August 20, 2018

Bureau of Reclamation Commissioner Brenda Burman spoke to WAGLAC and CWAG.  The WAGLAC CLE featured presentations on: Florida v. Georgia, Texas v. New Mexico, Royal v. Murphy and Washington v. United States, CWA Section 401 Certification and taking of lands into trust. The presentations were outstanding and should be a good resource for your office. Please find PDFs of the presentations below.

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
*You are encouraged to register for WAGLAC prior to Monday, October 8th, so that we may confirm room size and meals. 
November 7-9, 2018 
Heathman Hotel
Portland, Oregon
Check in on November 7 th
Meeting start 8:00 am on Nov 8th
Meeting end at noon on Nov 9 th
February 18-20, 2019
The Westin San Diego
San Diego, CA
Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to or The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.
Navajo Nation v. Dalley

Navajo Nation v. Dalley, ___ F.3d ___, 2018 WL 3543643 (10th Cir. July 24, 2018),  may affect a number of gaming compacts.  The decision also has implications with respect to choice-of-venue provisions in inter-governmental agreements with tribes.
Washington State Department of Licensing v. Cougar Den

Washington State Department of Licensing v. Cougar Den, A Yakama Nation Corporation, Case No. 16-1498. The issue in this case is whether Washington State is preempted from collecting its wholesale fuel tax on fuel imported into Washington by a Yakama Nation corporation by virtue of the 1855 Yakama Treaty, which grants tribal members the right to travel upon all public highways  The briefs of Washington State, the United States and amicus states are attached
Sturgeon v. Frost

Sturgeon v. Frost , 17-949. The issue in this case is whether the federal reserved water right doctrine provides a legal basis for the National Park Service to preclude use of hover craft on the Nation River in Alaska. Idaho joined by eight other states filed the attached amicus brief arguing that the Ninth Circuit failed to apply the “clear statement doctrine,” and divested states of their traditional authority over water based upon an unprecedented expansion of the implied-reserved-water right doctrine.

Arizona Navigable Stream Adjudication Commission (ANSAC)

On June 28, 2018, ANSAC issued its reports, finding that no waterways within Arizona were navigable or susceptible to navigation in their ordinary and natural condition at statehood in 1912. One of the five Commissioners dissented, finding navigability on segments of the Salt, Gila, and Verde Rivers. Within 180 days, by December 26, 2018, the State Land Department, on behalf of the Commissioner as advocate for the public trust, must send notice of the determination and a statement of whether the Department intends to seek judicial review of the Commission’s determination. Aggrieved parties have until 90 days after the date the Department issues its notice to seek judicial review in superior court.

General Stream Adjudication (Gila River)

Aravaipa Canyon Wilderness Area
Trial concluded in October 2015—quantification of federal reserve right for wilderness area. Awaiting decision.

Fort Huachuca
Trial concluded in February 2017—quantification of a federal reserve water right for the fort’s military purpose. Awaiting decision.

Redfield Canyon Wilderness Area
Trial concluded in May 2017—quantification of a federal reserve water right for a wilderness area. Awaiting decision.

San Pedro Watershed Subflow Technical Report
Trial held in March 2018 to establish the appropriate methodology to determine whether a well’s cone of depression will cause a drawdown within the subflow zone that triggers the court’s jurisdiction. The Special Master issued a draft report In May 2018 adopting the MODFLOW test. Awaiting issuance of final report pending Special Master’s consideration of objections.

San Pedro Riparian National Conservation Area (SPRNCA)
Trial of quantification of federal reserved right for a conservation area scheduled for January 2019.

General Stream Adjudication (Little Colorado River)

Hopi Reservation Hydrographic Survey Report (“HSR”)
Trial scheduled for September thru December 2018 on past and present uses only. Trial regarding future uses at a later date. First case in Arizona to quantify Indian federal reserved water right.

Navajo Nation
Trial scheduled for 2022.

Silver v. Pueblo Del Sol Water Company
Arizona S. Ct. August 9, 2018

A divided court held the Arizona Department of Water Resources does not have to consider an unquantified federal reserved water right when determining whether to issue a ground water right to a developer. While the decision turns on the interpretation of Arizona statutes and regulations, the discussion of the treatment of unquantified federal reserved water rights in a regulatory context may be of interest to other states. 
In Arizona, surface and ground water are governed by separate legal doctrines. Surface water is allocated under the prior appropriation doctrine. Use of ground water is governed by the doctrine of reasonable use. Under this doctrine an overlying landowner is allowed to capture as much ground water as can reasonably be used on the overlying land. 
As part of the ground water permitting process a developer is required to show its proposed water supply is physically and legally available “to satisfy the water needs of the proposed use for at least one hundred years.” 
While those opposing the developer’s application conceded it had satisfied the “physically available” requirement, they asserted the agency was required to “consider unquantified federal reserved water rights” in making it legally availability analysis. Slip Opinion at ¶ 21. Among other grounds for rejecting this argument, the Arizona Supreme Court stated such an interpretation of “legal availability” would require ADWR to “speculate about the extent of federal reserved water rights and the impact of prospective pumping on those rights.” Id. at ¶ 32. The Court concluded that until the reserved water right is adjudicated, “the entire exercise would be futile,” and therefore, “neither the statute nor the regulation requires ADWR to consider unquantified federal reserved water rights as part of its legal availability analysis.” Id. at ¶ 41. 

Arizona May Have to Cut Back on Water Use in 2020, Outlook Says
Experts say this is why Arizona needs to adopt a drought-contingency plan.
August 15, 2018

Arizona will avoid a water shortage next year, but water users may be forced to cut back in 2020, according to  a new federal report   released Wednesday.

The U.S. Bureau of Reclamation's outlook comes as Arizona managers and stakeholders work to finalize a drought-contingency plan  in time for the next legislative session. Overallocation, climate change and long-term drought have contributed to Lake Mead's decline, where water  levels hover just a few feet above  shortage triggers.

A water shortage would be declared if water levels at Lake Mead are projected to fall beneath elevation 1,075 feet above sea level by the end of the calendar year. The reservoir will end 2018 nearly 5 feet above the shortage threshold, according to the bureau's August study, which covers 24 months.

Officials say a strong conservation ethic among Arizona's water managers helped keep the lake above shortage levels thus far, but they say Wednesday's report serves as a reminder of how sorely Arizona needs a drought-contingency plan.

On November 7 and 8 th, the Idaho Supreme Court will hear four appeals concerning the Coeur d’Alene Tribe’s entitlement to federal reserved water right in the Coeur d’Alene and Spokane River Basin. The adjudication court held the United States reserved water for the Coeur d’Alene Tribe for agricultural, hunting and fishing and domestic purposes. The court disallowed claims for industrial, commercial, water storage, power generation, aesthetics, recreation and lake level maintenance. The court also disallowed claims for water sources outside of the Coeur d’Alene Reservation.


In 2014, nongovernmental organizations successfully sued EPA for failing to review the need for potential financial responsibility (insurance) requirements for industry segments as required under Section 108(b) of CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act). EPA selected the hardrock mining industry as the first segment for review under CERCLA 108(b), and in 2017, EPA published a proposed rule establishing a complex set of financial responsibility requirements for the hardrock mining industry. On February 21, 2018, EPA changed course and published a final decision finding that financial responsibility under CERCLA 108(b) were not necessary for the hardrock mining industry. EPA stated that existing state and federal financial responsibility requirements would be duplicated and preempted. EPA also stated that the financial industry could be deterred from providing financial assurance instruments to avoid potential liability under the proposed rule. On May 16, 2018, the NGOs filed a petition challenging the final rule in the D.C. Circuit Court of Appeals. On June 15, the AZ AGO, on behalf of ADEQ and a coalition of 13 other states, filed a motion to intervene in support of EPA’s final rule that financial responsibility is not necessary for the hardrock mining industry.       

EPA Region 8 Counsel has developed the attached proposal for sharing draft rules, pre-publication with States, especially where States are co-regulators. 

Secretary Zinke’s office, as a follow up to his Fireside Chat, sent links to the Fish and Wildlife Service’s withdrawal of its Mitigation Policy. 81 FR 83440 (November 21, 2016). The Mitigation Policy guided the Service’s recommendations for mitigating adverse impacts of land and water development on fish, wildlife, plants, and their habitat. The Mitigation Policy established a “net conservation gain” standard. The withdrawal notice concludes that the “net conservation standard” raises “serious questions of whether there is a sufficient nexus between the potential harm and the proposed remedy to satisfy constitutional muster.” The Service also withdrew its Endangered Species Act Compensatory Mitigation Policy concluding that “it does not have authority to require ‘net conservation gain’ under the ESA, and the policy is inconsistent with current Executive branch policy.”  
The maps Secretary Zinke referenced in his talk about reorganization of the Department of Interior are available here:
On August 31, 2017, DOI issued Secretary's Order 3355 to improve the Department of the Interior's (Department) environmental review processes under the National Environmental Policy Act (NEPA).

Section 4b of the Order directed the Department's Bureau and Office heads to recommend target page and time goals for the preparation of Environmental Assessments (EA) where a Bureau is the Lead Agency.

The attached signed memorandum from the Deputy Secretary considers and incorporates each Bureau's feedback for the thorough and timely consideration of environmental impacts analyzed within an EA document.
Clean Water Act Section 401

As discussed at the CWAG Summer Meeting, there are a number of Congressional and administrative efforts to diminish a state’s authority under Section 401 of the Clean Water Act. CWAG attorneys general authorized Executive Director Karen White to add CWAG to a state organization sign-on letter expressing concern about these efforts to weaken state water quality authority. On August 9, 2018, the following state organizations in addition to CWAG sent the sign-on letter to Congress: Western Governors’ Association, Council of State Governments, Council of State Governments – West, Western States Water Council, Association of Clean Water Administrators, Association of Fish and Wildlife Agencies, Association of State Wetland Managers, Western Interstate Region of NACo, and Western Interstate Energy Board. 

The following proposals to modify Section 401 are currently pending before Congress. On August 16 th, the U.S. Senate Committee on Environment and Public Works held a hearing on S. 3304, the Water Quality Certification Improvement Act of 2018. If enacted, this bill would narrow the type of water quality requirements a state could impose on a project through its Section 401 certification authority. Other measures related to Section 401 pending before Congress are: 1) H.R. 3043, Hydropower Policy Modernization Act of 2017 (Passed House, Oct. 2017); 2) House Energy and Water Subcommittee and House Interior and Environment Subcommittee FY19 Appropriations Report language; and 3) S. 1460, Energy and Natural Resources Act of 2017. The Western Water Council provided testimony to the committee about S. 3304; please find a copy of the letter and testimony below.

In addition to the proposed congressional actions, The Administrations’ Legislative Outline for Rebuilding Infrastructure in America calls for amending the Clean Water Act “to change the time period for issuance of a State 401 Certification by addressing the time periods for making a completeness determination and the time for a State decision . . ..”  Id. at 43. And, the Environmental Protection Agency is seeking comment on whether the Agency should promulgate rules for the Section 401 certification process. 

Staff will continue to monitor this issue and work with our sister organizations to protect state water quality authority under Section 401 of the Clean Water Act.
CWAG members approved the attached federalism resolution. Staff will transmit the resolution to the President and Congress. In addition, staff will work with sister organizations to develop proposals for improving the state-federal relationship consistent with the directives of the resolution
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.