Category: Column


The state of Colorado says – famously – that cannabis, or marijuana, is a crop that legally can be grown. The federal government’s rules take a dimmer view. Does that have an effect on water rights?

It certainly appears to.

And this arose in a case that doesn’t even involve marijuana. The instance concerned a western Colorado farmer growing hemp, which through biologically related to the cannabis plants, has no significant psychotropic qualities. One online description noted that “Hemp is one of the oldest domesticated crops known to man. It has been used for paper, textiles, and cordage for thousands of years. In fact, the Columbia History of the World states that the oldest relic of human industry is a scrap of hemp fabric dating back to approximately 8,000 BC.” It is often called industrial hemp. Versions of it were grown by George Washington, among others.

Hemp actually does not need pesticides and relatively little water. It should be an attractive option for farmers, but growing it is widely banned in the United States because it is related to the cannabis plants.

Nevertheless, there’s a federal ban on it. And in Colorado when a farmer wanted his standard water allotment from the Pueblo Reservoir to grow some hemp, the Bureau of Reclamation refused to release the water. The water is supposed to be held in storage for users, not parceled out at the bureau’s discretion … but then, this is a marijuana relative. That appears to override all else.

The point likely will be even more directly pertinent as marijuana crop production grows, and obviously not only in Colorado but especially in states like California, where farmers of most stripes are heavily dependent on irrigation water supplies.

There are conflicting notions here. One is that a farmer’s choice of what crops to grow isn’t much of a factor, or isn’t supposed to be, in the provision of first-in-time water rights. Then there’s also the point that in prior appropriation states (where this is coming up), water is supposed to be used for a “beneficial purpose” – and who gets to do the defining along that front?

Legislation is rolling along in Colorado (with a recent scheduling hiccup, but more efforts will be coming), and you can imagine a significant states rights vs. federal debate here, especially since in many areas the federal government has ceded basic control over water to the states.

This battle is only getting started.



Sophisticated mapping has become an increasingly important tool in the box of water regulators and planners. The U.S. Geological Survery is now taking some of that to a new level.

On April 6 the agency released a report showing very specific impacts of groundwater use, on a highly detailed map.

The sample map showed the reduction in flow in the Malad River in southern Idaho based on certain levels of groundwater use.

The map is a simulation, but it is specific enough to provide guidance for all kinds of water-interested people.

The USGS report noted

The Bear and Malad Rivers provide water for irrigation and to wetlands and wildlife habitat in the southern part of the study area, including the Bear River Migratory Bird Refuge north of Great Salt Lake. Although withdrawal from wells is a small percentage of the water used in the area, there is concern that additional ground­water development could reduce the amount of streamflow in the Malad-Lower Bear River Area.

“The information from this study will be used to aid the state engineer in making water-rights related decisions in the future,” said James Greer, assistant state engineer for the Utah Department of Natural Resources, Division of Water Rights.

Recent studies have shown that groundwater and surface water should be considered a joint resource. USGS scientists developed a groundwater flow model to better understand the relation between additional groundwater development and the reduction of groundwater flow into the Malad River. Results show that the amount of streamflow depletion in the Malad River depends on both depth and location of groundwater withdrawal. Scientists created color-coded maps that illustrate how depth and location of withdrawal could affect streamflow.

Look to see much more of this.



This may be a step too far for a number of people.

In New Zealand, the Whanganui River (alternatively called the Te Awa Tupua) has been given by a court the right – if that’s the correct word – to have its ecosystem health represented by legal counsel.

New Zealand is not alone in this. As the web site Gizmodo noted, “Just days later, India took similar actions, ascribing personhood status to two of its biggest and most sacred rivers, the Ganges and Yamuna. Similar to the way corporate personhood works in some countries, these rivers can now conceivably incur debts and own property, but more importantly, it means these rivers can petition courts (with the help of legal guardians, of course) to protect themselves from pollution and misuse.”

What are the implications?

Those are unclear enough that at least one academic, Julia Talbot-Jones at the Crawford School of Public Policy in Australia, has been raising the question. She has asked, “I want to understand why this new institutional arrangement has emerged for the management of the Whanganui River and how it differs from the traditional management approach. Is it likely to have an effect on peoples’ choices and preferences?”

And, there’s the question of how legal guardianship is to be set up.

And there are economic questions: “Although New Zealand is not unique in giving nature legal rights, there seems to be very little economic analysis of the potential impacts. Virtually no work has been done yet on analysing this new institutional arrangement and certainly nobody seems to be asking what this might mean in terms of peoples’ behaviour.”

And among other things, what else might be considered a “person” alongside a river? (For Americans: corporations, maybe?)

A cleaner approach might be to say that the people of New Zealand (or whatever entity tries something along these lines) have a vested right in the river and its immediate environs, and that encroachments have to be factored against that.

Keeping the rights on a human level might be the easiest way to deal with this over time. Initial inflections like this one can lead to unexpected outcomes.



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.



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.



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.



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.



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.



South Carolina is not one of the water-parched parts of the country.

It faces the ocean, after all, and several large rivers (Cooper, Santee, Savannah, among others) run through (or in the Savannah’s case, next to) it to the sea. The area gets plenty of rain.

South Carolina, like most eastern state, operates under the riparian water supply system: In a practical matter, if you need it, you can use it. There’s an underlying presumption that there will be enough.

And yet … there’s plenty of water concern here.

Since 2007, Clemson University has held biennial water resource conferences “to prepare for and meet the growing challenge of providing water resources to sustain South Carolina’s economy, while preserving our natural resources.” It has drawn hundreds of people each time. (The next is in 2018.)

This is not simply forward thinking, however. Just ask the people of Aiken, located a few minutes east of Augusta, Georgia.

A group of Aiken County residents in South Carolina, concerned about high water use by a couple of local corporate farms, have asked the state’s legislature to tighten water use regulation.

Aiken activists pointed to two large farms in the area, Walther Farms and BC Farms, as high water users on a par with, or higher than, local cities. Some of the draws come from an aquifer but much of the water is being pulled from the Edisto River.

And those residents say their own use of water is beginning to be impacted. One resident said in testimony, “This will ultimately be a statewide problem, but because we have 60 percent of the state’s total agricultural withdrawals on the Edisto; we have felt the effects of this law and its dangerous regulations first.”

The debate (which surely won’t be settled this session) has already made its way into the South Carolina legislature. It likely will make its way into the Clemson conference next year, too.



There’s no reason to think there won’t be a lot more of this.

And it’s been brewing for some time now.

The Kansas judge who delivered the ruling closing two wells, Linda Gilmore, was not making any big reversal of previous action. She had closed the wells operated by the company American Warrior back in 2013, though the closure then was simply temporary.

And that had stemmed from 2005 complaint by the Garetson Brothers, a farming operation whose managers were becoming increasingly concerned about the diminishing levels of the Ogallala Aquifer. The aquifer, which runs from Texas in the south to the Dakotas in the north, has been dropping steadily for decades. In 2007, after they got the state to start seriously investigating the Ogallala’s status, they withdrew the complaint: “Rather than being a positive catalyst for change in the effort to extend the useful life of the aquifer as a whole we have been perceived as selfishly damaging our neighbors for our own gain.”

So they were not especially eager to return to the fray, but they did five years later, when they cited evidence that their water rights, which were relatively senior in the area (their water usage in the area goes back 80 years), were being specifically impacted by other usage.

One news report said, “A fifth-generation farmer, Garetson says that if nothing changes in a few years, his area of western Kansas will run out of irrigation water. He has watched the declines only get worse. State figures that Kansas will use 75 percent of its water in 50 years if nothing is done, is on the low side, he said.”

This suggests that more than community spirit in aquifer protection is about to become engaged: We’re now getting into the first in time, first in right territory – people protecting their own basic water rights.

This could wind up changing the whole character of dealing with declining aquifers. If the dynamic turns into one of people who are acting to protect their own water (and livelihoods) rather than one of scattered activists who speak of waster in technical and theoretical terms … conditions may change.