Water Resources Committee Report

Federal Developments

A. Alaska

1. Judicial

In State of Alaska v. United States of America, the State of Alaska filed suit “pursuant to the Quiet Title Act, 28 U.S.C. § 2409a seeking to quiet title to submerged lands underlying the Fortymile River” in Alaska. Alaska argued that because the Fortymile River is navigable, under the Equal Footing Doctrine, the title belonged to the State. Both parties filed motions for summary judgment. The court held that mere depth alone is insufficient to establish navigability as a matter of law. The court further held that susceptibility to downstream-only floating for recreation or government purposes requires a case-by-case analysis to determine navigability. Finally, the court held that customary modes of trade and travel used to determine navigability must have been commonly used in Alaska prior to statehood, but they need not have been used for commerce.

In 2021 and 2022, the Federal Subsistence Board (FSB) and the Kuskokwim River Inter-Tribal Fish Commission field commissioner exercised their authority under the Alaska National Interest Lands Conservation Act (ANILCA) and issued emergency special actions to close a section of the Kuskokwim River (the River) within the Yukon Delta National Wildlife Refuge to non-subsistence uses. Also in 2021 and 2022, Alaska issued its own emergency order that permitted fishing on the same stretch of the River for non-federally recognized subsistence harvest. The United States requested, and was granted, a preliminary injunction to stop Alaska from issuing emergency orders that open harvest on the River and from taking similar action in contravention of federal orders under Title VIII of ANILCA. The U.S. and Alaska both filed motions for summary judgment with the United States District Court of Alaska. The court held that they are

[B]ound by the Katie John trilogy of cases to find that Title VIII's rural subsistence priority applies to “navigable waters in which the United States has reserved water rights,” and that the Secretaries lawfully designated the Kuskokwim River in the Refuge as a navigable water subject to Title VIII of ANILCA.

Based on this holding the court ordered a permanent injunction against Alaska actions that interfere with or are in contravention of federal orders addressing ANILCA Title VIII and applicable regulations.

B. Nevada

1. Judicial

In Baker Ranches, Inc v. Haaland, originally filed in state court and removed to federal court, Plaintiffs sought to enjoin the federal government Defendants from certain actions allegedly diverting the Baker and Lehman Creeks in violation of a state court water rights decree. The federal district remanded the case under the prior exclusive jurisdiction doctrine. Defendants appealed, and the Ninth Circuit Court of Appeals vacated the remand order and remanded for the federal district court to consider whether the United States waived its sovereign immunity in the first instance. On remand, Plaintiffs and Defendants filed two competing motions: Defendants filed a motion to dismiss, and Plaintiffs filed a motion to remand. The federal district court determined the United States had not waived its sovereign immunity under the McCarran Amendment relative to the claims in the case and granted the Defendants’ motion to dismiss and denied the motion to remand. An appeal has been filed in the Ninth Circuit Court of Appeals.

C. New Mexico and Texas

1. Judicial

In a 5-4 opinion in Texas v. New Mexico, the U.S. Supreme Court held that the United States has valid claims under the Rio Grande Compact and rejected a consent decree proposed by Texas and New Mexico that would dispose of the United States’ claims. Texas filed this original jurisdiction case in 2013, against New Mexico and Colorado, alleging, that excessive groundwater pumping in New Mexico was depleting supplies of Rio Grande water bound for Texas in violation of Rio Grande Compact. The Compact, approved by Congress in 1938, is an interstate agreement that apportions the Rio Grande River among Colorado, New Mexico, and Texas. Under the Compact, New Mexico must deliver a certain amount of water to the Elephant Butte Reservoir, located in southern New Mexico. Then, the Federal Bureau of Reclamation releases water from the Reservoir for delivery to two water districts in New Mexico and Texas. The United States was allowed by the Court to intervene. A Special Master was appointed to adjudicate the case. After the denial of summary judgment, discovery, the initial phase of trial, and settlement negotiations involving a mediator, Texas and New Mexico sought approval of a proposed consent decree that would have resolved case and codified a new methodology for allocating each State’s share of the Rio Grande’s waters. The United States objected but the Special Master case recommended approval of consent decree. The United States filed exceptions to Special Master’s report and prevailed in the Supreme Court. The parties participated in a mediation in Washington, D.C., in mid-December, but no resolution was reached. The parties are expected to participate in another mediation in February 2025.

The United States during the Biden Administration filed suit against State of Texas and its Governor, asserting a claim that the installation of 1,000-foot floating barrier on the Rio Grande violated the Rivers and Harbors Appropriation Act, which prohibits the installation of an obstruction of a navigable river without Congress’ approval, and sought injunctive relief to compel removal of the barrier. The United States District Court for the Western District of Texas granted the United States’ application for a preliminary injunction, and the Texas defendants filed an interlocutory appeal. The United States Court of Appeals for the Fifth Circuit stayed the injunction pending appeal.

On rehearing en banc, the Fifth Circuit dissolved the stay, reversed the district court’s order granting preliminary injunction and remanded with instructions to vacate the injunction. The Court held that the United States could not demonstrate likelihood of success on the merits of its claim that the disputed stretch of Rio Grande where the Texas Governor had installed the barrier was navigable, and therefore could not establish that the barrier (which had not been approved by Congress) violated the Rivers and Harbors Appropriation Act. The Court determined that a study performed by United States Army Corps of Engineers in 1975 did not demonstrate that improvements to the disputed segment of river were reasonable, as basis for finding that the disputed segment, if not currently used for interstate commerce, was nonetheless navigable. The Court further concluded that the Rivers and Harbors Appropriation Act, which authorized issuance of injunction to compel removal of any structure erected in violation of Act, did not relieve the district court of its obligation to analyze the criteria for determining whether to issue a preliminary injunction after a finding of likelihood of success on the merits. The Court went on to hold that the district court’s finding that United States was likely to suffer irreparable harm absent the issuance of an preliminary injunction was clearly erroneous. The Court also found that the district court clearly erroneously found that a balancing of the equities and the public interest weighed in favor of the issuance of a preliminary injunction requiring the Governor to move the barrier to the Texas side of river bank, but not remove it altogether.

State Developments

A. Alaska

1. Judicial

McCavit v. Lacher centers on a riparian rights dispute among property owners of adjoining property on Wasilla Lake. The McCavits built a dock extension that extended in the direction of the Lachers’ property. The Lachers objected to the dock extension and sued the McCavits. In a 2019 appeal filed in this case, the Alaska Supreme Court held that the rule of reasonableness is applied in the determination of riparian landowners’ rights and remanded the case for the lower courts to apply the rule of reasonableness. The superior court ruled in favor of the Lachers holding that the McCavits unreasonably interfered with the Lachers’ riparian rights. The McCavits appealed. The Alaska Supreme Court held that the superior court did not abuse their discretion when applying the reasonableness rule finding that the dock extension unreasonably interfered with Lachers’ riparian water rights under that rule.

2. Administrative

The United States Environmental Protection Agency (EPA) announced on June 6, 2024, that the Alaska’s water quality standards needed to be updated based on more accurate fish consumption rates to protect communities from toxic pollution. On August 26, 2024, Alaska provided the EPA with its amended 18 AAC 70: Water Quality Standards.

B. Arizona

1. Legislative

The Legislature enacted several water-related in 2024. House Bill 2548 requires additional consumer disclosures regarding water supply availability for sales of five parcels of land or less in unincorporated county areas. The law adds seller affidavit requirements about the source of hauled water and an expanded certification whether the property sale is subject to subdivision laws.

Senate Bill 1181 authorizes a water provider that applies for a new “alternative” designation of assured water supply to elect to shift member land replenishment obligations to the water provider over a period of ten years. The intent of this provision is to provide newly designated water providers with additional time to assume parcel replenishment costs.

Senate Bill 1242 added “public service corporations” regulated by the Arizona Corporation Commission as eligible entities to transport water away from the Harquahala Irrigation Non-Expansion Area so long as the costs of doing so are collected from the customers of the public service corporation’s water district where the water is used. Up to ten percent of the total Harquahala groundwater basin water available for transportation can be used in La Paz County.

Senate Bill 1081 authorizes the Arizona Department of Water Resources (ADWR) to designate a city or town within the Buckeye waterlogged area as having an assured water supply under certain conditions. The conditions include that the city or town must contract with the irrigation and water conservation district for a term of at least 100 years.

House Bill 2368 grandfathers transportation of groundwater from the upper San Pedro groundwater basin to the Douglas Active Management Area if the transportation was occurring before December 1, 2022.

2. Judicial

Arizona’s long-running stream adjudications continue in the Superior Courts with a special master presiding over contested cases.

3. Administrative

On August 7, 2024, the ADWR proposed a rulemaking to establish an alternative designation of assured water supply process option for undesignated water providers. The rulemaking is continuing at the time of this summary.

C. California

1. Legislative

On January 1, 2024, Senate Bill 659 came into effect, requiring the Department of Water Resources (DWR) to provide actionable recommendations to develop additional groundwater recharge opportunities that increase the recharge of California’s groundwater basins as part of its 2028 update to the California Water Plan (CWP), and in each subsequent update thereafter. DWR must consult with the State Water Resources Control Board, the nine Regional Water Quality Control Boards, and CWP advisory committee in developing its recommendations.

On July 10, 2023, Governor Newsom signed Senate Bill 122 (SB 122) into law. SB 122 amends California Water Code § 1241, to not require appropriative water rights for diversion of “floodflows” for groundwater recharge between July 10, 2023 and January 1, 2029. A similar change appeared a few months earlier in Executive Orders N-4-23 and N-7-23, which concerned flood diversions in response to the flooding emergency at Tulare Lake in 2023. SB 122 requires that the diverter provide notice to the State Water Resources Control Board (SWRCB) and the applicable groundwater sustainability agency 48 hours before beginning the diversion, if possible, and no later than 48 hours after commencing the initial diversion. The diverter must file a report with SWRCB 14 days after commencement of the diversion and no later than 15 days after cessation.

On September 22, 2024, Assembly Bill 460 was signed into law (AB 460), which increased certain penalties for violations of permits, cease and desist orders, and curtailments orders, and required the SWRCB to adjust, annually and based on inflation, all penalties starting January 1, 2026. Penalties for water rights violations established in the 1980s had not been increased since then. Penalties for a variety of violations, including permits, orders, and requirements related to groundwater recharge flood diversions were increased to $1,000 per day for each day a violation persists. For violations of cease and desist orders the fine is up to $10,000 per day for each day of the violation if the violation occurs “in a critically dry year immediately preceded by two or more consecutive below normal, dry, or critically dry years or during a period for which the Governor” has declared a state of emergency. If the violation does not occur during one of these years, the penalty is $2,500 for each acre-foot of water diverted in violation of the order. The fine for violations of curtailment orders is now up to $10,000 per day for each day of the violation or $2,500 for each acre-foot of water diverted in violation of the order.

2. Judicial

On March 15, 2024, the Sacramento County Superior Court found that the SWRCB substitute environmental document for Phase I of the San Francisco Bay/Sacramento-San Joaquin Delta Water Quality Control Plan (Bay-Delta Plan) did not violate the California Environmental Quality Act, the Porter-Cologne Act, the public trust doctrine, or the California Constitution. The Bay-Delta Plan establishes water quality control measures and flow requirements to ensure reasonable protection of beneficial uses in the watershed. This litigation challenged the SWRCB’s 2018 amendments to the Bay-Delta Plan that would (1) increase flows in the Lower San Joaquin River (and its three major tributaries) for fish health and (2) increase the level of salinity allowed in the southern Delta. These amendments would result in less water available for diversion by existing license and permit holders for agricultural and municipal uses. Twelve petitioners, who hold water rights impacted by the plan or who represent environmental interests, filed lawsuits to have the Bay-Delta Plan and/or its substitute environmental document set aside. While the trial court denied all of petitioners’ claims, the order has been appealed.

On May 15, 2024, the Kings County Farm Bureau filed a Complaint and Petition for Writ of Mandate against the SWRCB, challenging the SWRCB’s Resolution No. 2024-0012. This resolution designated the Tulare Lake Groundwater Subbasin as probationary under the Sustainable Groundwater Management Act (SGMA). The Kings County Farm Bureau’s action challenges the resolution on several grounds, including that the resolution violated SGMA, and requests that the court set aside the resolution and enjoin SWCRB from enforcing certain measures resulting therefrom. The Tulare Lake Groundwater Subbasin is the first basin to be placed under probation since California began regulating groundwater under SGMA in 2014. On September 12, 2024, the court issued a preliminary injunction in this action to halt the enforcement of the SWRCB’s resolution. Resolution of the matter on the merits is still pending.

The Delta Conveyance Project (DCP) is a proposed water conveyance tunnel that would transport water from the Sacramento River north of the Sacramento San Joaquin Delta to south of the Delta where it would connect with the State Water Project (SWP). In June 2024, the trial court granted a preliminary injunction against the Department of Water Resources (DWR) related to the DCP’s geotechnical activities based on section 85225 of the Delta Reform Act. In response, DWR posted a draft certification of consistency for the 2024-2026 Proposed Geotechnical Activities. On October 8, a certification of consistency was filed with the Delta Stewardship Council. Since then, many appeals have been filed challenging the consistency determination. In February 2024, DWR filed a petition with the State Water Resources Control Board to change the point of diversion of its SWP water rights to build the tunnel. The petition has been opposed. The SWRCB’s Administrative Hearings Office is holding pre-hearing conferences and expects to hold a hearing in January 2025.

3. Administrative

In January 2024, Governor Newsom’s office released its California Salmon Strategy for a Hotter, Drier Future: Restoring Aquatic Ecosystems in the Age of Climate Change (California Salmon Strategy). The California Salmon Strategy outlines actions that State agencies are taking and future actions that are needed to stabilize and recover salmon populations. These actions are categorized into six priorities, three of which concern surface water: removal of barriers and modernization of infrastructure for salmon migration; restoration and expansion of habitat for salmon spawning and rearing; and protection of water flows and water quality in key rivers at the right times to support salmon. The actions highlighted in these priorities include the removal of certain dams, seasonal inundation of at least 10,000 acres of floodplain habitat by 2026, and actions related to instream flows of the Scott and Shasta Rivers, Ventura River, and South Fork Eel River, among others.

In 2024, the SWRCB began holding hearings to designate certain groundwater basins as probationary under the SGMA. SGMA permits the SWRCB to intervene in management of groundwater basins where the Groundwater Sustainability Plans (GSP) have been found inadequate by the DWR. During probation, SWRCB requires groundwater pumpers to monitor and report extraction, and to pay fees to SWRCB, while SWRCB works with the local groundwater sustainability agency or agencies to improve the basin’s GSP.

On April 16, 2024, SWRCB held a hearing to designate the Tulare Lake Subbasin as a probationary basin. The first Tulare Lake Subbasin was the first basin to be designated probationary under SGMA. The designation has been challenged in court, and plaintiffs have obtained a preliminary injunction to halt enforcement of the probationary measures. On September 17, 2024, SWRCB held a hearing to designate the Tule Subbasin as a probationary basin. The Tule Subbasin was subsequently placed on probation. On February 20, 2025, SWRCB will hold a hearing to determine whether the Kern Subbasin should be designated as probationary.

On January 18, 2024, the DWR completed review of all GSPs for high and medium priority groundwater basins. Of the basins required to submit GSPs, there are seventy-one basins with approved GSPs, thirteen basins with incomplete GSPs, and six basins with inadequate GSPs.

In March 2024, the DWR released the State Water Project Long-Term Drought Plan. The SWP is a water storage and delivery system that DWR operates and maintains for purpose of supplying water and power for residential and agricultural use. The Long-Term Drought Plan attempts to prepare for future drought conditions, by assessing impacts of drought on SWP, reviewing past actions that DWR has taken during times of drought, and highlighting actions that SWP has taken to prepare for future drought.

On September 4, 2024, Governor Gavin Newsom issued Executive Order N-3-24, which terminated the drought state of emergency in nineteen out of fifty-eight California counties, including Imperial, Inyo, Los Angeles, Marin, Mendocino, Mono, Monterey, Orange, Riverside, San Bernardino, San Diego, San Francisco, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Sonoma, and Ventura. Through a series of declarations in 2021, the Governor had proclaimed a drought state of emergency in all counties, which allowed for increased regulatory flexibility, conservation goal setting, and faster regulatory responses to drought conditions. Executive Order N-3-24 also rescinded some provisions of prior orders applicable to the remaining counties, and rescinded provisions of prior orders that placed conditions on groundwater well permitting authorities.

A water rights hearing for the Sites Reservoir is underway at the State Water Resources Control Board (SWRCB) to determine the Sites Project Authority’s (Authority) water rights. The rebuttal portions of the hearing, the last items on the schedule, are set for January and February 2025. The Authority seeks to divert no more than 1,500,000 acre-feet per year between September 1 and June 14 from the Sacramento River, Funks Creek, and Corral Creek. At issue is the validity of the Authority’s state-filed applications, which could change the priority of established appropriators. The SWRCB will determine whether the applications are approved and if so, whether conditions should be included. The SWRCB will consider area of origin protections, reasonable and beneficial use, public interests, and water availability, among other factors, when making its determination.

D. Colorado

1. Legislative

In response to changes in federal regulation after Sackett v. U.S. Environmental Protection Agency, 598 U.S. 651 (2023), HB24-1379 requires the Water Quality Control Commission in the Colorado Department of Public Health and the Environment (CDPHE) to promulgate rules for a state dredge and fill program by December 31, 2025.

HB24-1436 is a ballot measure approved by voters in the November 2024 election that allows the state to keep and spend all revenue from the existing tax on the net proceeds of licensed sports betting. The funds will be transferred to the Water Plan Implementation Cash Fund.

SB24-148 authorizes a pilot program to evaluate precipitation harvesting system designs that are integrated with temporary storm water detention and infiltration facilities. Precipitation captured for beneficial use must still be replaced per C.RS. 37-60-115(6)(c) and any water in the facility that is not part of the precipitation harvesting must be managed and released to the stream system pursuant to C.R.S. 37-92-602(8).

SB24-197 implements some of the recommendations from the Colorado River Drought Task force created by SB23-295. SB24-197 allows the owner of a decreed water storage right to loan water to the Colorado Water Conservation Board (CWCB) to preserve or improve the natural environment for stream reaches in which the CWCB does not already hold a decreed instream flow water right.The bill also adds certain protections for electric utilities in Colorado Water Division 6 that have owned their water right since January 1, 2019, including protections from a presumption of abandonment for non-use of their water rights and protections of their historical consumptive use quantification notwithstanding reductions in water use. Further, the bill amends 37-92-308(12) to clarify that agricultural protection water rights are now available in all water divisions and a person may apply for a substitute water supply plan for those rights.

2. Judicial

In Parker Water & Sanitation District v. Rein, Parker Water and Sanitation District (Parker) challenged the Colorado State Engineer’s imposition of a permit condition on Parker’s groundwater permits that limited the total volume of nontributary groundwater that Parker could withdrawal from Denver Basin aquifers over the life of the well permits. Parker filed suit in water court, asserting that the State Engineer lacked authority to impose a total volumetric limit on the amount of nontributary groundwater. The water court ruled in favor of the State Engineer and Parker appealed.

The Colorado Supreme Court agreed with the water court and ruled that C.R.S. § 37-90-137 and the Statewide Nontributary Groundwater Rules unambiguously set volumetric limits on withdrawals of nontributary Denver Basin groundwater equal to the quantity of water underlying the landowner’s property at the time that the permit is issued and the State Engineer has authority to include this volumetric limit in nontributary groundwater permits. Well permits issued under SB 213 are also subject to this total volumetric limit. The Court also found that a volumetric limitation is implied in water court decrees determining a right to use nontributary groundwater unless the decree explicitly provides otherwise.

In City of Sterling & City of Fort Collins v. Lazy D Grazing Association, ranch manager Lazy D sought and received a determination by the water court that groundwater underlying the ranch was nontributary. The Cities of Sterling and Fort Collins appealed, asserting that the water court improperly gave the State Engineer’s determination that the groundwater was nontributary a presumption of truthfulness. The Supreme Court ruled that only the State Engineer’s factual determinations are entitled to a rebuttable presumption of truthfulness. The water court improperly extended the presumption to the State Engineer’s legal conclusion that the groundwater was nontributary. Still, the Supreme Court determined that this was harmless error because the water court did not rely on the presumption in finding that the groundwater nontributary.

In United States v. City of Golden, the Supreme Court agreed with the water court that the negotiated 2013 Green Mountain Reservoir Administrative Protocol (Protocol) is consistent with Colorado’s prior appropriation doctrine and with the so-called “Blue River Decree,” a series of decrees and stipulations between Denver, Colorado Springs, the United States, and other entities with interests in the Colorado-Big Thompson Project. The Court also ruled that the water court did not err when it decided not to perform a water rights injury analysis in evaluating the Protocol because the proceeding concerned interpretation of an existing decree.

E. Idaho

1. Legislative

Senate Bill 1341 codifies the area of common ground water supply for the Eastern Snake Plain Aquifer (ESPA) delivery call proceedings. The ESPA area of common ground water supply is important because ground water users within the boundary may be curtailed in the ESPA delivery call proceedings. This act permits the Director to expand the boundary in the future to include tributary basins that affect the ESPA, but the Director must first give notice and hold a hearing prior to the expansion. The Director cannot expand the boundary to include critical ground water areas or ground water management areas with approved ground water management plans unless the Director determines that the ground water management plan is insufficient.

House Bill 687 authorizes the Director to commence the Kootenai River Basin Adjudication.

2. Judicial

In South Valley Ground Water District v. Idaho Department of Water Resources, the Idaho Supreme Court reaffirmed that conjunctive administration of interconnected surface and ground water rights is the law in Idaho and held that the Director of the Idaho Department of Water Resources (IDWR) has the authority to conjunctively administer surface and ground water rights using the State’s Ground Water Act. The court also held that the Director is not required to establish an area of common ground water supply under IDWR’s Conjunctive Management Rules prior to initiating an administrative proceeding to curtail ground water pumping.

In Hastings v. Idaho Department of Water Resources, the Idaho Supreme Court held that the statute of limitations accrues on a breach of a consent order when the Director knew or reasonably should have known the party violated the consent order. The court held that the earliest possible date when IDWR ought to have reasonably known that Hastings did not intend to comply with the consent order was when Hastings filed a declaratory judgment action against IDWR.

In Whittaker v. Idaho Department of Water Resources, the Idaho Supreme Court upheld the Director’s final order in a water right transfer proceeding in which the Director used the historical confluence site (as opposed to the modern confluence site) to determine that the transfer would not injure upstream water users. The court concluded that by using the historical confluence site, the proposed point of diversion would not injure other users in the absence of an unauthorized diversion by another user.

3. Administrative

In April of 2024, IDWR issued its forecast supply order in an ongoing delivery call proceeding, concluding that junior ground water pumping would cause 74,100 acre-feet of injury to senior water right holders. The Director then issued an order curtailing more than 5,000 junior ground water users in the ESPA not in compliance with an approved mitigation plan. The junior ground water users and the senior surface water users ultimately reached an interim settlement agreement to avoid curtailment. The parties recently entered into a long-term settlement agreement and it has been submitted to the Department for review and approval.

F. Kansas

1. Legislative

The Kansas Legislature passed House Bill 2634, amending K.S.A. 82a-1038 to provide additional corrective control provision for the chief engineer to consider when issuing orders of designation for Local Enhancement Management Areas (LEMA) and Intensive Groundwater Use Control Area (IGUCA). Specifically, the chief engineer now has discretion to allow water rights associated with a LEMA or IGUCA plan to be assigned multi-year allocations that allow water use in excess of the water right’s annual authorized quantity in a single year, provided that overall water use is reduced during the term of the LEMA or IGUCA.

2. Administrative

On February 2, 2024, an initial order was issued by the Presiding Officer approving the cities of Hays and Russell’s application for “Hays/Russell-R9 Ranch” transfer water. Review of order remains pending before the Water Transfer Hearing Panel.

In 2024, DWR convened the Rattlesnake Creek Basin (RCB) working group to develop a voluntary plan to address the impairment of the senior water right held by U.S. Fish and Wildlife Service for operation of the Quivira National Wildlife Refuge (QNWR), and to avoid water rights administration with the RCB in 2025. The group’s efforts throughout 2024 resulted in water use reduction commitments that will reduce streamflow depletions by approximately 3,300 acre-feet during 2025, which the Service found adequate to pause its request to secure water for 2025. Water use reductions were facilitated by a deposit program through the Central Kansas Water Bank (CKWB). Water right owners who agreed to water use reductions were compensated using the approximately $4,000,000 in State Water Plan funds that Kansas legislature previously provided to Kansas Dept. of Agriculture to address this issue, and additional private funding raised by RCB stakeholders. Stakeholders established a program to assist water right owners in managing remaining water quantities. RCB working group will continue to meet in an effort to secure additional reductions for 2026 and beyond.

G. Montana

1. Legislative

Montana’s biennial legislature did not meet in 2024. However, as part of a comprehensive water review process, the Department of Natural Resources and Conservation (DNRC) facilitated a stakeholder working group which developed several pieces of legislation for proposal to the 2025 legislature.

2. Judicial

The Montana Supreme Court decided five water rights cases in 2024. The first two arose out of Montana’s statewide water rights adjudication being conducted before the Montana Water Court. Montana’s adjudication charges the Water Court to determine the elements of all state-based and federal reserved water rights with priority dates older than July 1, 1973 (referring to as “existing rights”), the effective date of Montana’s Water Use Act.

In In re Schutter, the court clarified the State of Montana’s right to assert an ownership interest in an existing water right when the decreed place of use includes a mix of private land and leased State school trust land. The case expands on the 1985 Pettibone ruling that the State of Montana owns water rights appurtenant to state school trust lands, even if the land is leased to a private third party. Schutter involved the question of whether Pettibone also applies when the point of diversion – in this case a groundwater well – is on private land. The Court held it does, although noted that it does not mean the State owns the well itself. Rather, the Court ruled that if a water right is partially appurtenant to state land, the State can be decreed as a co-owner of the water right.

The second adjudication case addressed whether a private ditch company may be decreed a service area. Montana water law recognizes services areas as an area where an appropriator may deliver water to residents, company shareholders or others. However, in Parrot Ditch Co. v. Ashcraft, the Supreme Court ruled a private ditch company seeking a decreed service area must provide evidence it operated in this manner prior to the 1973 effective date of the Water Use Act. The Court upheld the Water Court’s conclusion that the company failed to provide evidence of the historical service area it sought.

The Supreme Court also addressed service areas in Town of Kevin v. Montana DNRC, although not in an adjudication context. This case involved the City of Shelby’s application to expand its municipal service area to include service to several smaller towns nearby. Kevin, another town in the vicinity that already was providing service to the smaller towns objected to Shelby’s application, arguing Montana’s water rights change criteria require an appropriator to provide evidence of consent from landowners within the proposed expanded area. The Water Court, which also has jurisdiction to hear appeals of administrative decisions, concluded consent can be demonstrated through evidence of contracts with the towns within the expanded area. The Supreme Court agreed, although it remanded the case for clarification as to whether all the necessary contracts were in place.

The Montana court also decided two cases arising out of the administration of water rights. In Montana, state district courts oversee water right administration based on decreed issued by the Water Court or older district court decisions. In Hill v. Ellinghouse, a state district court used the state’s statutory certification process to ask the Water Court to tabulate the relative priority of a stock water right had been categorically exempt from the adjudication prior to 2019. The Court upheld the Water Court’s interpretation of several historical conveyance documents to conclude the stock water right held an existing right with a senior priority date.

The Montana Supreme Court also addressed water rights administration in Little Big Warm Ranch v. Doll. This case involved two different water rights owned by two different parties that shared a common priority date. The two rights specified different diversion points on the same stream. The upstream appropriator argued it held a superior right to the downstream right. The Court disagreed and upheld the district court’s determination that in times of shortage, the parties’ common priority dates justified reduced use on a pro rata basis.

3. Administrative

In 2024, modifications to Montana’s Water Use Act designed to streamline the process to obtain new permits for water use and to change existing appropriations took effect. DNRC adopted rules to implement the changes, which took effect as of January 1, 2024. The statutory modifications and new rules shorten the application review timeframes, expand public comment opportunity on applications, and generally reorganize the rules for new appropriations.

H. Nebraska

1. Judicial

The Nebraska Supreme Court determined legal counsel’s permissible role in prosecuting and deciding an administrative hearing in Uhrich & Brown Ltd. Partnership v. Middle Republican Natural Resources District. Under the Nebraska Groundwater Management and Protection Act, locally elected natural resources districts (NRDs) have significant regulatory authority over groundwater use in the state. NRDs adopt rules governing groundwater use. When a groundwater user has violated those rules, the NRD may issue cease and desist orders and convene administrative hearings. NRDs typically retain counsel to assist with that process.

In this case, after a landowner had allegedly violated NRD pumping regulations, the NRD’s counsel issued a cease-and-desist order and represented the NRD at the administrative hearing. The NRD’s Board then issued an order assessing penalties. Before issuing the order, the Board acknowledged it had “consulted with [the same] legal counsel, made preliminary determinations, and requested that legal counsel draft appropriate documents” for the order.

On appeal, the district court reversed and vacated the NRD Board’s order. The court determined the same counsel had improperly served as both the NRD’s counsel in the decision-making process and as investigator and prosecutor for the NRD.

The Nebraska Supreme Court agreed. Administrative adjudicators “are accorded a presumption of honesty and integrity, and of being qualified, unbiased, and unprejudiced.” The “mere fact that investigative, prosecutorial, and adjudicative functions are combined” in one agency does not necessarily create a due process violation.

But that deference has limits. When, as here, advocacy and decision-making roles are combined, true objectivity, a constitutionally necessary characteristic of an adjudicator, is compromised. The court determined the counsel’s “dual involvement in prosecutorial and adjudicatory functions” rendered the NRD Board’s order a deprivation of due process.

The decision serves as a reminder for lawyers and administrative agencies to maintain separation between prosecutorial and decision-making roles. The prosecuting attorney generally may not aid in reaching a decision. The court acknowledged “[t]he problem here could have been avoided” if the NRD Board had “relay[ed] its ultimate decisions to agency counsel.”

Nebraska’s seminal groundwater-rights case reached the 90-year mark. In Olson v. City of Wahoo, the Nebraska Supreme Court adopted a unique rule of modified-correlative groundwater rights. Under the doctrine: (1) each landowner is entitled to the “subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters;” and (2) “if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole.”

The Nebraska Legislature has since codified Olson. The Legislature and courts have also modernized it to account for changing conditions. A recent Nebraska Lawyer article traced the decision’s 90-year legacy.

2. Administrative

Nebraska officials have recently questioned the viability of two major water projects in the state. In 2022, the Nebraska Legislature adopted legislation providing for the construction of (1) a canal in Perkins County, Nebraska, consistent with the [South Platte River Compact “to] protect[] Nebraska’s full entitlement to flows of the South Platte River;” and (2) a 4,000-acre lake between Lincoln and Omaha. But on separate occasions, officials have suggested these projects may not proceed.

In June 2024, Governor Jim Pillen said he may back down from the Perkins County canal project. It has faced resistance from Colorado officials who oppose Nebraska’s potential use of eminent domain in Colorado. At a town hall, Governor Pillen stated, “[I]f [the canal] gets tied up and lawyers start taking it all, I would go to the Unicameral and abandon it.” Other reporting suggests Nebraska will proceed.

Additionally, lawmakers have scrapped initially proposed sites for the 4,000 acre manmade lake. While two sites were previously under consideration, a study persuaded lawmakers neither would be economically feasible due to engineering and environmental obstacles. One lawmaker has suggested the state may discard the lake idea altogether.

I. Nevada

1. Legislative

Bulletin 25-10: Joint Interim Standing Committee on Natural Resources and Subcommittee on Public Lands (2025), issued October 22, 2024, lists the following recommendations for water legislation during the 83^rd Session (2025) of the Nevada Legislature:

1. Supporting the Nevada State Cloud Seeding Program. (BDR S–389).
2. Authorizing “a board of county commissioners to establish a groundwater board for areas designated as a groundwater basin in need of further administration by the State Engineer pursuant to the provisions of NRS 534.030. (BDR 48–385).”
3. Revising NRS 533.0243 to extend the time limit of a temporary conversion of agricultural water rights for wildlife purposes or to improve the quality or flow of water from three to ten years. (BDR 48–391).
4. Revising the provisions of water law regarding special assessments, and appropriate $1 million to the Division of Water Resources of the State Department of Conservation and 1 Natural Resources (DCNR) to support the Nevada State Engineer and the Nevada Water Initiative. (BDR 48–386).
5. Adding various provisions to Chapter 445A of NRS to encourage and promote water reuse as a policy of the State; authorizing the State Environmental Commission to consider the establishment of a water quality standard variance, pursuant to federal law, which meets certain criteria; defining “eligible property owner” in Chapter 439 of NRS for purposes of a district board of health voluntary financial assistance program to pay for costs related to abandoning existing septic systems served by a municipal water system to connect to community sewerage; and the establishment of the Account for Retiring Water Rights in the State General Fund and the Nevada Voluntary Water Rights Retirement Program, which would expire on June 30, 2035. (BDR 48–383).
6. Creating the Nevada Conservation and Recreation Program, consisting of the Nevada Water Buy-Back Initiative and a grant program; and establishing an advisory committee for the Initiative. (BDR 48–384).
7. Revising various provisions of water law that would encourage water conservation. (BDR 48–379).

2. Judicial

The Nevada Supreme Court ruled in Sullivan v. Lincoln County. Water Dist. that the State Engineer had implied statutory authority to conjunctively manage surface and groundwater rights and to jointly administer such rights across multiple hydrographic groundwater basins to protect senior vested rights; the State Engineer had implied statutory authority to make a factual finding as to the boundaries of the new super basin and to determine the maximum amount of water that could be pumped from the super basin; the State Engineer had implied statutory authority to make factual determinations as to the boundaries of a source of water to protect endangered species against future appropriations; and water owners’ due process rights were not violated in the State Engineer’s proceedings adopting Order 1309. The Nevada Supreme Court remanded for the district court to continue its review to determine whether substantial evidence supports Order 1309 and for further proceedings in accordance with its opinion.

On October 21, 2024, a state district court entered its order denying several petitions for judicial review and lifting its stay of State Engineer Order 1329, holding, among other determinations, the State Engineer had authority to enter Order 1329 establishing interim procedures for managing groundwater appropriations to prevent the increase in capture and conflict with rights decreed pursuant to the Humboldt River Adjudication and Order 1329 was supported by substantial evidence.

On November 1, 2024, a state district court entered its findings of fact, judgment and decree adjudicating relative rights in and to all waters, both surface and underground, located within the Diamond Valley Hydrographic Basin, No. 10-153, Eureka and Elko Counties, Nevada. The district court denied all the federal government’s claims for public water reserves under Order of Withdrawal, Public Water Reserve No. 107, signed April 17, 1926.

The Nevada Supreme Court’s Commission to Study the Adjudication of Water Law Cases concluded that Nevada would benefit from providing district court judges special training to preside over water law cases and proposed the certification of specialty water law judges and developed rules for assigning water law cases. The Nevada Supreme Court adopted the rules in July 2023. The pilot program, launched in January 2024, mandates that certified judges hear water law cases. The certification process involves judges submitting an application and undergoing specialized training on key topics in water law, conducted by the Administrative Office of the Courts.

The program is governed by Supreme Court Rule 18, which outlines the criteria for water law cases and the assignment process, ensuring cases are assigned randomly to certified judges within the relevant jurisdiction. This pilot program will run for at least three years. During the pilot program the commission will collect and review annual status reports to evaluate the program's effectiveness and decide on its permanent adoption.

J. New Mexico

1. Judicial

In Lujan v. Acequia Mesa del Medio, the New Mexico Court of Appeals affirmed a district court ruling that the prior appropriation doctrine, which governs irrigation water rights, can “operate in tandem with the derecho system” used by an acéquia to distribute water through irrigation ditches, even if they conflict. Corlinda Lujan inherited 114 acres that included irrigated land when her husband died in 1961, and she stayed on the property. She complained that in 2012, Acéquia Mesa del Medio improperly reduced the number of hours she could irrigate from 42.5 hours to 24 hours per irrigation cycle and gave the hours to her neighbor. Lujan’s claim was based on the 1962 Chacon Adjudication decree, which awarded water rights to land owned by the Lujans. The appellate court found that the acéquia could adopt “customs, rules and regulations” to control the distribution of water and rejected Lujans’ claims of unfair treatment by the acéquia. The appellate court also affirmed the district court’s award of expert fees and attorney’s fees, which the Lujans had disputed.

2. Administrative

In August of 2024, Gov. Michelle Lujan Grisham appointed the state’s first woman to be the State Engineer. Elizabeth Anderson is a professional engineer and has worked with water for the past 25 years. She managed engineering and construction at the Albuquerque Bernalillo County Water Utility Authority, ultimately becoming the Chief Planning Officer. She had been “on loan” to the former state engineer, Mike Hamman, for a year before her appointment. The New Mexico Senate will consider her confirmation in the 2025 legislative session.

K. Oklahoma

1. Legislative

House Bill 2053, effective June 7, 2023, amended Oklahoma Groundwater Law to protect a permit applicant’s right to take and use groundwater even while the order granting its permit is under appeal. Generally, Oklahoma’s Administrative Procedures Act does not automatically stay enforceability of an agency decision, but a stay may be granted in some circumstances. The new provisions require parties seeking to prevent groundwater use must meet an evidentiary and legal burden nearly identical to that required for injunctive relief. They must show (1) a high likelihood of success on the merits, (2) clear and convincing evidence that they will suffer irreparable harm, (3) that a balancing of the equities tips significantly in their favor, and (4) that preventing such groundwater use is clearly in the public interest. The new law creates a significantly lower burden to stay groundwater use where the permit involves taking groundwater from a sole source aquifer. There, a party need only show that one of the aforementioned factors is met, as opposed to all four. The new law further authorizes attorneys’ fees against appeals that seek to stop groundwater permits “based solely on the industry or entity applying to use the water[,]” (i.e., challenging groundwater permits issued to mining or agricultural entities as a means to frustrate a mining or agricultural project).

House Bill 2197, effective May 31, 2024, allows the Executive Director of the Oklahoma Water Resources Board (OWRB) to renew provisional temporary stream water permits and provisional temporary groundwater permits up to three (3) times, but only for uses associated with oil and natural gas. Provisional temporary permits (PTPs) are a special class of water right that carry no rights of priority, have a term of ninety (90) days, and generally cannot be renewed. Combined with an initial PTP, the three renewals authorized by HB 2197 would allow up to 12 months of water use without issuing advance public notice, as is required with most stream water or groundwater permits issued by the agency. While PTPs are frequently used for oil and gas exploration and production, the language of HB 2197 appears to authorize PTP renewals for any use requested by “the oil and natural gas industry.”

2. Judicial

In Leo v. Oklahoma Water Resources Board, the Oklahoma Supreme Court appeared to limit its holding in Purcell v. Parker as it related to notice of stream water proceedings by newspaper publication. In Purcell v. Parker the court held that the notice provisions of Oklahoma’s stream water statutes, which require notice by newspaper publication, were constitutionally inadequate when applied to landowners whose names and addresses are known or easily discoverable. In Leo, a group of landowners appealed a permit allowing the municipality of Oklahoma City to divert stream water from the Kiamichi river in southeastern Oklahoma – a significant interbasin transfer of water. The Leo petitioners urged that Purcell required the invalidation of Oklahoma City’s permit because Oklahoma City relied solely on notice by newspaper publication.

The Court distinguished the facts of Purcell from the case before it by finding that the petitioners had “actual notice of the application and participated in the OWRB hearings and judicial review.” While the court claimed in Leo that it merely distinguished the case from the facts in Purcell, a dissenting opinion, written by the author of the Purcell, seemed to acknowledge that the most far-reaching aspect of Purcell, the constitutional inadequacy of the notice provisions of Oklahoma’s stream water statutes, was severely curtailed, if not eliminated by the holding in Leo. The Court also ruled in Leo that petitioners who lived outside of the two counties where newspaper publication was required “lack standing[,]” implicitly rejecting Purcell’s recognition of a constitutional right to notice beyond that required by Oklahoma’s stream water statutes.

3. Administrative

The OWRB adopted new rules to deal with competing water rights in the watersheds of the Lugert-Altus Reservoir and the Tom Steed Reservoir in Western Oklahoma. The new rules use specific drought thresholds to limit stream water withdrawals by junior water rights holders upstream of those reservoirs. The new rules authorize OWRB to seek civil penalties and injunctive relief if an upstream junior water rights holder fails to comply following a notice of interference from the agency.

The OWRB amended its groundwater permitting rules to require that an applicant for a groundwater use permit send written notice to holders of nearby groundwater use permits. Previously, an applicant was only required to send notice to owners of any land located within 1,320 feet from any proposed well site. That notice will now be sent to permit holders with “dedicated lands” – acreage used to determine annual groundwater withdrawal rights of a permit – located within 1,320 feet of a proposed well.

L. Oregon

1. Judicial

In May 2024, the Klamath County Circuit Court began Part 3 of Phase 3 of the Klamath Basin Adjudication (KBA) to review the exceptions to OWRD’s determination for points of diversion (POD) within the basin. The KBA began in December 1975 and has been ongoing since with landmark decisions such as United States v. Adair shaping its progress. Adair holds if a tribe’s treaty with the United States reserves the right for the tribe to use water to support a hunting and fishing lifestyle, then these water rights carry a priority date of “time immemorial.” In August 2024, the first group of parties claiming POD exceptions filed their supporting briefs. The Court will likely hear and make orders on these exceptions in 2025.

2. Administrative

Oregon Water Resources Department (OWRD) announced revised groundwater rules that went into effect on September 17, 2024. The rules change OWRD’s review of new groundwater applications across the entire state by altering or removing existing terms in: OAR §§ 690-008-0001, 690-009-0010, 690-009-0020, 690-009-0030, 690-009-0040, 690-009-0050, 690-009-0060, 690-300-0010, and 690-410-0070.

When reviewing a new groundwater application, OWRD determines hydraulic connection and the potential for substantial interference with a surface water source for each well or proposed well identified. “Hydraulic connection” was redefined to mean “saturated conditions exist allowing water to move between two or more sources of water, either between groundwater and surface water or between groundwater sources.” This definition expands the previous definition.

To determine whether a well is hydraulically connected, OWRD evaluates “[w]ater [w]ell [r]eports, topographic maps, hydrogeologic maps or reports, water level and other pertinent data collected during a field inspection,” or any other appropriate data. For hydraulic connection to surface water, at minimum, OWRD’s determination must include application of “generally accepted hydrogeological principles described in ‘Streamflow Depletion by Wells – Understanding and Managing the Effects of Groundwater Pumping on Streamflow’ by P. M. Barlow and S. A. Leak, 2012.”

The 2024 rules did not change the presumption that a well is hydraulically connected to surface water if within a horizontal distance less than one-fourth mile from a surface water source that produces water from an unconfined aquifer.

OWRD is also now required to make an affirmative finding that “water is available” before moving forward with a groundwater allocation. “Water is available” if the surface water source is not over-appropriated, and if it is over-appropriated, the burden is on the applicant to show why the allocation should still be allowed under the definition.

M. Washington

1. Administrative

On May 1, 2024, the Washington State Department of Ecology (Department) filed in state court to initiate a general water rights adjudication for the Nooksack River Basin. Technically, the geographical scope of the adjudication is Water Resource Inventory Area 1 (WRIA 1), an administrative unit in the northwest corner of Washington State that encompasses the majority of Whatcom County and a portion of Skagit County and borders Canada. The case is likely to include up to 40,000 defendants and is expected to last a few decades.

A water rights adjudication is a legal process that determines whether each water use is legal, how much water can be used, and its priority during shortages. The adjudication will address each individual water right within WRIA 1, including federal, tribal, and instream flow rights. As Washington follows the doctrine of prior appropriation, the earliest users have rights senior to those rights issued later. This has significant consequences for water users, because during water shortages, users with older rights get water first, while newer users may be cut off. The adjudication will conclude when the court issues a final decree, and the Department issues adjudicated certificates representing the final legal water right, including that right’s quantity and priority.

The adjudication filing was prompted by a report to the state legislature that identified the Nooksack River as one of the highest priority areas for a future adjudication. One factor in this determination was that the Lummi Nation and the Nooksack Indian Tribe petitioned for the adjudication. Both Tribes hold senior, unquantified rights and have agreed to bring all their groundwater and surface water rights into the state court adjudication.

The WRIA 1 water adjudication covers both surface and groundwater and involves everyone who withdraws water from a well or diverts surface water in the area. This includes people with permit-exempt wells, which allow for small uses of groundwater without a water right permit. The adjudication does not include those who obtain water from a water provider, such as a city or public utility district.

Currently, the adjudication is in the early stages. Beginning in 2025, the Department plans to serve all known water users by certified mail and notify all others through publication. Each water user would have a year, or more, to file a claim for each water right after receiving the mailed summons from the Department. After the court receives the claim forms, water users will have three years to collect and submit evidence to support their claims, unless the court extends this timeframe.

N. Wyoming

1. Legislative

In Senate File 66, the Wyoming Legislature amended Wyoming State Statute Section 41-3-106, which governs water exchange procedures. The amendment clarifies that water can be exchanged “from another appropriation from the same source.” The bill also allows the state engineer to block an exchange if “other appropriators will be injuriously affected” replacing the “adversely affected” standard in effect in the statute before the amendment. Senate File 66 requires the state engineer to publish notice “once a week for at least two (2) consecutive weeks in a newspaper of general circulation in each county where the water rights subject to the exchange petition are located” before the exchange petition may be granted. Finally, the bill ensures that water rights subject to an exchange will not result in a “loss, abandonment or impairment” unless the exchange order states otherwise.

Two omnibus water bills passed in the Wyoming Legislature. Senate File 75 appropriates money for construction projects while House Bill 104 funds water planning projects. House Bill 104 continues authorizing the water development commission to enter into partnerships with federal agencies to fund water projects. Senate File 75 funds construction for new development, rehabilitation, and conveyance and storage projects. A significant project that was funded in Senate File 75 was the design and construction of a new LaPrele Dam.

2. Administrative

The Wyoming State Engineer issued a breach order for the LaPrele Dam on November 1, 2024. The order was issued because structural deficiencies were originally discovered in 2019. The state engineer determined that the LaPrele Dam had become an “immediate threat to life and property” and should be breached no later than April 1, 2025.

On May 31, 2024, the State Engineer issued an emergency policy allowing stock water appropriators to change the place of use without a permit or temporary water use agreement. “Very dry conditions” prompted the policy and is in effect through the end of 2024. A change in place of use must still be approved by the water Division Superintendent.

O. Eastern States

1. Indiana

(a) Administrative

Indiana’s establishment of a watershed development commission was discussed in last year’s Water Resources Committee Report. On October 29, 2024, the Indiana Department of Natural Resources issued guidance for forming a watershed development commission (WDC) under the law passed in 2023. The document defines and explains the purpose of watershed development commissions as “regional entities established to oversee the development and management of watersheds at the local level.” In addition, the guidance elaborates on the procedure for establishing a WDC and the necessary filings with the Natural Resources Commission (NRC). The guidance also requires the NRC to explain why it denied the establishment of a WDC. The NRC “must inform the counties in writing of its decision and specify in writing the reason(s) for each unfavorable answer.”

2. New Jersey

(a) Judicial

In In re Proposed Construction of Compressor Station, the Supreme Court of New Jersey narrowed the interpretation of a portion of the Highlands Water Protection and Planning Act (Highlands Act), which seeks to protect water resources in the Highlands region of New Jersey by limiting the sprawl of major developmental projects within the region. The Highlands Act provides an exemption to its stringent permitting scheme for activities that qualify as “routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of this act.”

Here, Tennessee Gas, a natural gas LLC, sought to construct a new compressor station (Compressor Station 327) in the Highlands region and applied for an exemption from the Highlands Act. In response, Food & Water Watch, the New Jersey Highlands Coalition, and the Sierra Club submitted a joint comment opposing the proposed construction of Compressor Station 327. The groups asserted that the project would be a massive expansion of operations within the Highlands region that does not conform to the goals of the Highlands Act. The question on appeal was whether the word “routine” modifies all activities identified in the Highlands Act exemption.

3. North Carolina

(a) Judicial

In Devonwood-Loch Lomond Lake Association v. City of Fayetteville, plaintiff landowners alleged that the City of Fayetteville is responsible for damage to their dams resulting from Hurricane Matthew. During Hurricane Matthew, dams located on four amenity lakes overtopped and the lakes drained as a result. Additionally, as a result of the damage, the city’s drainage system, which had previously discharged into the amenity lakes, began discharging stormwater directly onto the dry lakebeds. The landowners brought claims in federal court for violations of 42 U.S.C. Section 1983 and takings under the Fifth Amendment along with seven state law claims, including inverse condemnation, negligence, nuisance and trespass. The court granted summary judgement for the federal claims and declined to exercise supplemental jurisdiction over the state claims.

In September 2022, the landowners filed in state court, alleging that the manner in which the city conducted its stormwater drainage led to the overtopping of the dams. The trial court granted the city’s motion to dismiss with prejudice, which the landowners appealed. Although it primarily agreed with the trial court and deferred to the prior decision in the federal court case, the Court of Appeals held that the tort claims arising from the city’s stormwater discharges following the damage to their dams were improperly dismissed. The court reasoned that collateral estoppel did not apply here and N.C. Gen. Stat. § 40A-51(c) did not affect the landowners’ right to bring an action in tort for damage to their property.

(b) Legislative

Senate Bill 508 provides for technical, clarifying, and other amendatory modifications of North Carolina’s Current Operations Appropriations Act of 2023 and other legislation. Several proposed revisions relate to water safety, water and wastewater infrastructure improvement projects, and aquatic weed control program changes. Section 2.10 of the bill revises Section 8.16(a), 8.16(d), and 8.16(e) of the Water Safety Act. Specifically, the revisions to Sections 8.16(d) and 8.16(e) shift responsibility for required water testing from the Commission for Public Health to the Secretaries’ Science Advisory Board (Board). The required testing under these sections tasks the Board with determining whether sufficient evidence exists to establish a link between fluoride in the public water supply and neurological detriments, such as cognitive decline, in children. A report to the General Assembly summarizing the Board’s determination was to be provided by December 1, 2024.

Several sections in the bill provide for reallocation of funds to support the improvement of water and wastewater infrastructure in particular counties and towns throughout North Carolina. For example, under Section 4.8, the Town of Hookerton is permitted to utilize remaining funds from a directed grant toward water and wastewater projects. In addition, under Section 4.9, Haywood County was added to Section 10.7(a) of State Law 2023-134, which provides cost share assistance to farmers in the watershed of the Upper French Broad River. The funds are to be used to prevent livestock from entering existing streams and watercourses that make up or drain into the Upper French Broad River.

Additionally, the bill provides for revisions to General Statute 143-215.73F(b), which outlines the use of funds to provide greater protection against aquatic weeds throughout the waters of North Carolina. Critically, the revision adds authorization for the use of funds in addressing:

(i) [A] noxious aquatic weed designated under Article 15 of Chapter 113A of the General Statutes, (ii) cyanobacteria causing harmful algal blooms or producing cyanotoxins such as cylindrospermopsin and saxitoxins, or (iii) other aquatic vegetation not so designated, if the vegetation obstructs public water access or access by watercraft to public watercraft launching or docking areas.