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Western Water Law & Policy Reporter

January 2012

Volume 16, Number 3 January 2012

FEATURE ARTICLE

California State and Regional Water Boards Expand their Land Use Entitlement Authority under the State and Federal Water Quality Acts by Michele A. Staples, Craig K. Beam and Jonathan E. Shardlow, Jackson DeMarco Tidus Peckenpaugh, California67

WESTERN WATER NEWS

American Society of Civil Engineers Commissioned Report Paints Bleak Economic Outlook of Aging U.S. Water Infrastructure73

State Delta Stewardship Council Issues Draft Environmental Impact Report on the California Delta Plan75

LEGISLATIVE DEVELOPMENTS

Update of Water-Related Legislative Developments in Colorado77

Utah Legislature to Propose Curative Legislation to Address Two Recent State Supreme Court Decisions79

FLOOD CONTROL DEVELOPMENTS

Flood Control Management and Liability Update81

LAWSUITS FILED OR PENDING

U.S. Bureau of Reclamation Responds to New Mexico’s Suit Seeking Declaratory and Injunctive Relief over Accounting of Rio Grande Compact Credit Water in Elephant Butte Reservoir83

JUDICIAL DEVELOPMENTS

Federal:

Ninth Circuit Finds Fish and Wildlife Service’s ESA Delisting of Yellowstone Grizzly Bear Population Was Not Lawfully Supported85

Greater Yellowstone Coalition v. Servheen, ___F.3d___, Case Nos 09-36100, 10-35043, 10-35052, 10-35054 (9th Cir. Nov. 22, 2011).

Third Circuit Finds Wetlands Fall within the CWA’s Jurisdiction if They Meet Either the ‘Plurality’ or ‘Significant Nexus’ Test under Rapanos87

U.S. v. Donovan, ___F.3d___, Case No. 10-4295 (3rd Cir. Oct. 21, 2011).

District Court Holds It’s an Issue of Fact whether a Gravel and Sand Yard Constitutes an ‘Industrial Facility’ Warranting Clean Water Act NPDES Permit Compliance89

California Sportfishing Protection Alliance v. Shamrock Materials, Inc., ___F.Supp.2d___, Case No. C11-2565 MEJ (N.D. Cal. Nov. 2, 2011).

District Court Determines that Notice Requirements of the Resource Conservation and Recovery Act and the Clean Water Act Are a Low Hurdle91

Northern California River Watch v. Honeywell Aero, ___F.Supp.2d___, Case No. C 11-03723 WHA (N.D. Cal. Nov. 14, 2011).

District Court Grants City’s Motion to Dismiss Case Arising from Stormwater Overflow on to Plaintiffs’ Property93

Van Zanten v. City of Olympia, ___F.Supp.2d___, Case No. C10–5216–JCC (W.D. Wash. Nov. 2, 2011).