National Water Rights Digest Posts

Published December 10, 2017 by

Larger rights

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Quite a few people probably breathed easier after an Oregon Court of Appeals court rejected a proposal from a water utility business to draw water from the McKenzie River in western Oregon, to be used for utilities in smaller communities in the area.

It’s not that it’s a bad use for the water. And for all of western Oregon’s soggy reputation, solid water supplies are sometimes sketchy in many Oregon communities, even in the western area not far from the Pacific coast.

The reasons for the denial are a little simpler and more subtle than for, say, a water bottler.

The water would be going to a local area. Some of the ground water area communities have been using has been contaminated. Something not too different from what the businessman was proposing probably is in the future of the area.

But it needs more careful development. A water right can only be granted, under state law, if it can be put to use within five years; this project would take longer than that.

Specificity was the key behind the challenge to the use by WaterWatch of Oregon. That Portland group has been dogging the McKenzie application ever since 2010, saying it was contrary to the public interest on a number of grounds.

It noted in a statement, “The company proposed to lock up a large amount of McKenzie River water, but failed to identify any committed customers, could not complete the water development project in the time allowed, and failed to apply for needed land use approvals for developing the water project. The applicant also challenged the fish protection conditions recommended by the Oregon Department of Fish and Wildlife and proposed by the Oregon Water Resources Department.”

The developer also had an existing water right which was not yet developed, giving WaterWatch basis for pointing out that the business didn’t necessarily need the new right to pursue the project.

(A case in North Dakota emerging this month highlighted the western reality of a good many water rights sitting around the country essentially unused, and possibly forfeit through non-use, something may property owners across many retgions may have good reason to check out.)

The group also said, “The permit application drew considerable local media attention and inspired community concern regarding one of the public’s most valuable resources – water – in one of the state’s most iconic waterways. The harmful proposal threatened a river prized by fishermen, boaters, and nature enthusiasts from around the world. The McKenzie’s renowned beauty, along with the fish and wildlife it supports, in turn help sustain jobs and economic activity in the region.”

There is potential for review by the Oregon Supreme Court if an appeal is requested within 35 days.

But odds are the decision is in. And that sets a procedural bar for large-scale applicants for water rights, for very large projects, for some time into the future.

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Water Digest – December
Published December 3, 2017 by

Water Digest – December

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

The Bureau of Reclamation has released two funding opportunities for fiscal year 2018 through its Drought Response Program, which is part of the Department of the Interior’s WaterSMART program. These funding opportunities are available for entities to develop drought contingency plans and build long-term solutions to drought.

The U.S. Senate has confirmed Brenda Burman as the U.S. Department of the Interior Bureau of Reclamation Commissioner. She is the first woman to ever lead the Bureau.

Seniority in water rights is in many places a precious asset, but not a guarantee that the right won’t be taken away. That may happen in the case of Martha Carr, who lives in Burbank, California but owns property in South Dakota. He was the eventual inheritor of Robert Wittke, a settler who had filed for the right at French Creek near Custer in 1878.

The Texas Commission on Environmental Quality has held off until at least mid-December intervention in a water use battle over the San Saba River, where are landowners say that upstream farmers have been over-pumping water.
They maintain the upstream users have been pumping in excess of their permitted water rights, and have asked for a watermaster to control that use.

The Bureau of Reclamation and State of Utah are initiating negotiations for a water exchange contract, which proposes exchanging the state’s assigned Green River water right for use of Colorado River Storage Project water released from Flaming Gorge Dam. The negotiation meeting is scheduled for Monday, December 4, 2017, at 1:00 p.m. at the Dixie Convention Center, 1835 South Convention Center Drive, St. George, Utah.

Will the Governor’s Drought Interagency Coordinating Group recommend to Governor Ducey that he add the approaching “water year” to the State’s lengthy string of official drought years? Or will the panel recommend that the official dry spell designation end in Arizona, thus following in the footsteps of California, where that state’s drought designation was lifted in the wake of its extraordinarily wet winter? Considering that much of Arizona remains in the same long-term state of drought it has experienced since the mid-1990s, the ICG’s recommendation for maintaining the declaration was not the toughest of calls, as it turned out.
 

Weekly Digest

Published November 15, 2017 by

Beyond the local

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Much of the regulation of water in the United States is split up among the states, and we tend to think of water circumstances as local in nature.

But it’s not always so.

The new book The Death and Life of the Great Lakes, by Dan Egan, makes that point in many ways and in great detail.

It’s not about water rights per se, in that the subject is the Great Lakes which essentially are not appropriated in the sense of, say, many western state rivers.
But the breadth of impact, and its power, can easily jump from one water basin to another, and often does. The thin Erie Canal, for example, led to enormous ecological consequences for the entirety of the Great Lakes – an outcome that would have seemed inconceivable but for the fact that it actually happened.

Even greater effects happened when the thin land line separating the Great Lakes basin from the Mississippi basin was breached by a short canal, and officials had a heck of a time trying to keep ravenous fish rampaging in one system from entering the other and doing terrific damage there.

Not to mention the fact that, once you start linking water systems together, the idea of transferring needed water from one to another becomes increasingly conceivable. Egan uses the case study to the south of the battle between Tennessee and Georgia over their joint state line as a good example of what can happen.

It’s a well-told story – or link of stories – and well worth the read for anyone interested in the subject of water in the United States.

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Water Digest – November
Published November 1, 2017 by

Water Digest – November

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

The state of Oklahoma on October 10 approved a major water diversion request by the city of Oklahoma City. Oklahoma City had asked the state for a regular permit to use 115,000 acre feet from the Kiamichi River and Sardis Lake for general municipal uses. The state noted “the application was protested by 85 persons including entities, 25 of whom were recognized as parties at the date of the hearing,” which was held on August 21 to 24.

The state of Oregon positioned itself in late October to reject a proposal from Nestle Water for its plan to bottle water from the Cascade Locks area in the Columbia River Gorge. The proposal for a Nestle water bottling plant would involve an exchange of .5 cfs of spring water, presently being used for a state Department of Fish & Wildlife salmon hatchery, for an equivalent amount of Cascade Locks city groundwater.

In a critical ruling for Wisconsin’s waters, Dane County Circuit Court ordered the DNR to vacate, or invalidate, seven high-capacity well permits and remand one for consideration. Clean Wisconsin sued the DNR in October of 2016, after the agency issued a series of high-capacity well permits that disregarded its own scientific analysis of the impacts the wells would have on neighboring water bodies. The proposed wells would be located primarily in the Central Sands region of Wisconsin, where groundwater depletion is already a serious problem.

After five years of drought, the 2017 water year brought unexpectedly heavy precipitation, ranking second only to 1983 as California’s wettest year for statewide runoff. The dramatic swing in water conditions highlights the need to develop better long-range weather forecasting to cope with the state’s highly variable annual precipitation.

The Bureau of Reclamation has released a Finding of No Significant Impact for Alternative 1 from the Bureau of Land Management’s 2014 Final Environmental Assessment for the Southern Nevada Intertie (Harry Allen to Eldorado 500 kV Transmission) Project.

A new Boise River system feasibility study has been launched to investigate the possibility of increasing surface water storage in the Boise River watershed by raising the height of up to three dams on the Boise River. The Bureau of Reclamation and the Idaho Water Resource Board (IWRB) are working together on options to increase water storage capacity at Arrowrock, Anderson Ranch, and/or Lucky Peak dams.

Weekly Digest

Water Digest – October 2
Published October 1, 2017 by

Water Digest – October 2

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

With an eye to long-term, binational cooperation and to managing a more stable Colorado River System, representatives of the United States, Mexico and the Colorado River Basin States of the U.S. on Wednesday celebrated the “entry into force” of an agreement deemed essential to the System’s future.
The American signing, conducted at an “entry into force” ceremony in Santa Fe, N.M., applies the final flourish to the intensely negotiated agreement known as “Minute 323.”

The Bureau of Reclamation has completed an analysis of purchasing up to 6,000 acre-feet of groundwater from Modesto Properties for the East Bear Creek Unit of the San Luis National Wildlife Refuge Complex, under authorization of the Central Valley Project Improvement Act.

Local Utah engineering firms Hansen, Allen & Luce and Bowen Collins & Associates have partnered to study how Utah collects water use data and how the system could be improved.
The project is expected to cost about $300,000 and will be done with cooperation of the state Division of Water Resources.

The Bureau of Reclamation is preparing an environmental assessment (EA) for the Platte River Recovery Implementation Program, Proposed First Increment Extension. Reclamation, working with the states of Wyoming, Colorado, and Nebraska, water users, and environmental and conservation organizations, proposes to extend the First Increment of the basin-wide, cooperative Recovery Implementation Program by 13 years. Reclamation is doing this to meet its obligations under the Endangered Species Act. (photo)

Weekly Digest

Published September 15, 2017 by

By the states, by the feds

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It’s a long-running battle that loosely seemed to be settled a long time ago. But not quite.

In general, broad terms, most regulation of water rights happens on the state, not the federal, level. That has been true in considerable part because the feds – by way of congressional action – simply gave up its claim to manage water rights, as long as the states – or, any particular state – did so in a comprehensive way. The McCarran Act putting this in place was a formative piece of legislative in the area.

But it isn’t absolute, and it didn’t answer all questions. It left open the area of federal reserved rights, for example, the idea that the federal government implicitly has the right to enough water to carry out its legal responsibilities (water forest lands, for example).

A recent 9th Circuit Court of Appeals seemed to extend some of that principle to the area of groundwater, which is relatively new territory in the area of federal water rights. The decision generated quite a bit of concern in a number of western states, and 10 of them have filed an action challenging the decision.

One of those appellants is Nevada Attorney General Adam Paul Laxalt, who remarked, “Western states like Nevada are particularly impacted by the current uncertainty of groundwater rights created by this recent Ninth Circuit decision. By filing this brief, my office encourages the Supreme Court to take the necessary steps to clarify the States’ groundwater rights and to ensure Nevada’s best interests are being protected from unnecessary and unwarranted federal interference. As I have consistently demonstrated throughout my tenure as Nevada’s attorney general, my office stands ready to defend our state from unlawful federal overreach regardless of the source.”

As that office went on to explain, “Nevada’s brief explains how the Ninth Circuit’s decision creates significant uncertainty for all states, which have historically controlled water resources within their state. The brief encourages the Supreme Court to clarify whether the federal reserved water right doctrine extends to groundwater and, if so, under what circumstances, so as to provide guidance to all states, including Nevada, on how to manage their groundwater resources.”

It’s an uncertain case.

The federal limitations on water right governance are – or at least have been treated as – a matter of self-governance, largely. The legal standing of the states is a little unclear, and there’s some risk: An adverse decision could put at risk a number of prerogatives that most states have to now taken for granted.

But then, they may not feel they have a choice.

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Water Digest – September 4
Published September 3, 2017 by

Water Digest – September 4

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

The legal publication Courthouse News reported on August 31 about the challenge facing the 9th Circuit Court of Appeals in working through who has rights to what water in three complex water pumping cases based in western Nevada.

Comstock Mining Inc. said on August 29 that the Nevada Department of Transportation celebrated the completion of the new Infinity Highway (formerly USA Parkway) yesterday—three months ahead of schedule. The company also said it has escrowed the sale of 54 acre-feet of water rights in two transactions that generated over $550,000. The transaction is expected to close in the first week of September and the funds will immediately be used to pay down long-term debt, consistent with the Company’s original plan.

The California Water Storage Investment Program Project Review Portal is now active. This portal will allow the public to access WSIP applications, review, and decision related documents. The Water Commission’s next meeting is on September 20.

Weekly Digest

Water Digest – August 28
Published August 27, 2017 by

Water Digest – August 28

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

Nevada Attorney General Adam Paul Laxalt led a ten state coalition of attorneys general in filing a friend-of-the-court brief in the U.S. Supreme Court defending the ability of state governments to effectively regulate groundwater usage within their state. The brief urges the Court to review a recent Ninth Circuit decision that concluded, in conflict with multiple state-court decisions, that the federal government has broadly reserved rights to groundwater that preempt long-established state-law regulations.

The South Carolina Supreme Court on July 19 rejected a potentially sweeping challenge to the state’s water regulation system, which sought a declaration that it amounted to an unconstitutional taking.

Kinross Gold U.S.A., Inc., Trout Unlimited and the Rocky Mountain Elk Foundation announced on August 17 an agreement to protect and conserve important fish and wildlife habitat adjacent to Yellowstone National Park.

A federal court judge today found that the Bureau of Land Management failed to show how it would compensate for significant losses to wetlands and wildlife habitat caused by the Southern Nevada Water Authority’s massive groundwater pipeline development project.

The City of Aspen, Colorado, is in contract to buy two adjoining parcels of land in Woody Creek for $2.65 million to potentially use for water storage in the future.

A blueberry farm on Cockreham Island along the Skagit River will restore habitat on a nearby stream under a settlement agreement with the Washington Department of Ecology.

Weekly Digest

Published August 15, 2017 by

Is Hirst really so bad?

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Changes in Washington state water law were a prime topic for the Washington Legislature as it met several times (a regular session, and seemingly endless trailer ones) over the first half-plus of this year.

Those were prompted by what is called the Hirst decision, from last fall, delivered by the Washington Supreme Court.

Here’s the impact, and the need for legislation, from an editorial in the Tri-City Herald:

“Two hundred years of Western water rights history was tossed away last October when the state Supreme Court ruled — in what is now commonly known as the Hirst decision — that counties, in compliance to the state Growth Management Act, must bear the burden of ensuring there is enough water available before new wells can be drilled, otherwise building permits cannot be issued. We understand that too many wells could lead to a shortage of water, and we must protect the instream flow of creeks and streams. It makes sense to monitor and regulate our limited water supply. But previously, the state Department of Ecology had that responsibility — and the system worked well enough.”

That’s true, to the point that the state-run system worked reasonably well, and there was really no call (other than, arguably, legal) to change it.

And it is true that counties in Washington as in many other places are financially hard-pressed, not easily able to manage this additional task. That fact has led a large collection of building contractors, realtors and others to band together to press the legislature to do something about the Hirst decision – such as, preferably, in effect overturn it.

The case grew out of a specific rule by Ecology covering the Nooksack River in the northern part of the state. As the department recounted, “This rule closed most streams in the watershed to new water right permits but allowed landowners to use permit-exempt wells in most of the area. Whatcom County’s development regulations followed our instream flow rule. A reliable, year-round supply of water is necessary for new homes or developments. Before the Oct. 6, 2016, court decision, many counties relied on what the Department of Ecology said about whether year-round water was available. This court decision changes that – counties now have to make their own decisions about whether there is enough water, physically and legally, to approve a building permit that would rely on a well.”

Local control, in other words; and not necessarily with no input from the state, but with local control.

And not over all of the state: “The case directly relates to Whatcom County but appears to set legal precedent that applies in other counties where there are instream flow rules that were not intended to regulate permit-exempt water uses. It is unclear how the decision affects areas of the state where there are no instream flow rules. Counties are working to review the decision and what it means for them.”

Concern is warranted, but this doesn’t necessarily seem to mean a crisis in terms of getting water rights properly handled. It seems almost more like a matter of proper administration.

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Water Digest – July 17
Published July 16, 2017 by

Water Digest – July 17

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

A water adjudication in the Pojoaque Basin north of Sante Fe that has been ongoing for 51 years was ended on June 14 with a final judgment and decree issued by federal Judge William P. Johnson. The adjudication, dubbed the Aamodt case after the Los Alamos researcher (R. Lee Aamodt ) whose name was first listed among the defendants, has been in the process of settlement for a long time.

South Dakota may by the only state to bar withdrawal of more groundwater than is replenished into the system – as a specific limit set by state law. The subject came up at a July 12 meeting of the state Watrer Management Board, when member said they were unaware of any other state with a similar law in place.

A plan to allow for diversion of excess water from the basins of the Platte River to the Republican River in Nebraska reached a rough agreement on July 13 with a favorable vote by the board of the Lower Republican Natural Resources District.

The seemingly unlikely legal hammer of eminent domain has become the weapon of choice for low-population Inyo County as it seeks to reclaim water from Los Angeles.

Rebecca Mitchell, who played an instrumental role in production of Colorado’s Water Plan, has been named the new director of the Colorado Water Conservation Board.

Weekly Digest