakota, wouldinclude the withdrawal of over three and one-half billion gallons of water each year.

The concern over the project stems from the fact that the water is taken from theMissouri River Basin and deposited into the Hudson Bay Basin. Because the basins have dis-tinct ecological characteristics and contain different species of fish and other aquatic organ-isms, the withdrawal and transfer of untreated water from one Basin into another couldresult in the introduction of invasive species, which can harm or eliminate indigenousspecies.

Prior LitigationThis litigation is not new. In 2002, the Province of Manitoba, Canada sued the Departmentof the Interior and the Bureau of Reclamation arguing that an initial EnvironmentalAssessment (EA) and subsequent “Finding of No Significant Impact” (FONSI) pursuant toNEPA was arbitrary and capricious due to a failure to take a hard look at the inter-basintransfer of invasive species. In that case, the court agreed and ordered Reclamation to sub-mit an additional EA. When Reclamation issued an Environmental Impact Statement (EIS)addressing water treatment options and reissued the EA and FONSI, Manitoba and theState of Missouri separately sued, again alleging NEPA violations.

Terra Bowling, J.D.

WWaatteerrPPrroojjeeccttDDiivveerrtteeddTransfer halted over invasive species concerns

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NEPAThis time around, the D.C. District Court first looked at impacts of water withdrawal on the MissouriRiver. While the EA found the impacts would be low, the court disagreed. The court felt that the fail-ure of Reclamation to consider the cumulative impact of other projects did not provide the requisite“hard look” under NEPA.

The court next looked at the EA’s analysis of watertransmission risks, specifically the risk of introducinginvasive species. Reclamation had determined that therisks of contaminated water breaching the pipeline werelow. The court disagreed, stating that “It may be that therisk of a breach is low given the pipeline’s construction,but that is not an excuse for Reclamation to refuseentirely to analyze the consequences. When the degree ofpotential harm could be great, i.e., catastrophic, the degreeof analysis and mitigation should also be great.”2

Finally, the court looked at Reclamation’s analysis ofinvasive species impacts on Canada. Reclamation foundthat it was not required by NEPA to take a hard look atthe consequences of biota transfer. The court disagreed,noting that in its NEPA guidance, the Council on

Environmental Quality “has determined that agencies must include analysis of reasonably foreseeabletransboundary effects of proposed actions in their analysis …”3 The court concluded that NEPArequires analysis of transboundary effects resulting from federal actions; therefore, Reclamation mustinclude this analysis in its EA.

ConclusionThe court ordered Reclamation to take a “hard look” at (1) the cumulative impacts of water with-drawal on the water levels of Lake Sakakawea and the Missouri River, and (2) the consequences ofbiota transfer into the Hudson Bay Basin, including Canada. Reclamation will now have to providecloser analysis of the impacts. Although these types of transfers can help solve water quantity issues,it is important toensure that trans -ferred water doesnot bring moreproblems than itsolves.

Endotes1. Manitoba v.

Salazar, 2010U.S. Dist. LEXIS19982 (D.D.C.Mar. 5, 2010).

2. Id. at *34.3. Id. at *36.

Reclamation willnow have to

provide closeranalysis of

the impacts.

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Last year, the National Academy of Sciencesissued a report finding that the oyster farm did notappear to be harming the waters or wildlife of thearea, including the native harbor seal population.7The report criticized the NPS, stating that onereport “selectively presented, over-interpreted ormisrepresented the available scientific informationon potential impacts of the oyster maricultureoperation.”8 The NPS apologized for its erroneousreports and denied that it was trying to force Lunnyfrom his lease before it expires in 2012.9

Lease ExtensionsThe National Park Service indicated that Lunny’sland would revert to wilderness when the leaseexpired in 2012, as required by federal law.10

Lunny lobbied for a lease extension.11 SenatorDianne Feinstein got involved in the dispute ataround this time.12 She added a rider to theInterior Depar tment’s appropriations bill thatwould have required the Department to extendpermits by ten years.13 Soon after, however, theCalifornia Coastal Commission issued Lunny a$61,250 fine for placing shellfish in an area setaside for harbor seal protection. Lunny claimedthe incident was the result of a mistake by one ofhis employees.14 Senator Feinstein reacted by mod-ifying her bill to allow, but not require, a permitextension.15 Although Lunny’s lease has not beenextended, in February, the NPS issued its first ten-

year lease to anotherrancher withinthe Point ReyesNationalSeashore.16

ConclusionMany membersof the communitysup port the ranch-ers, noting its histori-cal, as well as practical,importance to the area.17

Others worry that extend-ing the leases may set aprecedent for other private or commercial oper-ations in the nation’s national parks.1 8

Regardless, the contentious fight between the NPSand Lunny bring reminders of the struggle to allo-cate our shores for multiple uses.

Endnote1. National Academy of Sciences, Shellfish,

Mariculture in Drakes Estero, Point Reyes NationalSeashore, California (2009).

2. Id. 3. Id.4. Julie Cart, A Hotbed of Contention, L.A. TIMES,

Dec. 27, 2009, at A41. 5. NAS, supra note 1.6. Leslie Kaufman, Debate Flares on Limits of

Nature and Commerce in Parks, N.Y. TIMES, Nov.1, 2009.

7. NAS, supra note 1. 8. Id.9. Cart, supra note 4.10. Kaufman, supra note 6. 11. Cart, supra note 4.12. Rob Rogers, Park Service Gives west Marin

Ranches a Longer Lease on Life, MARININDEPENDENT JOURNAL, Feb. 13, 2010.

13. Cart, supra note 4.14. Id.15. Id.16. Rogers, supra note 12.17. Kaufman, supra note 6.18. Id.


Nature v. Commerce, from page 7

. . . one report “selectivelypresented, over-interpreted

or misrepresented the available scientific

information on potentialimpacts of the oyster

mariculture operation.”

Sea Grant Law CenterKinard Hall, Wing E, Room 258P.O. Box 1848University, MS 38677-1848

The University of Mississippi

THE SANDBAR

Challenges of Natural ResourceEconomics and Policy (CNREP)

2010

New Orleans, LouisianaMay 26-28, 2010The third national forum will highlightthe status and challenges of socioeco-nomic research and policy in coastalsystems. The conference goal is to gen-erate future collaborative efforts whileproviding a prominent venue for cur-rent research, extension, and policywork. Keynote discussions will be partof a plenary discussion on the issue ofclimate change and coastal communityvulnerability. Visit www.cnrep.lsu.edu<http://www.cnrep.lsu.edu> for moreinformation.

Water Matters! Global WaterConference

Pittsburgh, PennsylvaniaJune 3, 2010The United Nations EnvironmentProgramme appointed Pittsburgh to

be North America’s host for WorldEnvironment Day 2010. This confer-ence is part of Pittsburgh’s answer tothe call. The conference will focus onthe future for and protection of thenation’s waters and will highlight theregion’s leading water innovators,problem solvers, and applied tech-nologies. The conference is open tothe public and intended for all audi-ences. The cost to attend is $25. Forregistration or more information visithttp://www.pittsburghwed.com/watermatters/ .

The Coastal Society 22nd

International Conference

Wilmington, North CarolinaJune 13-16, 2010The conference, themed “ShiftingShorelines: Adapting to the Future,”will feature presentations, panels,and posters on adapting to the chang-ing landscape of ocean and coastalresource management. The confer-ence, which provides a forum for

interdisciplinary education and dis-cussion on coastal issues, is open tonon-members. For more information,visit http://www.thecoastalsociety.org/conference/tcs22/index.html .

The Working Waterways &Waterfronts National Symposium

on Water Access 2010

Portland, MaineSeptember 27-30, 2010The 2010 Working Waterways andWaterfronts National Symposium onWater Access will provide a forum fordiverse waterfront users to addresscommon dilemmas and share solu-tions. Building on the inaugural sym-posium in Norfolk, Virginia, in 2007,participants will increase awarenessof the economic, social, cultural, andenvironmental values of waterfronts,and the important role of water-dependent uses in sustainable coastalcommunities. Visit http://www.wat-eraccessus.com/ for more details.

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