22ND ANNUAL ROCKY MOUNTAIN LAND USE INSTITUTE CONFERENCE: LAND USE FOR A LIFETIME: CHANGING DEMOGRAPHICS AND SHIFTING PRIORITIES

Denver, Colorado   March 7, 2013

Planning for Extreme Drought: How Communities are Thinking About and Planning For Extreme Drought

The recent drought in the West forced some local and state officials onto the cutting edge of planning and adapting to extreme drought. Water resource management in extreme drought has significant implications to municipal, industrial, and agricultural water and land uses. Some Colorado municipalities are proactively developing programs including the WISE project (Water Infrastructure and Supply Efficiency) and other plans to ensure its constituents will have the water they need. Alex Davis, Principal of GBSM, a Denver based consulting and public affairs firm, and Eric Hecox, Executive Director, South Metro Water Authority, Greenwood Village, Colorado gave this presentation.

The Problem of Prior Appropriation

Alex Davis presented a brief background on western water law, before talking specifically about prior appropriation. While the doctrine of prior appropriation worked really well in the west for the first century, now it is a huge problem. The single most overarching problem in the West is planning for the next century by figuring out how to solve complex problems facing us is prior appropriation. It is ad hoc, splintered, drives decision making processes down to the smallest entity, and each entity is pitted against every other water user in the basin. Prior appropriation sets municipalities against municipalities; energy users against farmers; etc.

The West is full of competing uses for a severely limited water supply. Currently water supplies do not meet water demand in Colorado. The western slope has more water than Front Range—where 80% of the water is on the west side of Colorado, and only 20% of the population, and, conversely, the Front Range has 20% of the water, and over 80% of the population. On rivers like the South Platte, the general calling date is an 1865-69 date. Therefore, we’ve been over allocated on the South Platte for over a hundred years. The prior appropriation system is already over allocated, so how are we supposed to plan for population increases in the future?

Davis noted that planners suggest Colorado’s population will double by 2050, increasing to 5 million people. 80% will live on Front Range, resulting in increased demands on agriculture, energy, food, and the environment. When people on average use 100 gallons per capita per day to supply basic needs, 500 gallons of water per day in food, and 500 gallons per day in energy, how are we going to face the future? We must think holistically when it comes to conservation.

“In the West, when you touch water, you touch everything.” — Wayne Aspinall

Davis said that the future is uncertain. One challenge for planners is climate change, because we do not know how it will impact water availability. Suggestions of climate change impacts include the potential for temperatures rising 2.5 to 4 degrees; there could be a 5 to 20% reduction in Water availability; Colorado could see less snow pack than we traditionally have, but see more intense rain storms and earlier runoff. In essence, water supply planning will become more complex.

Water is the foundation of planning for the future, land use planning, and managing energy reserves. The biggest challenge we have is figuring out how to get all of the disparate water users to work together to solve complex problems. Who makes the tradeoffs and who decides? We know we do not have enough water to meet all needs. Who decides what is the highest value of water? We do not have a huge slate of options. Water supply options will likely be a mixture of conservation; reuse; agricultural transfers; new water supply development and storage; and multi-purpose.

Davis concluded suggesting that the best solutions are really local. There is no way the federal government can determine the best solution for the St. Vrain River, as the nuances of the local governments, communities, and attitudes differ greatly. The phrase, “think globally and act locally” applies to water planning, as is where the solutions lie. Davis stated that while she did not have lots of answers to the problems, we must think about how we create the structures to allow more regional collaboration, thinking, and solutions.

Many Parties, One Need

Eric Hecox spoke next, describing specific local decisions that attempt to drought-proof Colorado municipalities along the Front Range. Hecox first described the South Metro Water Supply Authority (“SMWSA”), a membership organization of 15 water providers in the south metro area of Denver. These entities are normally pitted against each other, but are bound together by one need—all of these entities rely on the groundwater supply in a declining aquifer. That reality forced them to come together to develop alternatives, as they need the economies of scale to make their water projects financially possible. SMWSA developed regional renewable water projects to use the Denver Basin Aquifer. While the aquifer is pretty much drought proof, and as a base supply it is a liability, it gives the region a competitive advantage against the state.

Hecox said that in 2002 water planning changed for water communities in Colorado, as the drought that year was the single largest drought on record (until last year). The drought was a wake-up call for many state water providers. The city of Aurora, just east of Denver, was one of the hardest hit cities because it has a junior right to water. Aurora implemented extreme drought restrictions, and was within months of running out of water before a late spring blizzard.

The drought scared Aurora into action, and they developed the Prairie Waters Project downstream of the Denver metro waste water plant. Essentially the Prairie Waters Project became a very large reuse project with a capacity of 10,000 acre-feet per year, and is expandable to 50,000 acre-feet with additional infrastructure. The project includes a 34 mile pipeline with 3 pump stations, a multi-barrier state-of-the-art treatment process. In all, the Prairie Water Project’s infrastructure cost 800 million dollars. Despite the cost, Aurora conceived, planned, and built Project in less than ten years.

WISE Partnership

Prairie Waters created a Water Infrastructure and Supply Efficiency (“WISE”) partnership between the cities of Denver, Aurora, and the SMWSA. WISE creates a secondary water supply and system to mitigate droughts for the Front Range. Further, Aurora gets cost sharing in this expensive project. South Metro also benefits from a renewable water supply, as the water is used and reused in a continuous cycle. This WISE partnership impacts and serves over two million people.

In additional to the local partnership, Hecox, believes that the WISE Partnership also has a number of regional benefits. Denver, Aurora, and South Metro are in a partnership. This project builds regional cooperation and partnerships and recognizes the interrelationship of the region. This opens the door to regional cooperation and provides a sustainable supply to SMWSA without compromising Aurora’s and Denver’s water supplies.

Through this project, several of the largest cities in Colorado hope to cope with drought. They hope that through planning, they will become drought proof.

As continued drought and lack of water plagues agriculture, municipalities, and the energy industry, instead of looking for the federal government to solve problems, perhaps the real solutions can be found at the local level. By following the example of the WISE partnership, perhaps other communities can also work together to overcome the biggest challenge—figuring out how to get the many disparate water users to work together to solve the complex problems of water management.


San Luis Unit Food Producers v. United States, No. 11-16122, 2013 WL 765206 (9th Cir. Mar. 1, 2013) (holding that the Reclamation Act, Central Valley Project Act, and San Luis Act, do not impose a duty on the Bureau of Reclamation to provide farmers with their preferred amount of water from the Central Valley Project).

In 1902, Congress passed the Reclamation Act, providing for the construction and operation of water collection, storage, and distribution projects in several of the Western States, to reclaim arid lands and support agriculture. The nation’s largest reclamation project, the Central Valley Project (“CVP”), managed by the United States Bureau of Reclamation (“Bureau”), provides water to California’s Central Valley. In 1960, Congress passed the San Luis Act, authorizing the construction and operation of the San Luis Unit, an integral part of the CVP. In 1992, Congress passed the Central Valley Project Improvement Act (“CVIPA”), amending the purposes formerly enumerated for the CVP. The CVIPA established that river regulation, improvement of navigation, and flood control were the first priority of the CVP. The CVIPA listed irrigation, domestic uses, fish and wildlife protection, and restoration as a second priority. For several decades, the Bureau delivered enough water to adequately irrigate farmers’ lands in the area. However, when the Bureau began allowing significant amounts of water to flow free for the restoration of fish and wildlife, it significantly decreased the amount of water delivered to irrigation districts. As a result, the Bureau caused a decrease in the amount of irrigation water available to farmers and farming entities in the Central Valley.

A group of farmers (“Farmers”) sued the Bureau, claiming that various statutes, including the Reclamation Act, CVP Act, and San Luis Act, required the Bureau to deliver an amount of water to irrigation contractors consistent with historic use. The District Court for the Eastern District of California granted summary judgment in favor of the Bureau and the Farmers appealed. The United States Court of Appeals for the Ninth Circuit (“Court of Appeals”) granted a de novo review.

The Farmers claimed that the Bureau violated its statutory duties (1) to “operate” the San Luis Unit in a manner that fully utilizes it for irrigation above other purposes, (2) to “exercise” its water rights to San Luis water, and (3) to “recoup Project costs.”

Asserting that the Bureau has a duty to operate the San Luis Unit in a manner fully utilizing the water for irrigation purposes, Farmers cited 43 U.S.C. § 521. Section 521 authorizes the Secretary of the Interior to contract with users to supply water for non-irrigation purposes from a project irrigation system as long as there is no detriment to irrigation purposes. The Farmers alleged that the Bureau’s re-allocation of water to support fish and wildlife was detrimental to the irrigation project and caused their injury. The Court of Appeals found that the Bureau did not contract to provide water for the protection of fish and wildlife, but was required to do so by CVPIA. Thus, the Court of Appeals determined that the Farmers did not identify a contract that caused the harm.

The Farmers also cited the CVP Act’s provision for the sale of electric energy, to allow full utilization of the CVP and accomplish the CVP’s purposes of river regulation, irrigation, and other uses. The Farmers again claimed that the Bureau must use CVP project water for irrigation purposes before other non-irrigation purposes. The Court of Appeals concluded that the Bureau did deliver water to irrigation contractors and that the CVP Act does not require the delivery of any particular amount of water.

The Farmers also relied on the San Luis Act, which states that the “principle purpose” of the San Luis Unit is to provide water for irrigation and specifies necessary water capture, storage, and distribution features of the unit. The Farmers alleged that the statutory language created a mandatory duty to deliver the Farmers’ preferred amount of irrigation water prior to supplying water for fish and wildlife protection efforts. The Court of Appeals determined that the statute did not create a duty to distribute a specific amount of water for irrigation, but merely described the necessary engineering features of the San Luis Unit.

Further, the Farmers claimed that the Reclamation Act directed the Secretary of the Interior to use Bureau funds for the operation and maintenance of reclamation projects. The Farmers proclaimed that the word “operation” meant “utilization of the works as fully practicable,” and that the Bureau must operate projects to the fullest practicable extent for irrigation before supplying water for non-irrigation purposes. The Court of Appeals ultimately determined that the Reclamation Act does not affirmatively require any particular managerial action on the part of the Bureau.

The Farmers also claimed the Bureau had a duty, under the Reclamation Act, to exercise its water rights within the San Luis Unit and to provide water to irrigation districts consistent with the amount historically used. The Reclamation Act does require the Bureau to comply with any state water law restrictions that are consistent with federal law. Under section 1702 of the California Water Code, the State Water Resources Control Board (“Board”) cannot grant a permit holder’s application for a change in the “purpose of use” unless the change will not injure any legal user. The Farmers claimed that the Bureau’s reduction in water collection, to support fish and wildlife protection efforts, changed the “purpose of use” and caused their injury and, thus, was a violation of section 1702. The Court of Appeals found that the plain meaning of section 1702 required the Board to make a “no injury” finding, but that section 1702 is in no way controlling over actions of the Bureau.

The Farmers’ next claimed the Reclamation Act provides that water rights acquired under the act belong to the land irrigated and are measured by beneficial use. The Farmers asserted they were entitled to the amount of water historically put to beneficial use. The Court of Appeals determined that the statement that “the beneficial use of water is the ‘measure’ of a water right,” was too vague to be interpreted as a directive to the Bureau to deliver the Farmer’s preferred amount of irrigation water.

The Farmers’ also cited the San Luis Act, providing that construction of the San Luis unit would not begin until the Secretary of the Interior was able to secure the necessary water rights to satisfy the purposes of the Unit. The Farmers alleged that non-irrigation use or non-use of water compromised the Bureau’s ability to satisfy the purposes of the Unit and, therefore, was impermissible under the San Luis Act. The Court of Appeals, however, found that the statute only imposed a condition on the construction of the San Luis Unit and did not require that the Bureau deliver a certain amount of irrigation water prior to providing for fish and wildlife protection efforts.

Lastly, the Farmers claimed that the Bureau was required to recover the costs associated with the construction, operation, and maintenance of the CVP through the sale of more irrigation water. The Court of appeals disagreed, determining that Congress intended those benefiting from reclamation projects to recover costs and the Secretary of the Interior to determine how to best recoup those costs. Therefore, the Court of Appeals determined that the Farmers could not compel the Bureau to sell more irrigation water in order to recoup costs.

The Court of Appeals affirmed the District Court’s decision to grant summary judgment to the Bureau reasoning that none of the statutes raised by the Farmers imposed a duty on the Bureau to deliver the preferred amount of water to the Farmers’ irrigation contractors.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. This article and the Appendix- Colorado Water Law: A Synopsis of Statutes and Case Law was published in Volume 1, Issue 1, in 1997.

Colorado Water Law: An Historical Overview

INTRODUCTION

Rivers, plains, and mountains make us Coloradans. Residing on one of two sides of this Continent’s backbone, some of us, look to the West to the Great Divide, others to the East. When our hearts follow our eyes, when we think about this magnificent land and our fellow

Coloradans on the other side, we truly gain the power of this rivered place. Thomas Hornsby Ferril called on us-his fellow Coloradans-to remember and to live our origins: strength of mountain stream, hope of prairie stream.

Beneficial use and preservation are two primary public policies which guide western natural resource law; they are the two chambers of our western heart, the two lobes of our brain. Colorado water law establishes the right of water appropriation to serve public and private needs. New uses and changes in existing water rights continue to exist and evolve within the framework of the water law. The preservation interests are addressed primarily by state and federal land use law and environmental regulatory law, such as is evidenced by the acquisition of open space and parks by public entities, as well as federal land reservations for national parks, monuments, wilderness areas, and wildlife preserves.

Western prior appropriation water law is a property rights-based allocation and administration system, which promotes multiple use of a finite resource. The fundamental characteristics of this system guarantee security, assure reliability, and cultivate flexibility. Security resides in the system’s ability to identify and obtain protection for the right of use. Reliability springs from the system’s assurance that the right of use will continue to be recognized and enforced over time. Flexibility emanates from the fact that the right of use can be transferred to another, subject to the requirement that other appropriators not be injured by the change.

Click here for a PDF of the entire article: 1 U. Denv. Water L. Rev. 1 1997-1998.


The Bay Delta Conservation Plan (“BDCP”) has recently dominated California water news, particularly since Secretary of the Interior Ken Salazar and California Governor Jerry Brown announced the Delta tunnel plan, now coined “Brown’s Tunnels.”  However, there is little discussion of what exactly the BDCP is and how it may be seen to fruition.  The media alternately characterizes the proposals as either an excuse to increase the amount of water exported from Northern California, or the best way to restore California’s environment and preserve water supplies for municipal, agricultural, and other consumptive uses.  This inconsistent rhetoric fails to provide information to help the public understand what the BDCP is, how it relates to “Brown’s Tunnels” and why some might be for or against it.

The BDCP and “Brown’s Tunnels”

The BDCP is a water user-driven effort initiated in 2005 with support from the California legislature, partly as a reaction to the failure of prior efforts to resolve water supply/ecosystem conflicts in California’s Sacramento-San Joaquin Bay Delta (“Delta”).  In California, the federal Central Valley Project and the California State Water Project (collectively “Projects”) divert and store water in the relatively wet northern part of the State and then release that water from storage and pump it through the Delta to the drier, more populous portions of the State.  The transportation of water through the Delta—and the resulting changes in flow, water quality, and other environmental parameters—is considered a key cause of the decline of the Delta’s environmental health.  This decline continues to occur despite the reduction of water supply for the Projects and their contractors from the operating permit’s Reasonable and Prudent Alternatives (“RPA”) to the Biological Opinions written by the Fish and Wildlife Services and National Marine Fisheries Service. Further restrictions are imposed by the State Water Resources Control Board’s (“Water Board”) flow objectives. The contractors are largely public agencies that provide water to urban and agricultural customers through the State of California whose contracts provide shortage provisions allowing for the reduction of water to meet state and federal environmental laws and permits, such as the RPAs, flow objectives and other operational restrictions.

In the face of this turmoil, the BDCP’s purpose is to provide the Projects with a comprehensive approach to address the Delta’s challenges while gaining a streamlined fifty-year take permit with “no surprises” assurances, at an estimated cost of $14 billion to comply with state and federal endangered species laws. This cost will continue to change, especially once the BDCP team releases its Chapter 8 documents the week of April 22, 2013.

The BDCP proposes to incorporate large-scale ecosystem restoration in the Sacramento-San Joaquin Delta rather than the current and former species-by-species approach using the best available science and an adaptive management and monitoring program. At the same time, recognizing that water diversions also serve public interests, the BDCP also seeks to improve water supply reliability.  At present, nine water supply and conveyance alternatives are being studied, the most controversial of which is the preferred alternative mentioned by Brown during a press conference (hence the so-called “Brown’s Tunnels”).

This “plumbing” proposal relies on a conveyance system that would circumvent water around the Delta using two thirty-five-mile-long tunnels. This proposed conveyance system is an effort to reduce the current reversal of natural flows in the Delta and increase the Projects’ flexibility.  This would in turn allow the BDCP to operate from one facility if the other must be shut down in the event of flooding, seismic activity, or increased instream requirements in the Delta.  The BDCP would continue to rely on the South Delta Pumps during much of the year, so flow reversal would only be reduced when the new pumps are operated, unless the new diversions are also large enough to cause reversal of flows and saltwater intrusion farther up the Sacramento River.  The fundamental idea of the BDCP, including the “tunnels,” is to achieve “co-equal goals” of ecosystem protection and water supply reliability.

BDCP Legal Requirements

Partly in response to the Delta environmental and water crisis, in 2009 the California legislature enacted a historic Water Reform Legislative Package, which includes the Delta Reform Act of 2009 (“Delta Reform Act”).  The Delta Reform Act lays out the legal requirements the BDCP must meet.  If successfully completed, the BDCP will be adopted as part of the Delta Stewardship Council’s (“Council”) Delta Plan.

The BDCP is a joint state and federal project designed to meet the requirements of both state and federal law. It aspires to the coexistence of agricultural and economic interests with environmental requirements (the “coequal goals”) and claims that the proposed tunnels, in conjunction with critical habitat restoration, will help recover listed species.  Specifically, the BDCP is intended to be both a Natural Community Conservation Plan (“NCCP”) and Habitat Community Plan (“HCP”) pursuant to the state and federal Endangered Species Acts.  The lead agencies are the California Department of Fish and Game, the Department of Water Resources, the Fish and Wildlife Service, and the National Marine Fisheries Service.  These agencies are working together with a consortium of other responsible agencies and the BDCP proponents.

Pursuant to California’s Natural Community Conservation Plan Act, a NCCP is designed to protect multiple species comprehensively and restore their habitats; in return, signatories obtain exemption from liability for “take” of listed species. Participants who adhere to an approved plan are to some degree protected from future land or monetary requirements caused by subsequent species listings, often termed “Babbit’s no surprise policy,” which is viewed as an attractive opportunity for the water contractors. The NCCP lead agency is the state Department of Fish and Game.  The NCCP must be consistent with the California Environmental Quality Act (“CEQA”), and pursuant to CEQA an Environmental Impact Report (“EIR”) will be prepared.  This EIR must include feasible mitigation measures and alternatives related to the biological impacts on covered species and their habitat, including: “flow criteria, conveyance alternatives, climate change effects, effects on migratory fish and aquatic resources, potential effects on Sacramento and San Joaquin River flood management, natural disaster recovery and potential effects on Delta water quality.”

The federal equivalent to the NCCP is a Habitat Conservation Plan (“HCP”).The HCP lead agencies are the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“NMFS”).  The National Environmental Policy Act (“NEPA”) requires an Environmental Impact Statement (“EIS”).  These agencies will work with the BDCP team to prepare a joint EIS/EIR. If all goes well, that process will result in an approved NCCP/HCP.

The Tunnels’ Potential Effect on Water Supply and Species Protection

It is difficult to determine the potential effects of “Brown’s Tunnels” on water supply and species protection until certain details are determined, including the number of intakes, the diversion capacity of the intakes, the conveyance capacity of the “tunnels,” and approved operating criteria.  But by law, these details cannot be addressed until after the environmental review (including the EIS/EIR) is complete.  Options being considered for study in the EIS/EIR are the intakes (which have been reduced from an initial five to three) and the capacity (which has been reduced from 15,000 cubic feet per second (“cfs”) to 9,000 cfs).  By some calculations, a 9,000 cfs tunnel could divert over 6.5 million acre-feet per year. However, that figure is misleading, because water projects rarely divert at full capacity; instead, intake and conveyance facilities are designed so projects can adjust to permit requirements and also divert during wet periods and store that water for release during dry periods.

The Projects’ current average annual yield is 4.7 million acre-feet, but not all of this water is “Delta” water.  Moreover, only a portion of the water is delivered through the Delta, so only a portion of this water would be affected by the BDCP.  The rivers flowing into the Delta include the Sacramento, San Joaquin, Mokelumne, Cosumnes, and Calaveras.  These rivers and their tributaries carry about half of the State’s total annual runoff.  The south of Delta projects are supposed to divert a portion of this water to Exchange Contractors, Kern County, Santa Clara Valley, Metropolitan Water District and San Luis Contractors, which also includes Westlands Water District.

Project contractors do not currently receive all of the water promised to them during dry years.  For example, SWP deliveries have ranged from 1.4 million acre-feet in dry years to over 4.0 million acre-feet in wet years. But even in a year like 2011 where there were record exports totaling 4,545,937 acre-feet, south of Delta diversions still only received 80% of their contracted amount; Westlands received 1,529,200 acre-feet/ 1,911,500 acre-feet and Metropolitan 920,000 acre-feet/ 1,150,000 acre-feet. This inconsistency results from two factors.  The first factor is drought—California has seen a string of multiple dry years, as it often does.  The second factor is restrictions on water diversions designed to protect aquatic and riparian species and ecosystems pursuant to ESA permits.

One of the purposes of the BDCP, including “Brown’s Tunnels,” is to address this second factor.  To the extent that deliveries are currently restricted for environmental protection, those deliveries can be increased once environmental concerns are addressed.  The media often mischaracterizes the BDCP on this issue; the BDCP does not promise the Projects new water rights and the Tunnels are not intended to increase diversion beyond the Projects’ existing rights.  Instead, the idea is that the Projects will receive more of the water already promised to them under their existing rights, and they in turn will be able to deliver this water to their contractors, who deliver the water to municipal and agricultural customers throughout the State.

Habitat restoration is another Project feature under scrutiny, as there are questions about what the historic Delta looked like and how to change the landscape to recapture that historic state. What is clear is that the degradation of endangered species has resulted from loss of critical habitat.  Habitat loss has resulted from multiple stressors, including but not limited to: water quality, flow, predation, habitat barriers, entrainment, hydrologic changes, hatcheries, climate change and change in nutrient loads.  Habitat restoration requires addressing these stressors collectively and providing space for species to recover. Another problem is that science does not provide guarantees that this restoration will contribute to species growth.  A recent study by the National Research Council found efforts to eliminate any one stressor are unlikely to reverse the decline in species population.  Of course, this study does not mean that efforts to eliminate these stressors will fail or should not be attempted, but the uncertainty is a concern for those who would provide the several billion dollars of funding for the BDCP, including the public and Project contractors.

Funding

Water users’ and contractors’ willingness to pay for the tunnels depends greatly on the eventual capacity of the conveyance system.  The proposed conveyance system criteria, including the number of intakes, how many cubic feet per second the facility would divert and what kind of decision tree would be used to incorporate the best available science, will be announced later this year. Once the Implementation Costs and Funding Sources chapter is released, it will contain the costs related to primary components of the BDCP as well as potential funding sources. The cost of the BDCP is currently estimated at $14 billion.  BDCP funding for the habitat component will largely come from the $11 billion water bond (which was scheduled to be on the 2012 ballot but was delayed until 2013-2014) as well as other public funds pending the BDCP’s inclusion in the Delta Stewardship Council’s Delta Plan.

However, the funding related to the “plumbing” must come directly from Project contractors; their willingness to pay may depend in large part on the ultimate size and operational details of the new “Tunnels” conveyance system because these details will determine the scope of water supply benefits from the BDCP.  In this regard, Project contractors are typically public agencies that deliver water for municipal and agricultural purposes.  These agencies must justify expenditures to their constituents.

The BDCP’s Uncertain Future

Although the BDCP is a legally recognized process and constituents have worked tirelessly through the planning stages, it is an increasingly complex, expensive, and controversial process.  Many key components must still be developed before success might be achieved.

First, the BDCP will have to incorporate the new flow standards the Water Board will set within the next few years.  The Board has been mandated to set new flow standards as a result of increased litigation over protecting Delta fish species.  These new standards may impose drastically different requirements, which will have a direct impact on the amount of water the Projects can divert and the options for managing Delta water resources.

Second, several specifics of the tunnels have yet to be legally proposed, including the capacity and design of the pumps and conveyance systems, where they would be located, and how they would be built and operated.  There are no guarantees that the current proposals will remain viable, and the willingness of Project contractors and the State to help fund the BDCP depends on the final numbers.  The water bond delay increases this uncertainty.

Finally, there is disagreement about the balance of costs and benefits, economic and otherwise, of implementing (or failing to implement) the BDCP. The BDCP recognizes that agricultural and economic interests may coexist with environmental requirements so long as California can develop the infrastructure necessary to provide key habitat restoration.  As this process develops, California continues to devote its best efforts to provide a workable solution for ecosystem and water supply reliability concerns.

For more information, visit the Bay Delta Conservation Plan website at www.baydeltaconservationplan.com.

Tori Sundheim will finish her J.D. this spring at the University of the Pacific McGeorge School of Law. She is also a legal intern at the Delta Stewardship Council. This article does not represent the views of Delta Stewardship Council or the State of California.


Sources:

Administrative Draft BDCP, EIR-EIS Chapter 3 – Description of Alternatives 2-29-12, (Feb. 29, 2013, 10:00 AM), http://baydeltaconservationplan.com/Library/DocumentsLandingPage/EIREISDocuments.aspx.

Anne Parker, Natural Community Conservation Planning: California’s Emerging Ecosystem Management Alternative, 6 U. Balt. J. Envtl. L. 107, 108 (1997).

Brian Thomas, BDCP Presentation Metropolitan Water District Oct. 3, 2012 (Oct. 12, 2012, 5:00 PM), http://www.mwdoc.com/filesgallery/01b_BDCP_Presentation_MWDOC_10_03_12_v2.pdf.

Cal. Water Code §§ 85054, 85320(e), 85302(b)(2)(A)-(G) (West).

Fish & G. Code, § 2820(e) (West).

U.S.C. §§ 1531 et seq. (West).

CALFED Bay-Delta Program Ecosystem Restoration Program, Minimizing impact of Mercury from BDCP Restoration Activities (Oct. 14 2012, 9:00 PM), https://nrm.dfg.ca.gov.

Doug Obegi, Record Bay-Delta Water Exports = 80% of Maximum Contract Allocations (Oct. 14, 2012, 6:14 PM), http://switchboard.nrdc.org/blogs/dobegi/record_bay-delta_water_exports.html.

Governor Brown And Obama Administration Outline Path Forward For Bay Delta Conservation Plan: California, Interior, NOAA Reaffirm Commitment To Comprehensive Solution To California’s Water Supplies And A Healthy Ecosystem (July 25, 2012), http://baydeltaconservationplan.com/news/news/12-07-25/Governor_Brown_and_Obama_Administration_Outline_Path_Forward_for_BDCP.aspx.

Nancy Vogel, No Guaranteed Delta Diversions (Oct. 14, 2012, 5:29 PM), http://baydeltaconservationplan.com/blog/blog/12-09-26/No_Guaranteed_Delta_Diversions.aspx.

University of the Pacific Eberhardt School of Business, Benefit- Cost Analysis of Delta Water Conveyance Tunnels (July 12, 2012), http://forecast.pacific.edu/articles/BenefitCostDeltaTunnel_Web.pdf.  


Cent. Basin Mun. Water Dist. v. Water Replenishment Dist. of S. Cal., 150 Cal. Rptr. 3d 354 (2012) (certified for partial publication) (holding that a water replenishment district did not have to comply with the California Environmental Quality Act prior to declaring a water emergency because it did not have any environmental impact and declaration of a water emergency was a ministerial act for which the Water Replenishment District had no authority to modify existing physical solutions imposed by prior water rights adjudications).

The Water Replenishment District of Southern California (“WRD”) declared a “water emergency” in the Central Basin, a groundwater basin within Los Angeles County, on November 19, 2010.  Under the terms of a judgment (“the Judgment”) from the Superior Court of Los Angeles County dating back to 1991, WRD may declare a water emergency when the basin resources “risk degradation.”  A water emergency declaration enlarges the portion of water that a pumper may carry over to another year, thereby preserving a pumper’s right to water longer than usual.  Therefore, a pumper can extract a greater amount of water than his annual allotment during a water emergency because of an extended overextraction period.  The Judgment was an equitable decree aimed at alleviating overdrafts and depletion of water resources in a given area consistent with California’s Constitutional mandate to prevent waste.  However, a declared water emergency is limited to a one-year duration.

The Central Basin Municipal Water District (“CBMWD”) challenged the WRD’s declared water emergency on the ground that it did not comply with the California Environmental Quality Act (“CEQA”).  CEQA is a broad environmental law, mirroring many provisions of the National Environmental Policy Act, which applies to most public agency decisions to approve projects with potential adverse effects on the environment.  CBMWD argued that WRD “ignored the significant environmental impacts” associated with declaring a water emergency.  CBMWD argued that WRD should have considered effects of increased short-term holding and long-term pumping by water users which occur as a result of a water emergency declaration.  CBMWD also argued that WRD did not contemplate the effects of delayed replacement of overextracted groundwater because a water emergency increased pumpers’ carry over rights from one to five-years.

WRD demurred to CBMWD’s petition, and the Superior Court of Los Angeles County (“Superior Court”) sustained WRD’s demurrer.  The Superior Court found in favor of WRD because the Judgment explicitly authorized WRD to declare the water emergency.  Although WRD was a public agency usually subject to CEQA, WRD was acting as an agent of the court in implementing the terms of the Judgment.  The Superior Court reasoned that groundwater usage authorized by the governing Judgment is exempt from CEQA because the Judgment approved the Watermaster’s authority to resolve groundwater usage issues in the Central Basin.  CBMWD appealed to the Second District, Division 8, California Court of Appeal (“Appeals Court”).

The Appeals Court held that CEQA was inapplicable in a water emergency declaration.  It explained that CEQA distinguished between ministerial and discretionary projects.  CEQA applies only to discretionary projects, for which the agency must prepare an environmental impact report (“EIR”).  The Appeals Court further explained that ministerial projects are ones in which WRD may not shape the process to address environmental concerns.  The Appeals Court specifically held that the declaration of a water emergency has no environmental impact and therefore is not a project within the definition of CEQA.  The Appeals Court also held that WRD had no discretion to alter the terms of the Judgment even if an EIR was prepared.  Therefore, even if WRD considered the environmental effects of declaring a water emergency, an EIR would have no effect because WRD simply had no discretion to modify carry over rights or delayed replenishment.

The Appeals Court further held that even if CEQA was applicable, the Judgment’s physical solution trumped CEQA.  The Appeals Court explained that where an existing judgment or decree implementing a Constitutional mandate is in place establishing a physical solution, the agency cannot act in contravention of the physical solution.  Therefore, WRD had no discretionary authority and only the court had the power to act.

Accordingly, the Appeals Court affirmed the trial court’s ruling and allowed WRD’s declared water emergency to stand.


Tri-State Generation & Transmission Ass’n v. D’Antonio, 289 P.3d 1232 (N.M. 2012) (holding the New Mexico State Engineer’s adoption, by legislative direction, of new Active Water Management regulations for the administration of water rights in priority constitutional against separation of powers, due process, and vagueness claims).

In 2003, the New Mexico Legislature (“Legislature”) enacted N.M. Stat. Ann § 72-2-9.1, directing the New Mexico Office of the State Engineer (“State Engineer”) to adopt rules to administer water allocations efficiently and in priority.  In 2004, the State Engineer responded by developing the Active Water Resource Management regulations (“AWRM”), allowing the State Engineer to identify water districts in need of management and appoint water masters to those districts.  Under AWRM, the masters evaluate their respective district’s supply and manage the allocation of that supply according to users’ priority dates.

AWRM establishes “administrable water rights” to impound, store, or release water according to the elements determined by a court or the State Engineer.  When the task falls to the latter, the Engineer determines the users’ priority date using a hierarchy of (i) final adjudicatory decrees; (ii) adjudicatory subfile orders; (iii) offer of judgments; (iv) hydrographic surveys; (v) issued licenses; (vi) issued permits; and (vii) historic, beneficial uses.  The State Engineer publishes the priority dates; users may appeal the determinations.  Tri-State Generation and Transmission Association (“Tri-State”), an electric power cooperative with water rights, filed suit challenging AWRM on separation of powers, due process, and vagueness grounds.

The District Court of Socorro County (“district court”) found § 72-2-9.1 violated Article III, Section 1 of the New Mexico Constitution because the State Engineer’s authority to determine priority dates originated from the century-old § 72-2-9 granting weight to licenses and adjudications only.  Therefore, the district court reasoned, the State Engineer could only consider evidence of adjudications or licensing ((i), (ii), (iii), and (v) above) when determining administrable rights.  The district court found the remaining provisions of AWRM unconstitutionally beyond the scope of the State Engineer’s statutory authority, in violation of due process, and contrary to constitutional guarantees of inter se adjudication of water rights.

The New Mexico Court of Appeals (“Court of Appeals”) affirmed in part.  The Court of Appeals held that because § 72-2-9.1 granted no new authority to the State Engineer to adopt AWRM, the regulations unconstitutionally exceeded the State Engineer’s authority.  The Court of Appeals, however, reversed the district court’s due process ruling as speculative.  The State Engineer petitioned and Tri-State cross-petitioned to the New Mexico Supreme Court (“Court”).  The Court considered four issues on appeal.

First, the Court considered the State Engineer’s authority to implement AWRM.  Applying two canons of statutory construction, the Court held the Legislature intended to expand the State Engineer’s authority by enacting § 72-2-9.1.  The Court reasoned that enacting legislation entitled, “An Act Relating to Water Providing Authority for State Engineer…” indicates a grant of legislative authority by its plain meaning.  Further, the statute’s placement within the statutory framework did not limit this intent because the Legislature only indicated that a new section be drafted, not that it be placed in a specific sub-section.

Second, the Court looked at Tri-State’s claim that AWRM violated separation of powers because only inter se adjudication could determine water rights in New Mexico.  The Court distinguished adjudication from administration, holding the State Engineer constitutionally permitted to administer the water supply.  The Court noted that while the State Engineer lacks the authority to adjudicate water rights, nothing in the New Mexico Constitution requires adjudication.  Instead, the New Mexico Constitution offers broad terms that the waters of the State “be subject to appropriation for beneficial use, in accordance with the laws of this state.”  The Legislature, the Court held, constitutionally delegated the task of administering water to the State Engineer.

Third, the Court addressed Tri-State’s claim that AWRM violated procedural due process requirements.  The Court held there was no violation for three reasons.  First, to prevail, Tri-State needed to establish deprivation of liberty or property without being afforded adequate procedural protections.  According to the Court, because water rights establish a right to use water, not own water, regulation is an exercise of police power, not deprivation.  Second, regulation by the State Engineer, where permitted, upholds the system of prior appropriation.  Because AWRM establishes a system for the administration of priority dates, the Court held, it upholds prior appropriation; inter se adjudication is not required.  Finally, a claim is ripe for review only when a party presents an actual controversy stemming from non-speculative harm.  Tri-State asserted a claim that a lack of water would destroy their property.  The Court held Tri-State’s claim unripe for review because the State Engineer had yet to make a priority determination as to Tri-State’s rights and Tri-State had yet to appeal any forthcoming determination.

Finally, the Court considered Tri-State’s claim that AWRM was impermissibly vague.  The Court explained that a statute violates due process when it is so vague that people of ordinary intelligence guess at its meaning and differ as to its application.  The Court held § 72-2-9.1 was not impermissibly vague because it provided an express hierarchy with examples and gave sufficient notice to those potentially affected.

Accordingly, the Court reversed the Court of Appeals’ decision regarding the separation of powers claim; affirmed, in part, the Court of Appeal’s speculative due process decision; and held the statute not impermissibly vague.

 


United States v. Alpine Land & Reservoir Co., 2012 WL 4442804 (D. Nev. 2012) (holding the state engineer did not err in: (i) finding special administration rules under the Alpine Decree require a change in point of diversion from one segment to another on the Carson River must result in a change in priority date; (ii) finding a constructive point of diversion, rather than a physical point of diversion, for the purposes of retaining priority would violate Nevada water law; and (iii) granting change applications, as filed, would harm existing rights).

The United States Fish and Wildlife Service (“FWS”) filed seven applications with the Nevada State Engineer to change the place of use of its water rights.  Each of the water rights was from the Carson River and listed the point of diversion as Buckland Ditch. Buckland Ditch is a point in Segment 7(e) of the Carson River as designated by the Alpine Decree.  The State Engineer denied the applications, reasoning the applications, as filed, would harm existing rights holders.  The State Engineer found that the applications would harm existing rights holders because the actual point of diversion would have been the Carson Dam, a point in Segment 8 downstream of the Buckland Ditch.  FWS appealed the State Engineer’s ruling.

The United States District Court for the District of Nevada (“district court”) created the Alpine Decree in a previous ruling as a means of administering Carson River water rights.  In the summer, some segments of the river are dry, while downstream segments have sufficient flows due to underground drainage or return flows from irrigation.  During these conditions, it is physically futile for upstream junior appropriators to satisfy downstream senior appropriators’ calls because the river is often dry.  Historically, farmers in the Carson River region administered the river in segments through mutual cooperation and practical experience with the physical limitations.  The Alpine Decree formally divided the Carson River into eight segments and required autonomous administration of each segment.

FWS appealed, claiming the State Engineer erred in: (1) interpreting the Alpine Decree to require a change in priority when the rights point of diversion is changed to another segment; (2) finding a constructive point of diversion, rather than a physical point of diversion, for the purposes of retaining priority would violate Nevada water law; (3) applying the wrong legal standard; (4) relying on an extra-record comment when interpreting the Alpine Decree; and (5) denying the applications rather than granting them with conditions.

First, the district court found the State Engineer correctly interpreted the Alpine Decree to require a change in priority date when a change in point of diversion application contemplated moving water rights from one segment to another on the Carson River.  Nevada water law typically permits a rights holder to change the point of diversion without losing priority of right.  However, the Alpine Decree modifies this right and limits it to changes within the original segment on the Carson River.  The district court reasoned that the Alpine Decree was consistent with Nevada water law, provided the new point of diversion is in the same segment as the original water right.  Additionally, the district court reasoned that to continue recognizing the date of priority for such a change would be contrary to the principle of reducing waste, one the Alpine Decree intended to alleviate.

Next, the district court held that establishing a constructive point of diversion, rather than a physical point of diversion, for the purposes of retaining priority would violate Nevada water law.  FWS admitted it intended to divert proposed transfer water at Carson Dam, not Buckland Ditch.  However, FWS argued that Buckland Ditch was a valid point of diversion because it served as the constructive point of diversion.  Though Buckland Ditch was not the physical point of diversion, it was the point of diversion for administrative and accounting purposes.  The district court held that FWS’s cited precedent did not address the issue of a constructive point of diversion, was not relevant in context for this matter, and was limited to appropriations without diversions.

Next, the district court ruled the State Engineer did not err in finding the applications, as filed, would harm existing water rights holders. FWS proposed to divert and transfer water within a new segment of the river.  The proposed transferred water rights would conflict with existing water rights in multiple sections of the river.  Therefore, the district court found that the State Engineer did not err in finding the applications would harm existing rights holders.

Next, the FWS argued the State Engineer relied on an extra-record comment when interpreting the Alpine Decree.  During a conference, the Federal Water Master made an extra-record comment to the State Engineer about the historical practice of requiring a change of date of priority.  The district court found the comment irrelevant because interpretation of the Alpine Decree was a matter of law concerning loss of priority when a water user changes the point of diversion from one segment to another.

Finally, the district court rejected FWS’s argument the State Engineer erred in denying the applications, rather than granting them with conditions, because the applications did not provide an accurate location of diversion.  Additionally, FWS did not demonstrate any conditions that would have protected the public from adverse impacts of the applications.

Accordingly, the district court denied FWS’s petition challenging the State Engineer’s ruling.


Nat’l Ski Areas Ass’n, Inc.  v. U. S. Forest Serv., 2012 WL 6618263 (D. Colo. Dec. 19, 2012) (holding the United States Forest Service’s 2012 Directive is vacated because it violated the Administrative Procedure Act, the Regulatory Flexibility Act, and the National Forest Management Act; and plaintiffs are entitled to remedial and injunctive relief because of these violations).

National Ski Areas Association, Inc. (“Association”) sought the issuance of a nationwide injunction from the United States District Court for the District of  Colorado (“court”) to set aside the March 6, 2012, Directive (the “2012 Directive”) issued by the United States Forest Service (“USFS”). The 2012 Directive changed the nature and treatment of ski area water rights by requiring permit holders to transfer their water rights to the United States if permit reauthorization did not occur.  Association claimed the 2012 Directive was in excess of the Service’s statutory authority, compelled uncompensated taking of private property, violated of the Regulatory Flexibility Act (“RFA”), and that USFS did not provide public notice or opportunity to comment as required by the Administrative Procedure Act (“APA”) and the National Forest Management Act (“NFMA”)

USFS first argued the harmless error doctrine prevented Association from having standing.  The Service contended Association did not suffer injury because the failure to follow the APA requirements amounted only to a harmless error, and the input opportunities presented went beyond the APA requirements.  Additionally, the Service claimed Association could not demonstrate that its procedural injury was not redressable. The court, however, did not find these arguments compelling.  The court found the intent of the harmless error doctrine was limited to insignificant errors.  Therefore, complex issues or instances of disregard for important rulemaking procedures were outside the doctrine’s scope.  Also, the court concluded that the normal redressability requirement does not apply in cases involving enforcement of procedural rights under the APA and NFMA.  In short, the court found that Association satisfied the standing requirements in the case.

The court next examined Association’s claim under the APA.  USFS argued that the rule was merely an interpretive rule because of its nature and because it was published in its Manual.  The court concluded the 2012 Directive was a legislative rule as it carried the force of the law and imposed new duties and obligations on Association.  It further explained that publishing a rule in a manual does not make it an interpretive rule.  Because the 2012 Directive was determined to be a legislative rule, the court explained that the APA required public notice and opportunity for comments from interested parties.  The record demonstrated that the Service failed to follow this procedure when promulgating the rule.  Therefore, the court found Association succeeded on its APA claim.  Then the court examined the RFA claim. Under the RFA, agencies must examine the economic impact of a rule upon small businesses and provide an opportunity for such entities to participate in the rule-making process.  The court found that several members of Association fit the definition of a small business—entities that have less than $7 million in annual receipts averaged over three years.  The Service admitted that it did not assess the economic impacts on these entities.  Accordingly, the court found the USFS did not comply with the RFA.

Next, the court considered Association’s final claim under NFMA.  NFMA requires the Service to establish procedures, which provide the public adequate notice and opportunity to comment upon the formulation of rules and standards applicable to Service programs.  USFS argued the 2012 Directive was exempt from the mandated procedures because USFS regulations exempt materials issued in the Forest Service Handbook from NFMA’s notice-and-comment requirements. The court rejected this argument stating that an agency cannot use its own regulations to avoid a statutorily mandated process such as notice and comment procedures.  Therefore, the court found that the 2012 Directive violated NFMA.

The court then examined the question of what form of relief Association was entitled to.  The court implemented a two-part test to determine whether it should vacate the 2012 Directive, which examined i) the seriousness of the Service’s deficiencies and ii) the potential for disruptive consequences.  The court had little difficulty concluding the USFS’s APA violation rose to the level of serious deficiencies.  Similarly, the court found that the disruptive consequences of vacating the 2012 Directive would be minimal as the Service admitted it had operated for years without a national directive regarding ski area water rights.  Consequently, the court granted vacatur of the 2012 Directive.

Finally, Association sought to enjoin enforcement of the 2011 and 2012 Directives that were included in existing Ski Area Permits.  In determining whether to grant injunctive relief, the court applied a four factor test considering (i) the injury suffered, (ii) the remedies available at law, (iii) the balance of hardships, and (iv) the public interest involved.  The court found that all four factors favored Association.  The court found there was an irreparable injury with an inadequate remedy at law; the balance of hardships to both parties favored an injunction; and public policy favored holding agencies responsible for not following procedures and the injuries that resulted from such actions.  Accordingly, the court held that all of the factors support granting injunctive relief.  In sum, the court vacated the 2012 Directive because it violated the APA, RFA, and NFMA and found that Association was entitled to the narrow injunctive relief requested.