The Utah Supreme Court recently issued its decision in the case of Washington Townhomes LLC v. Washington County Water Conservancy District. The case started as a class action lawsuit by property owners and developers who paid impact fees to Washington County Water Conservancy District. These plaintiffs asserted that the impact fees violated the Utah Impact Fees Act and constituted a taking under the state and federal constitutions. The District defended its impact fees by asserting that the fees were based on a "level of service" standard imposed by the Utah Division of Drinking Water, and by asserting that its adoption of the level of service standard was a legislative judgment that should survive judicial scrutiny.

The district court agreed with the District, and concluded that the level of service that was adopted by the District and that was based on DDW standards was "legal and reasonable as a matter of law." Accordingly, the court granted partial summary judgment in favor of the District. Additionally, pursuant to a stipulation of the plaintiffs and the District, the court certified that the case could be immediately appealed under Rule 54(b) of the Utah Rules of Civil Procedure. The case was then appealed to the Utah Supreme Court.

The Supreme Court did not get to the substantive question of whether the impact fees were properly based on the DDW standards. Rather, the Supreme Court dismissed the appeal on jurisdictional grounds. The Supreme Court determined that although the district court's ruling made an important determination in the case context, the ruling did not qualify for appeal certification under Rule 54(b) because the ruling did not finally dispose of any claim and did not finally adjudicate the interests of a party to the case.

The Supreme Court further considered whether to exercise its discretion to treat the appeal as a petition for interlocutory appeal under Rule 5 of the Utah Rules of Appellate Procedure. The Supreme Court noted the precedent that an interlocutory appeal is appropriate "to adjudicate principles of law or procedure in advance as a necessary foundation upon which the trial may proceed." Although the Supreme Court noted that the level of service question was an important issue in the case, the Supreme Court declined to accept the appeal because it determined that the district court's ruling was unclear and had unanswered factual and legal questions. For example, the Supreme Court felt that there was an unanswered question as to whether the District was legally required to build infrastructure and facilities in accordance with the DDW level of service standards. Accordingly, the Supreme Court declined to accept the appeal, dismissed the appeal, and sent the case back to the district court for further proceedings.

 

To read the full text of the opinion, click here.

Catskill Mountain Chapter of Trout Unlimited v. EPA

 

On January 18, 2017, the Second Circuit Court of Appeals issued a 2-1 decision in Catskill Mountain Chapter of Trout Unlimited v. EPA, upholding the Environmental Protection Agency's (EPA) so-called "Water Transfers Rule" (40 C.F.R. § 122.3). That rule provides that certain water transfers do not require permits under the Clean Water Act's (CWA) National Pollutant Discharge Elimination System (NPDES).

A number of environmental groups challenged the rule along with eight eastern states, the State of Washington, and a number of other entities.  They argued that the rule was in impermissible interpretation because the CWA requires NPDES permits when there is an "addition" of a pollutant to a "water of the United States," which is the legal term the CWA uses to define those waters subject to its jurisdiction. Because water transfers can involve waters with differing levels of quality, the plaintiffs argued that such transfers involved the "addition" of a pollutant and therefore required a permit. EPA argued that transfers from one "water of the United States" to another do not involve the "addition" of a pollutant because the waters are collectively "waters of the United States."

The Second Circuit sided with EPA, holding that the CWA does not speak directly on whether water transfers require NPDES permits. Because of this ambiguity, the Second Circuit reasoned that the rule was a reasonable interpretation of the CWA, and therefore entitled to deference under the so-called "Chevron" framework that the U.S. Supreme Court requires for federal regulations. Circuit Judge Denny Chin dissented, arguing that the CWA is unambiguous and that excluding water transfers was incompatible with Congressional intent.

Utah and eleven other western states intervened to support the rule over concerns that requiring NPDES permits would make many water transfers in the West financially or technically infeasible without providing water quality improvements. Western water providers from across the West also intervened in support of the rule, including the Central Utah Water Conservancy District, the Salt Lake and Sandy Metropolitan Water District, the Washington County Water District, and the Kane County Water Conservancy District. No Utah entities challenged the rule.

 

Whether the plaintiffs will appeal the ruling is unknown, although the decision is consistent with the Eleventh Circuit, which has upheld the rule as a reasonable interpretation of the CWA. The Second Circuit's opinion is available at:

 

http://courthousenews.com/wp-content/uploads/2017/01/Catskill-Mountains.pdf.