National Water Rights Digest Posts

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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.

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

In the final days of the 2017 Idaho legislative session, lawmakers approved a change in state law to allow people or entities to apply for the temporary use of surplus water to prevent flood damage, recharge ground water, or work on ground or surface water-quality remediation. Governor C.L. “Butch” Otter signed the amendments to Idaho Code § 42-202A into law on March 30. An emergency provision makes the new law effective immediately.

Colorado legislators are struggling over legislation intended to require that the Bureau of Reclamation allow farmers to use their allotment of water stored by Bureau projects, even if that use is to grow plants in the cannabis family. The farmer whose case was on point, a grower in the Rocky Ford area near Montrose, was seeking only to grow hemp, which has no significant psychotropic qualities and is used for a wide range of other purposes. The Bureau of Reclamation denied him the water.

A high-end development of new residences near Bellingham, Washington, is slated to use existing wells for a water supply, with the water coming from the Governors Point Water Association. The development involves a half-dozen tracts on Governors Point, on a lake front south of Bellingham.

The commissioners of Washington’s Spokane County said last week they plan to set up a water bank for the county, and agreed to spend $1.2 million to get it started.

Weekly Digest

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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.

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

A group of water users in Idaho’s Wood River Valley want the state to more tightly regulate junior groundwater users in their area, saying their surface water rights may be impacted.

The city of Thiruvananthapuram in India has responded to weakening water leels at the Peppara dam, a key source of supply, by moving to curtail water use in the city.

Alamosa city in Colorado has for years obtained much of its water supply through groundwater, via a series of wells in the Rio Grande Basin. New regulations from state Colorado state engineer, however, may restrict the city’s activities in that area, in the wake of water court decisions indicating that the city and other groundwater users have had an effect on many surface wastger rights holders. In response, Alamosa is in the market for buying water rights from other parries.

Several dozen protesters collected on April 2 near Crestline in southern California to argue against water draws by Nestlé Waters North America of mountain water supplies.

The Bureau of Reclamation’s April 2017 Total Water Supply Available (TWSA) forecast for the Yakima Basin indicates that the water supply will fully satisfy senior and junior water rights this irrigation season.

Weekly Digest

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

A coalition of water-protection, public-health and animal-welfare organizations on March 30 filed a legal challenge over the water rights for a proposed 30,000-head mega-dairy near the Columbia River. The facility would be one of the nation’s largest dairy confined animal-feeding operations and poses a major threat to ground and surface water, air quality and public health in the region. Last month the Oregon Water Resources Department proposed approving key water rights required for Lost Valley Farm, a business venture of California dairyman Gregory te Velde.

Senator Orrin Hatch, R-Utah, and Congressman Jason Chaffetz, R-Utah, have introduced legislation to create a negotiated settlement between the state of Utah and the Utah Navajo Nation (the Nation) over water rights claims on the Colorado River.

The publicly elected Board of Directors of Coachella Valley Water District and Desert Water Agency have decided to ask the Supreme Court to review a lower court ruling that gives unprecedented groundwater rights to the Agua Caliente Band of Cahuilla Indians. The formal request for review will likely be submitted early this summer with the U.S. Supreme Court likely to accept or deny review of the case this fall.

The national government of Nigeria said it will begin regulating and licensing water drilling and use, through an agency called the Nigeria Integrated Water Resources Management Commission.

From Stanford: “A new report from Stanford’s Water in the West program assesses progress among states in the Colorado River Basin with respect to environmental water rights transfers, a legal tool that enables water rights holders to voluntarily transfer their water to rivers, streams and wetlands to benefit the environment and potentially generate revenue.”

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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.

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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.

Weekly Digest

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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.

Weekly Digest

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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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