National Water Rights Digest Posts

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

A special master on February 14 sided with Georgia in its dispute with Georgia over water rights in the Apalachicola River, Chattahoochee River and Flint River.

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.

Dropping water levels in Kenya’s Lake Turkana following the development of dams and plantations in Ethiopia’s lower Omo Valley threaten the livelihoods of half a million indigenous people in Ethiopia and Kenya, Human Rights Watch said on February 14.

The Idaho Senate has voted to confirm four members of the Idaho Water Resource Board who were reappointed to new four-year terms by Gov. C.L. “Butch” Otter. Idaho Water Resource Board Chairman Roger Chase of Pocatello was confirmed for a third term; Albert Barker, a Boise attorney, was confirmed for a second term; Vince Alberdi of Kimberly, retired, was confirmed for a third term; and John “Bert” Stevenson of Rupert, retired, was confirmed for a second term.

A measure that would have let Wyoming state agencies negotiate for water rights in Lake DeSmet failed on February 15 in the state Senate.

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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.

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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 Supreme Court will hear next from advocates for Texas and New Mexico in their battle over water flows in the Rio Grande. Texas appears to have the upper hand.

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. South Carolina, a relatively wet riparian-doctrine state, has relatively few restrictions on water use. But as the state’s House Legislative Oversight Committee heard in late January, concerns are rising.

State legislative season has kicked in around the country, but maybe nowhere is the water right front as active as in Montana. Out in the Big Sky, at least 18 water rights related bills were introduced by early February.

TriMetals Mining Inc. said on February 7 that one of its subsidiaries has acquired the rights to 1,658 acre feet of water per year through a water lease agreement which includes an option to purchase the water rights.

Concerns about water levels in sensitive peatlands, the government of Indonesia said on Feburary it will issue a regulation requiring property owners to set up systems to monitor water levels.

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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.

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

A Kansas court has closed permanently two wells operated by the company American Warrior in light of a lawsuit filed by a local senior water right holder, the Garetson family. That extends a temporary injunction that had been in place, ordered by District Court Judge Linda Gilmore, since 2013.

The Montana Department of Natural Resources and Conservation on January 14 issued a preliminary water right permit for Montana Artesian Water Company, which would prospectively allow it to withdraw large amounts of water from the Deep Artesian Aquifer through a well.

The city of Calistoga, California, on January 26 prevailed in a challenge to its municipal water supply rights.

The town board of the Colorado city of Windsor voted on January 23 to buy a large batch of water rights – priced at $2.1 million – to maintain nearby Lake Windsor and levels of current water use in the city. Windsor is a community of about 20,000 people.

The documentary film “Water & Power: A California Heist” was shown at the Sundance Film Festival in Utah in late January.
Director Marina Zenovich visited communities in the San Joaquin Valley where water disparities abounded. As a review in the Salt Lake Tribune said, “where locals can’t get clean tap water. However, in the corporate agribusinesses near those towns, there’s plenty of water to grow almonds, pistachios and pomegranates.”

Weekly Digest

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For months leading up to now, and for months to come this year – most likely at least, on the latter front – negotiations have been underway on an important agreement: Between the United States and Mexico, on how to manage and apportion the waters of the Rio Grande, which forms much of the border between them.

It’s a complex subject. The river originates, of course, in the United States (in Colorado), but cross much of its extremely long run borders two countries and drains many subsidiaries. It is one of the largest river systems in both the United States and Mexico.

The umbrella is a treaty dating to the 40s giving Mexico two-thirds of the Rio Grande system’s water and the United States the remainder. (Many of the largest tributaries are in Mexico.) In 2012 a general agreement between the countries led to a usable state of affairs on the river, but the deal sunsets at the conclusion of 2017. This expiry also coincides with a drought that has blasted the area through most of the agreement period.

That creates a tough negotiating situation on both sides of the river. But now the effort has gotten a lot tougher, since President Donald Trump’s recent declaration of all and his war of words, and ramping up of bitter feelings, with Mexico.

As the San Antonio News-Express put it in an editorial last year, “Psst, Trump: Did you know that treaties with Mexico prevent it or the U.S. from building within the river’s flood plains and that, in Texas, most land along the border is privately owned? Take them through eminent domain?”

Many aspects of the U.S.-Mexico relationship can be kicked down the road (however poor an idea that may be). The water relationship cannot. Water users and property owners for hundreds of miles along the border, on both sides, will be fried and dewatered off their land if the countries simply clam up and quit talking.

And they easily could. Top executive branch officials in either or both countries could quash the talks or any agreement without any sort of appeal.

Except among people near the border, there’s been little discussion of all this. So far. Don’t be surprised if there’s a good deal more soon.

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

Jon Steverson, the top administrator in the Florida Department of Environmental Protection, in January resigned after legislative complaints about exploding legal bills in the state’s water war with Georgia. He will depart on February 3. Steverson will go to work for the law firm Foley Gardner, which is one of the four private firms the state hired to prosecute its claims in the water case.

Canamex Resources Corp. said on January 24 that the Nevada Division of Water Resources has granted it an extension through 2017 for a subsurface water right for the Bruner Gold Project located in Nye County, Nevada.

The Idaho Department of Water Resources has ordered a reduction on water use by holders of about 70 rights holders in the eastern part of the state. They were not participants in a groundwater mitigation program.

The documentary film “Water & Power: A California Heist” was shown at the Sundance Film Festival in Utah in late January.
Director Marina Zenovich visited communities in the San Joaquin Valley where water disparities abounded.

Weekly Digest