National Water Rights Digest Posts


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.


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.

Weekly Digest


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.


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


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.


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


The big water rights news of last week – probably of the month as well – came from the New York City area, a place not usually thought of as a centerpoint of water right activity.

And though water rights weren’t most specifically on point in the U.S. 2nd Court of Appeals decision in Catskill Mountains Chapter of Trout Unlimited et al v. Environmental Protection Agency, but anyone who sees the relationship between those rights and water transfers will get it right away.

In essence, the decision reinstates (it had been knocked out in lower court) a rule dating to the Bush Administration, which said that the regulatory procedures imposed under the Clean Water Act do not apply to direct transfers between water bodies or basins.

It draws a significant line between matters of water quality and water supply, and that could be significant nationally eventually. The decision at this point applies only to the 2nd appellate district, in the country’s northwest. But such decisions often spread to other districts over time; and rules in other places may well be challenged in this wake of this decision.

What are the stakes?

A Colorado Law Review article said of the reinstated Water Transfers Rule that it “is untenable because it significantly weakens the CWA by increasing the likelihood that water transfers will introduce pollutants into clean lakes and rivers. Furthermore, it has revitalized the unitary waters theory, which, if adopted in other jurisdictions, will impede the ability to ensure that clean water quality standards are maintained.”

The court countered in its decision that “the Water Transfers Ruleʹs interpretation of the Clean Water Act – which exempts water transfers from the NPDES permitting program – is supported by several reasonable arguments. The EPAʹs interpretation need not be the ‘only possible interpretation,’ nor need it be ‘the interpretation deemed most reasonable.’ And even though, as we note yet again, we might conclude that it is not the interpretation that would most effectively further the Clean Water Actʹs principal focus on water quality, it is reasonable nonetheless. Indeed, in light of the potentially serious and disruptive practical consequences of requiring NPDES permits for water transfers, the EPAʹs interpretation here involves the kind of ‘difficult policy choices that agencies are better equipped to make than courts.’ʺ

In other words, the court’s decision isn’t necessarily dispositive in all cases: Clean Water Act considerations may be considered, but are not imposed everywhere.

The decision does seem to tilt the field a bit in favor of transfers, in that it lowers a hurdle those efforts sometimes have to struggle with.

But the longer-term impact will take a while to sort out, as challenges turn up in other courts in years to come. And it will be years: Remember, this challenge leading up to this decision lasted almost exactly as long as the Obama Administration did.


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

The 2nd U.S. Circuit Court of Appeals in New York on January 18 reversed a district judge in effectively reinstating a Bush-era rule which says direct water transfers are not subject to the permitting system set up by the Clean Water Act.

A representative of the New Mexico State Engineer’s office in January described to Lincoln County officials the chances of obtaining a new water right in the area. The upshot was: Somewhere around slim or none.

The Oklahoma city of Ada on January 17 will move forward with purchase of 120 acres of land linked to substantial aquifer rights. And the city of Alamosa, Colorado, has agreed to purchase more than a half-million dollars in water rights, presented held by a ranching corporation.

Nigeria’s government in January released a new national Water Use and License 2016 document.

Exeter Resource Corporation said on January 17 that it has secured a second water source, which will provide a timely development pathway for its 100% owned Caspiche gold oxide/ gold-copper project in Chile.

Weekly Digest


We actually do have a rough handle on how much groundwater there is – grand total.

The number has been estimated at six quintillion gallons. That’s 6,000,000,000,000,000,000 gallons.

The number comes from the British peer-reviewed journal Nature Geoscience, in an article published there a little more than a year ago.

Okay. That sounds like a lot (and obviously it is), but two points should be considered in thinking about it.

One is the rounded number: This is clearly an estimate, not a hard statistic. By which I don’t mean it was a number pulled out of the air, but it based on averages, algorithms and estimates. Tremendous sections of the land mass of the planet have never been seriously studied for their groundwater supplies, or for other important characteristics.

The other is reflected in a comment by one of the study’s authors to USA Today: “It is important to know how much groundwater there is because more than a third of the population in the USA and the world drink groundwater every day and it is crucial to agriculture and the environment.”

For the same reason, since groundwater overwhelmingly is used more or less near where it is located, groundwater supplies need to be explored and studied in much closer detail. The worldwide survey provides a good framework, but it should be seen as a beginning into the research.

A lot of places, most even, lack this. Among western states Idaho has done quite a bit on these lines, but that was forced in large part by the need for information to complete work on an adjudication. That was reflected in the report about new proposed legislation in Oregon calling for a fee to be imposed on groundwater users, the revenue to be used for groundwater studies in the state.

You can reasonably expect more like this coming down the road.


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

Allocation protested. St. Johns Riverkeeper, Florida Defenders of the Environment, Silver Springs Alliance, and Ocala resident Alice Gardiner jointly on January 9 asked for a formal administrative hearing to contest the issuance of the Sleepy Creek Ranch Consumptive Use Permit for an 84% increase in its water allocation. Two years ago, the St. Johns River Water Management District staff recommended denial of the permit request from Marion County, Florida, based on anticipated adverse effects on spring flows and a determination that an “increase in allocation of 1.12 mgd of groundwater is not consistent with the public interest….”

Streamlining. The Texas legislator who introduced a water rights streamlining measure in November said in January indicated he hopes that the push to amend environmental processes may move his measure forward in the new year. Senator Van Taylor, R-Plano, has introduced regulatory streamlining measures before. The new water measures add to the list.

Wyoming rights sale. Sasol synfuels of South Africa said in January that it plans to sell water rights, among other things, in its holdings around Lake DeSmet in Wyoming. The Wyoming Water Development Commission was reported to be considering purchase of the rights, which would be part of the sale of the M&M Ranch, a holding running to 13,000 acres.

Groundwater fee. A Beaverton legislator as produced legislation – in the form of three bills – to impose a fee on groundwater use, with revenues to be used for detailed study of the state’s groundwater status. Representative Ken Helm, D-Beaverton, said that the groundwater picture in Oregon, especially in the arid parts of the state, needs to be filed in.

Weekly Digest