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Probably you won’t get a tremendous amount of argument to the idea that California could use something of a repair job on its water administration system. You’ll get none here.

Whether the new assembly-passed bill seeking to do that will be the answer a lot of eople are looking for is another issue.

Here’s a description of it from Assemblymember Adam Gray, its chief sponsor:

“AB 313 establishes a new water rights management structure, creating a new Water Rights Division in the Office of Administrative Hearings (OAH) to handle all water rights matters. The shift removes conflicts of interest and built-in biases in the current system. The State Water Resources Control Board (SWRCB) currently exercises vast control over California’s water rights. The SWRCB has the power to write regulations, initiate enforcement actions, and conduct hearings in its own courtroom in which Board staff act as the prosecution and Board members act as judge and jury.”

Okay, so a new agency would be created. How would that help improve matters as compared to doing a renovation on the old one (the Water Resources Control Board)?

There’s actually a case here. The new agency would come with administrative law judges who would decide cases in a court-like setting, rather than by administrative fiat. This would be closer to a water court-type system such as many states have. Gray’s argument is that by spreading the authority around, things are less likely to become choked up in a system dominated by a few administrators.
The water court-type system isn’t exactly setting land speed records for adjudicative action either, though. In most states where that kind of setup is in place, water cases tend to take a very long time.

There is sometimes a lack of coordination in the water court system that can mean some weakness the system of water administration, which would be counter to what this bill is trying to accomplish. The idea here is supposed to involve a more stable and thoughtfully-developed water system.

It may, however, be somewhat less susceptible to pressure from various interest groups, which has long been an important part of what bedevils California water administration, and has ever since California statehood.

Some of the states with relatively efficient water management systems, such as Idaho and Arizona, seem to get by on a kind of hybrid, a mix of state administration with strong court involvement. That’s what allowed Idaho to pull together within one generation – a remarkable instance of speed and agility – the adjudication of the Snake River Basin, the largest stream adjudication in the country. That and an atmosphere of cooperation among the parties involved.
And that may be the other key thing to watch out for.

In the end, the structure may matter a good deal less than the willingness of the people involved to effectively work together. Until that willingness kicks in, the best structure in the work isn’t likely to solve a state’s water management problems.


Water rights weekly report for May 22. For much more news, links and detail, see the National Water Rights Digest.

California lawmakers acted decisively Tuesday to make fixes to the state’s broken water management structure. Assembly Bill 313, introduced by Assemblyman Adam C. Gray (D-Merced), overwhelmingly passed the California Assembly with an initial 55-0 vote. The bill makes necessary reforms to how the state manages water rights.

The U.S. Army Corps of Engineers began flood fight operations throughout the Central U.S., along the Mississippi and tributary rivers, in response to heavy rainfall on April 28-30 . High water flows are impacting navigation and stressing federal and non-federal levee systems.

The Bureau of Reclamation announces that Klamath River emergency dilution flows will not be required in 2017 to mitigate the effects of a parasite called Ceratanova shasta (or C. shasta) on outmigrating juvenile salmon. The announcement is made following weeks of monitoring parasite spore concentrations and prevalence of C. shasta infection among outmigrating salmon, and monitoring conducted by Oregon State University, the Karuk Tribe and the U.S. Fish and Wildlife Service.

The Bureau of Reclamation has released the Finding of No Significant Impact for the approval to transfer recaptured Restoration Flows from Friant Division long-term contractors to Pleasant Valley Water District during 2017. The FONSI is based on the analysis of potential impacts analyzed and disclosed in the 2013 Recirculation of Recaptured Water Year 2013-2017 San Joaquin River Restoration Program Flows Environmental Assessment.



A special master appointed by the United States Supreme Court – and emphatically given charge of the case in question after an appeal from hi was turned back – on December 19 delivered a ruling in State of Montana v. State of Wyoming, on the terms of a water rights compact between the two states.

Here is what Montana Attorney General Tim Fox said about the ruling:

“Today’s decision is a big win for the State of Montana and its water users. I am pleased that the Special Master recognized the State of Montana’s right to assert its Compact rights, and has ruled that Montana is entitled to a specific judicial declaration of its rights.”

And here is Wyoming Attorney General Peter Michael:

“What this case confirms is that the primary solution to water issues in Montana on the Tongue River can be found in Montana’s operation of the Tongue River Reservoir. Montana’s internal operational decisions have the biggest impact on its ability to cope with drought, and fortunately, over the course of this litigation Montana has taken that lesson to heart. Recent changes in reservoir operational practices in Montana have been much more conservative and responsible, and we anticipate fewer future disputes as a result.”

Both states seem to be saying they’re happy with the result. Is this just a matter of putting a happy face on the situation for at least one of them, or could it mean the decision really does strike a golden mean?

There was, in the master’s decision, a split between the states, points accepted in the contentions made by both states. He said for example that “I conclude that Wyoming’s motion for summary judgment as to damages should be granted, subject to Montana’s right to pursue a water remedy instead of monetary damages and to Montana’s right to propose an alternative method of calculating pre-judgment interest.” Both states get something; the case isn’t a slam dunk.

Beyond that, there’s a suggestion here that it might mean there’s an attempt all around at some diplomacy: A suggestion that there’s an opportunity to negotiate the dispute away rather than force a settlement in court.

And maybe just maybe both states are dealing with it in that spirit, looking more at the pluses than the minuses.

Both may save themselves some legal costs if they do.


Water rights weekly report for January 2. For much more news and detail, see the National Water Rights Digest.

Infrastructure. On December 16 President Barack Obama signed the Water Infrastructure Improvements for the Nation Act. From his statement: “Today I am signing the Water Infrastructure Improvements for the Nation Act into law. It authorizes vital water projects across the country to restore watersheds, improve waterways and flood control, and improve drinking water infrastructure. The law also authorizes $170 million for communities facing drinking water emergencies, including funding for Flint, Michigan, to recover from the lead contamination in its drinking water system.”

Montana v. Wyoming. A Special Master appointed by the Supreme Court of the United States ruled December 19 in State of Montana v. State of Wyoming that the state of Montana is entitled to specific declaration of its water compact rights, to recovery of damages in the form of water from the State of Wyoming, as well as that Montana has the right to fill the Tongue River Reservoir to the pre-1950 levels. The Court’s decision is the latest development in the nine year legal battle surrounding water use under the Yellowstone River Compact, passed by Congress in 1950. The dispute originated out of concern by the state of Montana that Wyoming did not recognize Montana’s water rights under the Yellowstone River Compact.

Recalculate transfer. The Colorado Supreme Court on December 5, in Grand Valley Water Users Association v. Busk-Ivanhoe, Inc., ordered a recalculation of allowable intermountain water transfers that may reduce the amount shipped from west to east, specifically to the high-population areas of the Front Range. The case grew from a 2014 ruling by Water Court 2 concerning the partial interest by the city of Aurora in the Busk-Ivanhoe Transmountain Diversion Project. The specific decision concerned whether the storage of the water, once transferred, is an essential part of a water right. The Supreme Court, overturning the water court, said that it isn’t.

Umatilla transfer. A water rights agreement between the U.S. Army – more specifically, its Base Realignment and Closure section – and the local Columbia Redevelopment Authority may clear the way for final resolution of the old Umatilla Chemical Depot property near Boardman, Oregon. The depot was created shortly in advance of World War II, in 1941, and was a storage point for a variety of military supplies. After 1962 its mission was focused to storage and disposal of military ammunition and chemicals. Disposal was completed in 2014, and the Department of Defense began to prepare for abandoning the site. Its future uses, however, have been the subject of negotiation between the Army and local interests. A local entity called the Oregon Citizens Advisory Commission (later, the Columbia Development Authority), with members named by the state’s governor, has worked on the transition. Area residents have envisioned using much of the area for industrial or other commercial uses.

Havasupai. Arizona’s Havasupai tribe, not often a major participant in the southwest’s legal water battles, in early December filed a lawsuit in U.S. District Court aimed at protecting groundwater sources around its reservation. The situation is unusual. The tribe lives in the Grand Canyon, as it has for hundreds of years. It uses springs, falls and other water sources emerging from the canyon’s sides. The tribe said that 19 area defendants, prominent including corporations working on uranium mining, have pulled water away from those sources used by the tribe.