National Water Rights Digest Posts

Water rights weekly report for March 20. For much more news, links and detail, see the National Water Rights Digest.

What would happen if a river was given legal standing, recognized as a ‘person’ before the court? That scenario is being played out now in New Zealand, following a landmark decision in 2012 which gave the Whanganui River the right to be represented in court by legal guardians in a bid to protect its ecosystem’s health.

A group of 13 Marylanders on March 16 protested and were arrested at the State House in Annapolis and were arrested in an act of peaceful civil disobedience while demanding that state Senate leaders support a ban on fracking.

The Oklahoma Water Resources Board voted unanimously on to March 22 name Julie Cunningham as the agency’s next executive director. Cunningham had been serving as the interim executive director since October 2016 following the departure of J.D. Strong to lead the Oklahoma Department of Wildlife Conservation.

The State Water Resources Control Board, in consultation with the California Department of Fish and Wildlife, is required to adopt principles and guidelines for the diversion and use of water for cannabis cultivation.

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This seems like a common sense no-brainer.

Rain falls around your house. You put out a pot collect some of it. Why on earth shouldn’t you be able to?

There are catches all over this simple proposition, which is why a number of states even now are bumping into it. Last week, Nevada was one of them. Household collection of rain water is the subject of the current Nevada Assembly Bill 138.

Thing is, water is considered to be a public resource – owned by all of us, not any one person. That’s why we have water rights, which is something like a license to drive: The right to use the road, not an ownership of it. If you collect water from rain when it falls around your house, you’re appropriating a public resource without permission.

Well, at least technically. As a practical matter, as most people’s common sense would suggest, is a little looser. Capture a small amount and the state isn’t going to come after you. There’s a legal standard in water rights called de minimus use – as it sounds, minimal use of water.

In many places, that means domestic users of water – even well owners – have no need of a special water use permit, because the amount of water involved is simply too small to try to regulate.

Where the de minimus line is, however, varies from place to place. Different states have different rules, and some of the drier states actually are very stringent. “Rain barrel” collection of water is sometimes closely limited, or even banned altogether.

The Nevada legislation, for example, provides this (according to its digest): ““Existing law requires that, subject to existing rights, the appropriation of any water in this State is subject to the provisions of chapter 533 of NRS, which, among other things, require any person seeking to appropriate water to obtain a permit to do so. (NRS 533.030, 533.325) Section 1 of this bill provides that the de minimus collection of precipitation from the rooftop of a single-family dwelling for domestic use or in a guzzler to provide water to wildlife is exempted from the requirements of chapter 533 of NRS and thus may be collected without a water right or permit to appropriate water. Sections 2-5 of this bill make conforming changes.”

Your mileage may vary.

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Water rights weekly report for March 20. For much more news, links and detail, see the National Water Rights Digest.

Water rights legislation has been pouring through the Nevada legislature this year. On March 17, the Senate Natural Resources Committee alone passed two measures and agreed to consider revisions to a third. The measure to be reconsidered was Senate Bill 47, which was introduced in the Senate in November. It is a relatively complex measure. An Assembly bill on water rights forfeiture also was considered.

The Utah State Records Committee unanimously said on March 16 that records concerning water use by a city ought to be public, agreeing with a request from the Utah Rivers Council.

A Wisconsin bill that would reduce state oversight of high-capacity water wells, prospectively affecting state water flow, drew strong turnout at a March 15 legislative hearing.

Nevada Assembly member Maggie Carlton, D-Las Vegas, has offered Assembly Bill 138 to allow use of rainfall, within limits. It only allows collection from single-family homes. While described as de minimus use, that could amount to hundreds of gallons from a strong rainfall, if the collection were especially efficient.

The city council at Buffalo, Wyoming, on March 15 said it would let a property owner use groundwater there though the property had been slated for city annexation.

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Maybe it comes best from a state Supreme Court, rather than from Washington.

Still won’t go over well. But maybe, there’ll be more acceptance and credibility in the call.

The case in question, for which a decision was released on March 10, is Greg Hill v. Nebraska Department of Natural Resources, and while the subject is water, the nature of the complaint involves more philosophical and ideological matters.

The background of the case is in the Republican River Compact, an agreement Nebraska has executed with Colorado and Kansas, along with associated state regulations. The water users argued that the state’s actions under the compact amounted to a “taking” under terms of the state constitution, which “amounts to a permanent physical invasion.”

More specifically, as the court laid it out, “In their complaints, the appropriators alleged that each holds prior appropriation rights to surface water and that in each crop year, there was available surface water within Nebraska’s allocated share of the Basin’s waters which was not needed to meet Nebraska’s obligations under the Compact. The appropriators further alleged that the available water was taken from the appropriators and given to Kansas, in excess of the requirements of the Compact, and constituted inverse condemnation of their water rights.”

None of that sold with the court. Simply, it found “We find that the Compact, as federal law, supersedes the appropriators’ property interests. We further find that the DNR does not have a duty to regulate ground water; thus, a failure by the DNR to regulate ground water pumping that affects the Basin does not give rise to a cause of action for inverse condemnation.”

Moreover, the use of water within Nebraska isn’t the only consideration when a compact is in place: The concerns of the other participating states matter as much.

So the U.S. Supreme Court likely would find as well, because it has determined in the past that interstate compacts can be enforced, and because the place to get terms of a compact enforced is federal – the U.S. Supreme Court, or in action through Congress. The Nebraska decision runs with the flow of federal and state court decisions on compacts over a stretch of time.

Because the decision came at the state level – and odds are that’s where it will rest – it may find a little greater acceptance locally.

Or not. But if not, the followup clearly would be an exercise in frustration.

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Water rights weekly report for January 9. For much more news, links and detail, see the National Water Rights Digest.

The 9th Circuit Court of Appeals on March 7 held that federal implied reserved groundwater rights can be claimed by an Indian Tribe – in this case, the Agua Caliente Band of Cahuilla Indians. In Agua Caliente Band v. Coachella Valley Water District, the court said “the Tribe has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.”

The Nebraska Supreme Court on March 10 held that the Republican River Compact is in effect federal law and therefore supersedes state water right law – and thereby denying a water right claim from within the state. In Greg Hill v. Nebraska Department of Natural Resources, the Nebraska high court said “We find that the Compact, as federal law, supersedes the appropriators’ property interests. We further find that the DNR does not have a duty to regulate ground water; thus, a failure by the DNR to regulate ground water pumping that affects the Basin does not give rise to a cause of action for inverse condemnation.”

The Black Hills Energy electric utility on March 7 formally gave the city of Pueblo, Colorado, and its utility Pueblo Water, its local rights on the Arkansas River, and the diversion infrastructure and equipment needed to access it.

A new film airing on the National Geographic channel on March 14, “Water & Power: A California Heist”, reviews groundwater use in the state and, as a public television channel said. “looks at how heedless groundwater tapping and secret deals over water rights put California’s water supply in peril.”

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There are two main reservoirs on the main stem of the southwestern Colorado River: Lake Mead, impounded by Hoover Dam near Las Vegas, and Lake Powell, impounded by Glen Canyon Dam in northern Arizona.

The future of Glen Canyon has been thrown into considerable dispute over the last few years, and a plan called Fill Mead First, put together by the Glen Canyon Institute (in Salt Lake City) has generated some support in the region. A Utah State University study describes it this way:

The Fill Mead First plan would establish Lake Mead reservoir as the primary water storage facility of the main-stem Colorado River and would relegate Lake Powell reservoir to a secondary water storage facility to be used only when Lake Mead is full. The objectives of the FMF plan are to re-expose some of Glen Canyon’s sandstone walls that are now inundated, begin the process of re-creating a riverine ecosystem in Glen Canyon, restore a more natural stream-flow, temperature, and sediment-supply regime of the Colorado River in the Grand Canyon ecosystem, and reduce system-wide water losses caused by evaporation and movement of reservoir water into ground-water storage. The FMF plan would be implemented in three phases. Phase I would involve lowering Lake Powell to the minimum elevation at which hydroelectricity can still be produced (called minimum power pool elevation): 3490 ft asl (feet above sea level). At this elevation, the water surface area of Lake Powell is approximately 77 mi, which is 31% of the surface area when the reservoir is full. Phase II of the FMF plan would involve lowering Lake Powell to dead pool elevation (3370 ft asl), abandoning hydroelectricity generation, and re-leasing water only through the river outlets.

It’s a dramatic plan, and could have some environmental benefits in the Glen Canyon area, but there are issues.

A significant amount of the disagreement has to do with the amount of rock and soil damage the Glen Canyon project has done, and what the result would be if water is drained from the area.

The Arizona Department of Water Resources, in looking at the Utah study, suggested, “The Fill Mead First proposal would have little effect in its initial phases on the amount of fine-grain sediment released into the Colorado River below Glen Canyon Dam. The plan’s final phase, on the other hand, would “cause significant ecosystem adjustments associated with the sudden change from relatively clear water to a very turbid river.” The assessment concluded that unless Glen Canyon Dam was bypassed completely, it would be impossible to provide the supply of sand needed to reconstitute the eddy sandbars and camping beaches that today are an important part of the river’s ecosystem throughout the Grand Canyon.”

This is something that will take a lot of study before any action is taken. As any environmentalist should know, when it comes to action in the environment, you never do just one thing.

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Water rights weekly report for January 9. For much more news, links and detail, see the National Water Rights Digest.

Santa Barbara (California) Superior Court Judge James Herman ruled against a plan by the Slippery Rock Ranch to pump groundwater for bottling, siting with the Goleta Water District. The judge held in his 30-page ruling that Goleta had a senior and adjudicated water right to groundwater in the area, and the water Slippery Rock proposed to extract “materially contributes” to it. That means, he wrote, the district is “senior appropriator with standing to enforce its claimed rights with respect to sources of water on or underlying SRR’s property that recharge the basin by way of hydrologic connectivity.”

The Bureau of Reclamation will increase flows below Iron Gate Dam to reduce the risk of disease for coho salmon in the Klamath River. Starting Feb. 10 through Feb. 13, flows below Iron Gate Dam will be elevated increasing from approximately 4,000 cubic feet per second to as much as 9,600 cfs. The public is urged to take all necessary precautions on or near the river while flows are high during this period.

The Bureau of Reclamation announced the initial 2017 water supply allocation for Central Valley Project contractors in the Friant Division, Eastside Division and Municipal & Industrial Water Service Contractors in the American River Division. The 2017 water year has been an extreme year thus far, with precipitation throughout the Central Valley on track to be the highest in our historic records,” said Reclamation’s Acting Mid-Pacific Regional Director Pablo Arroyave. “As such, Reclamation is taking an approach to the announcement of CVP water allocations this year that differs from our historic practice.”

Arizona Senator Jeff Flake, who in July won assurances that water stored in Lake Mead would be retained by Arizona, has been named chairman of the Senate Energy and Natural Resources Subcommittee on Water and Power.

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On February 21 the Trump Administration prevailed in court – in a venue where it had lost a high profile case only days before – only there was a catch.

It probably didn’t want this win. Now it’s stuck with it.

The case was San Luis & Delta-Mendota Water Authority v. Kevin Haugrud,and the decision came from a panel of the 9th Circuit Court of Appeals. The decision was written by Judge Randy Smith, a George W. Bush appointee from Idaho.

The case was brought by a couple of California water authorities which disagreed with the Bureau of Reclamation’s decision to use a significant amount of the water in the area for in-stream environmental purposes, specifically to protect fish in the lower Klamath River. The actions triggering the case concerned a major water release in 2013 aimed at preventing a massive fish die-off.

The circuit court said that a 1955 law and “gave the Bureau the authority to implement the 2013 flow augmentation release to protect fish in the lower Klamath River. Affirming the district court, the panel also held that the 2013 flow augmentation release did not violate Central Valley Project Improvement Act section 3406(b)(23), which called for a permanent water release that would serve only the Trinity River basin. The panel further held that the 2013 flow augmentation release did not violate California water law and, in turn, did not violate the Reclamation Act of 1902 or CVPIA section 3411(a), both of which require the Bureau to comply with state water permitting requirements.”

The court also said the water authorities failed to show that the Bureau’s actions specifically would harm their local economic interests – a precondition for having standing.

The results were very much in line with what the Obama Administration, which argued the case in court, had sought. The Trump Administration may take a different view.

Last spring, Trump told an audience of farmers from the drought-hit Central Valley, “If I win, believe me, we’re going to start opening up the water.”

But as PBS noted, “Precisely how he will do that is up for debate, since the federal government’s role in California’s water politics is not all-powerful. The federal government owns and operates the infrastructure that delivers most water to farmers in the Central Valley. But the state can limit how much water that system distributes through a permitting process and other regulation.”

This kind of environmental law can be frustrating for people on both sides of the equation. The Trump Administration may become the latest to find that to be the case.

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Water rights weekly report for January 9. For much more news, links and detail, see the National Water Rights Digest.

The 9th Circuit Court of Appeals on February 21 held that a local California water authority did not have standing to challenge Department of Interior and Bureau of Reclamation decisions on water flow based on endangered species considerations. San Luis & Delta-Mendota Water Authority v. Kevin Haugrud wound up affirming federal agency obligations to take responsibility for considering endangered species considerations.

Despite objections from many water suppliers that drought conditions have ended, the State Water Resources Control Board this week voted unanimously to extend emergency water conservation regulations throughout California.

The largest coal-fired power plant in the west, the Navajo Generating Station in northeast Arizona, is proposed for an end of operations in 2019. It is a heavy water used in a parched region. The plant uses a significant amount of water, much of it from Lake Powell on the Colorado River system. What would happen to it if the plant stops operations?

photo/At the Oroville Dam in California, a partial view of the emergency spillway (left) and the concrete structure containing the gates for the main service spillway (right)

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It’s been a back and forth thing over the years, but the way things are looking now, Georgia is gaining an upper hand in its long-running water battle with Florida and Alabama.

To be sure: The most recent decision in the case involves what amounts to a side issue just between Florida and Georgia. Alabama isn’t a direct participant, though its stake in the overall larger water battle is probably greater than Florida’s.

And the issue is a subtle one. And it may mean bringing in new players.

And it may mean, if you extend the logic, that the federal government could wind up a participant in more state/state water conflicts than generally has been the case up to now.

The case goes back a long way, and the dispute is a basic one in the realm of water rights: How much water an upstream water consumer gets to use before sending the rest of the water downstream. Georgia is upstream, the basic source of the Apalachicola-Chattahoochee-Flint River. Alabama and Florida are the downstream users who argue that Georgia has diverted too much water, mainly toward the Atlanta metro area. The dispute has gone on for a couple of decades, and has been the Supreme Court before; at present, the high court has appointed a special master to go over details, and send recommendations upward. History usually is that in cases like this, the master’s recommendations carry a lot of weight.

As the master commented, “Both States warn of dire consequences if the Court does not resolve this proceeding in their favor – Florida of an ecological and economic disaster in the Apalachicola Region; Georgia of a crippled city and arid farmland in Georgia.”

The lever in the Georgia-Florida side case is the U.S. Army Corps of Engineers, which has a number of water-related projects in the Georgia area.

Master Pierce Atwood noted that Georgia “argues that Florida’s asserted harms are imaginary, self-inflicted, or inflicted by the operations of the United States Army Corps of Engineers or changes in precipitation patterns (or some combination thereof ) but in any event cannot be traced to Georgia’s water use. Georgia also maintains that, without an order binding the Corps, Florida will not be assured any relief – assuming it has suffered any injury at all – by a decree entered in this proceeding because the Corps has the ability to impound water in various reservoirs that it maintains in the Basin.”

To this point, the players in the case have been the states, and not federal agencies. But the master bought some of the Georgia logic, and concluded this: “Because the Corps is not a party, no decree entered by this Court can mandate any change in the Corps’ operations in the Basin. Without the ability to bind the Corps, I am not persuaded that the Court can assure Florida the relief it seeks. I conclude that Florida has not proven by clear and convincing evidence that its injury can be redressed by an order equitably apportioning the waters of the Basin.”

Considering how widespread Army Corps (not to mention Bureau of Reclamation and other) project are around the country, it’s not hard to imagine, if the Supreme Court sustains the mater, the feds being dragged into a number of cases where they haven’t been a major player until now.

Wonder what Alabama thinks about that.

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