Category: Column


Quite a few people probably breathed easier after an Oregon Court of Appeals court rejected a proposal from a water utility business to draw water from the McKenzie River in western Oregon, to be used for utilities in smaller communities in the area.

It’s not that it’s a bad use for the water. And for all of western Oregon’s soggy reputation, solid water supplies are sometimes sketchy in many Oregon communities, even in the western area not far from the Pacific coast.

The reasons for the denial are a little simpler and more subtle than for, say, a water bottler.

The water would be going to a local area. Some of the ground water area communities have been using has been contaminated. Something not too different from what the businessman was proposing probably is in the future of the area.

But it needs more careful development. A water right can only be granted, under state law, if it can be put to use within five years; this project would take longer than that.

Specificity was the key behind the challenge to the use by WaterWatch of Oregon. That Portland group has been dogging the McKenzie application ever since 2010, saying it was contrary to the public interest on a number of grounds.

It noted in a statement, “The company proposed to lock up a large amount of McKenzie River water, but failed to identify any committed customers, could not complete the water development project in the time allowed, and failed to apply for needed land use approvals for developing the water project. The applicant also challenged the fish protection conditions recommended by the Oregon Department of Fish and Wildlife and proposed by the Oregon Water Resources Department.”

The developer also had an existing water right which was not yet developed, giving WaterWatch basis for pointing out that the business didn’t necessarily need the new right to pursue the project.

(A case in North Dakota emerging this month highlighted the western reality of a good many water rights sitting around the country essentially unused, and possibly forfeit through non-use, something may property owners across many retgions may have good reason to check out.)

The group also said, “The permit application drew considerable local media attention and inspired community concern regarding one of the public’s most valuable resources – water – in one of the state’s most iconic waterways. The harmful proposal threatened a river prized by fishermen, boaters, and nature enthusiasts from around the world. The McKenzie’s renowned beauty, along with the fish and wildlife it supports, in turn help sustain jobs and economic activity in the region.”

There is potential for review by the Oregon Supreme Court if an appeal is requested within 35 days.

But odds are the decision is in. And that sets a procedural bar for large-scale applicants for water rights, for very large projects, for some time into the future.



Much of the regulation of water in the United States is split up among the states, and we tend to think of water circumstances as local in nature.

But it’s not always so.

The new book The Death and Life of the Great Lakes, by Dan Egan, makes that point in many ways and in great detail.

It’s not about water rights per se, in that the subject is the Great Lakes which essentially are not appropriated in the sense of, say, many western state rivers.
But the breadth of impact, and its power, can easily jump from one water basin to another, and often does. The thin Erie Canal, for example, led to enormous ecological consequences for the entirety of the Great Lakes – an outcome that would have seemed inconceivable but for the fact that it actually happened.

Even greater effects happened when the thin land line separating the Great Lakes basin from the Mississippi basin was breached by a short canal, and officials had a heck of a time trying to keep ravenous fish rampaging in one system from entering the other and doing terrific damage there.

Not to mention the fact that, once you start linking water systems together, the idea of transferring needed water from one to another becomes increasingly conceivable. Egan uses the case study to the south of the battle between Tennessee and Georgia over their joint state line as a good example of what can happen.

It’s a well-told story – or link of stories – and well worth the read for anyone interested in the subject of water in the United States.



It’s a long-running battle that loosely seemed to be settled a long time ago. But not quite.

In general, broad terms, most regulation of water rights happens on the state, not the federal, level. That has been true in considerable part because the feds – by way of congressional action – simply gave up its claim to manage water rights, as long as the states – or, any particular state – did so in a comprehensive way. The McCarran Act putting this in place was a formative piece of legislative in the area.

But it isn’t absolute, and it didn’t answer all questions. It left open the area of federal reserved rights, for example, the idea that the federal government implicitly has the right to enough water to carry out its legal responsibilities (water forest lands, for example).

A recent 9th Circuit Court of Appeals seemed to extend some of that principle to the area of groundwater, which is relatively new territory in the area of federal water rights. The decision generated quite a bit of concern in a number of western states, and 10 of them have filed an action challenging the decision.

One of those appellants is Nevada Attorney General Adam Paul Laxalt, who remarked, “Western states like Nevada are particularly impacted by the current uncertainty of groundwater rights created by this recent Ninth Circuit decision. By filing this brief, my office encourages the Supreme Court to take the necessary steps to clarify the States’ groundwater rights and to ensure Nevada’s best interests are being protected from unnecessary and unwarranted federal interference. As I have consistently demonstrated throughout my tenure as Nevada’s attorney general, my office stands ready to defend our state from unlawful federal overreach regardless of the source.”

As that office went on to explain, “Nevada’s brief explains how the Ninth Circuit’s decision creates significant uncertainty for all states, which have historically controlled water resources within their state. The brief encourages the Supreme Court to clarify whether the federal reserved water right doctrine extends to groundwater and, if so, under what circumstances, so as to provide guidance to all states, including Nevada, on how to manage their groundwater resources.”

It’s an uncertain case.

The federal limitations on water right governance are – or at least have been treated as – a matter of self-governance, largely. The legal standing of the states is a little unclear, and there’s some risk: An adverse decision could put at risk a number of prerogatives that most states have to now taken for granted.

But then, they may not feel they have a choice.



Changes in Washington state water law were a prime topic for the Washington Legislature as it met several times (a regular session, and seemingly endless trailer ones) over the first half-plus of this year.

Those were prompted by what is called the Hirst decision, from last fall, delivered by the Washington Supreme Court.

Here’s the impact, and the need for legislation, from an editorial in the Tri-City Herald:

“Two hundred years of Western water rights history was tossed away last October when the state Supreme Court ruled — in what is now commonly known as the Hirst decision — that counties, in compliance to the state Growth Management Act, must bear the burden of ensuring there is enough water available before new wells can be drilled, otherwise building permits cannot be issued. We understand that too many wells could lead to a shortage of water, and we must protect the instream flow of creeks and streams. It makes sense to monitor and regulate our limited water supply. But previously, the state Department of Ecology had that responsibility — and the system worked well enough.”

That’s true, to the point that the state-run system worked reasonably well, and there was really no call (other than, arguably, legal) to change it.

And it is true that counties in Washington as in many other places are financially hard-pressed, not easily able to manage this additional task. That fact has led a large collection of building contractors, realtors and others to band together to press the legislature to do something about the Hirst decision – such as, preferably, in effect overturn it.

The case grew out of a specific rule by Ecology covering the Nooksack River in the northern part of the state. As the department recounted, “This rule closed most streams in the watershed to new water right permits but allowed landowners to use permit-exempt wells in most of the area. Whatcom County’s development regulations followed our instream flow rule. A reliable, year-round supply of water is necessary for new homes or developments. Before the Oct. 6, 2016, court decision, many counties relied on what the Department of Ecology said about whether year-round water was available. This court decision changes that – counties now have to make their own decisions about whether there is enough water, physically and legally, to approve a building permit that would rely on a well.”

Local control, in other words; and not necessarily with no input from the state, but with local control.

And not over all of the state: “The case directly relates to Whatcom County but appears to set legal precedent that applies in other counties where there are instream flow rules that were not intended to regulate permit-exempt water uses. It is unclear how the decision affects areas of the state where there are no instream flow rules. Counties are working to review the decision and what it means for them.”

Concern is warranted, but this doesn’t necessarily seem to mean a crisis in terms of getting water rights properly handled. It seems almost more like a matter of proper administration.



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.



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.



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.



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.



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.



There are two main reservoirs on the main stem of the southwestern Colorado River: Lake Mead, impounded by Hoover Dam near Las Vegas, and Lake Powell, impounded by Glen Canyon Dam in northern Arizona.

The future of Glen Canyon has been thrown into considerable dispute over the last few years, and a plan called Fill Mead First, put together by the Glen Canyon Institute (in Salt Lake City) has generated some support in the region. A Utah State University study describes it this way:

The Fill Mead First plan would establish Lake Mead reservoir as the primary water storage facility of the main-stem Colorado River and would relegate Lake Powell reservoir to a secondary water storage facility to be used only when Lake Mead is full. The objectives of the FMF plan are to re-expose some of Glen Canyon’s sandstone walls that are now inundated, begin the process of re-creating a riverine ecosystem in Glen Canyon, restore a more natural stream-flow, temperature, and sediment-supply regime of the Colorado River in the Grand Canyon ecosystem, and reduce system-wide water losses caused by evaporation and movement of reservoir water into ground-water storage. The FMF plan would be implemented in three phases. Phase I would involve lowering Lake Powell to the minimum elevation at which hydroelectricity can still be produced (called minimum power pool elevation): 3490 ft asl (feet above sea level). At this elevation, the water surface area of Lake Powell is approximately 77 mi, which is 31% of the surface area when the reservoir is full. Phase II of the FMF plan would involve lowering Lake Powell to dead pool elevation (3370 ft asl), abandoning hydroelectricity generation, and re-leasing water only through the river outlets.

It’s a dramatic plan, and could have some environmental benefits in the Glen Canyon area, but there are issues.

A significant amount of the disagreement has to do with the amount of rock and soil damage the Glen Canyon project has done, and what the result would be if water is drained from the area.

The Arizona Department of Water Resources, in looking at the Utah study, suggested, “The Fill Mead First proposal would have little effect in its initial phases on the amount of fine-grain sediment released into the Colorado River below Glen Canyon Dam. The plan’s final phase, on the other hand, would “cause significant ecosystem adjustments associated with the sudden change from relatively clear water to a very turbid river.” The assessment concluded that unless Glen Canyon Dam was bypassed completely, it would be impossible to provide the supply of sand needed to reconstitute the eddy sandbars and camping beaches that today are an important part of the river’s ecosystem throughout the Grand Canyon.”

This is something that will take a lot of study before any action is taken. As any environmentalist should know, when it comes to action in the environment, you never do just one thing.