National Water Rights Digest Posts


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


Donations usually move ahead without much dispute or controversy. But Black Hills Energy is finding things aren’t always that simple.

BHE, based in Rapid City, is “the business name under which we operate our natural gas and electric utilities, serves 1.2 million customers in eight states: Arkansas, Colorado, Iowa, Kansas, Montana, Nebraska, South Dakota and Wyoming. Our utilities are subsidiaries of Black Hills Corp.”

One of those areas has been around Pueblo, Colorado, where the company has operated power stations for which it no longer needs the water. The decision to off-load the water doesn’t seem to be in dispute.

So BHE offered to give the city, and relevant divisions, those water rights and conveyances they had used.

In its brief to the Colorado Public Utilities Commission, the utility said “Our donation of the water rights … will provide an immediate benefit to the Pueblo Board of Water Works, the city of Pueblo and the community at large, because it will be a significant contribution towards the continued viability of the hub of Pueblo’s Downtown and a key tourist attraction — the HARP.”

(The HARP, the Historic Arkansas Riverwalk of Pueblo) is a much-touted local riverfront event and development area, which needs solid flows through the Arkansas River to prosper.)

One of the three PUC commissioners, a native of Pueblo, was all in favor of the donation. The other two were not. They asked why the utility didn’t try to sell the rights instead. The front range of Colorado is a hotbed of water transfer activity, and so is the Arkansas River specifically.

There is some basis for that point, because electric power rates in Pueblo have been the subject of some protest. The Colorado Springs Gazette said in an editorial last summer, “Colorado’s Public Utilities Commission should hesitate before granting Black Hills Energy another rate hike in Pueblo. … Black Hills serves about 94,000 customers in Pueblo and other parts of Southern Colorado, having acquired Aquila in 2008. Since coming to town, Black Hills has imposed one rate hike after the next.”

The two majority commissioners blocked the donation – for a time at least, suspending the action pending further consideration. The consideration will come largely from others. The majority commissioners are in the process of departing the commission, to be replaced by new members. How their replacements will view the matter is unknown.

But obviously, water rights have their price. Pueblo may be in the process of deciding, in a larger sense, what they’re worth.


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

Army Corps. The U.S. Army Corps of Engineers said on January 6 that it had published revised and renewed nationwide permits necessary for work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The new NWPs will take effect March 19, and replace the existing permits, which expire on March 18.

Water court. A bill proposed by a Montana legislative interim committee on water is proposing a measure (Senate Bill 28) aimed at increasing the state water court’s jurisdiction. The measure came up for a strong discussion on January 4 before the Senate Judiciary Committee, in a first hearing.

Donation. The energy marketer Black Hills Energy has said it wants to donate water rights in the Pueblo, Colorado, area to public agencies there. But that planned donation has raised some eyebrows. The water once was used for Power Stations 5&6, which no longer are in use. It would go to Pueblo city and to its Board of Public Works.

Compact vote. A tribal vote on the Blackfoot water rights agreement and compact, which was passed by Congress and signed by President Obama last year, will be up for a local vote this spring.
The tribe’s business council has set a vote for April 20.

No hearing. The Washington Supreme Court said it would not hear a water rights case involving a well that was said to impact in-stream flows. Richard and Marnie Fox in 2014 sought a building permit that hinged on use of a well. Skagit County rejected the request, saying the well might affect in-stream flow necessary for fish.

Weekly Digest


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.