National Water Rights Digest Posts


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.