Los Angeles Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S.  Ct.  710 (2013) (holding the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway is not a discharge of a pollutant under the Clean Water Act).

The problem surrounds a Los Angeles storm sewer system.  The Los Angeles County Flood Control District (“Los Angeles”) operates a drainage system that collects, transports, and discharges storm water which federal regulation 40 Code Fed. Reg. § 122.6(b)(8) defines storm water as storm water runoff, snowmelt runoff, and surface runoff and drainage.  Due to the highly polluted nature of the storm water, the Clean Water Act (“CWA”) required the drainage systems’ operators to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit before discharging storm water into navigable waters.  Los Angeles obtained a NPDES permit in 1990 and renewed the same permit several times.

Respondents, Natural Resources Defense Council (“NRDC”) and Santa Monica Baykeeper filed a citizen suit in District Court alleging Los Angeles violated water-quality measurement requirements under its NPDES permit.  Even though water in the storm sewer system showed levels of pollutant discharges exceeding statutory limits, the District Court for the Central District of California granted summary judgment in favor of Los Angeles.  The district court found many entities contributed permitted discharges to the water, not only Los Angeles.  The Ninth Circuit reversed in part, holding a discharge of pollutants occurred under the CWA when polluted water left the concrete channel system in Los Angeles and entered downstream waterways lacking concrete linings.  Because Los Angeles controls the concrete portions of the system, the Court of Appeals held it responsible for discharges leaving its system into those unprotected from concrete lining.

The US Supreme Court (“Court”) granted certiorari and considered only one question: under the CWA, does the flow of storm water out of a concrete channel within a river qualify as the discharge of a pollutant? The Court reversed the Ninth Circuit by following the precedent set by South Fla. Water Mgmt Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004) wherein the Court held pumping polluted water form one part of a water body into another part of the same body is not a discharge of pollutants under the CWA.

The language of CWA defines “discharge of a pollutant” as the addition of any pollutant to navigable waters from any point source.  The Court pointed to a common understanding of the word “add” and explained that pollutants are not “added” when water is merely transferred between different portions of that water body.  If an addition were to be a discharge, then the water would have to be transferred between two meaningfully distinct water bodies.

Ultimately, the Court noted that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a discharge of pollutants under the CWA.  Therefore, the Court reversed the Ninth Circuit and remanded the case for further proceedings.

 


UNIVERSITY OF DENVER WATER LAW REVIEW ANNUAL SYMPOSIUM 2013: ADDRESSING SUPPLY AND DEMAND IMBALANCES IN THE COLORADO RIVER BASIN

Denver, Colorado   April 12, 2013

Climate Change’s Effect on Supply and Demand in the Upper Basin

As part of their annual symposium, the University of Denver Water Law Review hosted a number of presenters focused on the imbalances in supply and demand in the Colorado River Basin.  Brad Udall spoke on the role of climate change in affecting supply and demand in the Colorado River Basin.  Brad Udall is the Executive Director of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado School of Law.  He was the lead author of the Water Sector chapter of the Global Climate Change Impacts in the United States Report and the Western Water Assessment Climate Change in Colorado Report.

Udall began his keynote address by outlining the basics of the water cycle and the role of climate change in the water cycle.  Udall explained the water cycle is the mechanism the earth uses to move heat from hot areas to cooler areas.  A warmer climate leads to more water vapor in the atmosphere.  The warmer climate generally translates to more evaporation and precipitation on a global basis, but regional imbalances still occur.  Udall explained, as the climate warms, wet places will become wetter, and dry places will become drier.

Next, Udall spoke on the impact of Hadley cells.  Hadley cells develop when evaporation at the equator rises into the atmosphere and moves toward the poles.  In the subtropics, the water evaporation cools and sinks creating a return flow back towards the equator.  Hadley cells fuel the growth of the world’s major deserts around the subtropical latitudes at 30 degrees north and south of the equator.  Udall believes Hadley cells will proliferate because of climate change and, as a result, the major deserts will continue to grow in size.

Udall then explored climate change’s impact on the supply of the Colorado River.  Udall focused on the recently completed Colorado River Basin Supply and Demand Study (“Basin Study”), which projected possible future flows at Lee’s Ferry.  The models in the Basin Study took some aspects of climate change into consideration.  In seventy-five percent of the fifty-year models in the Basin Study, the projected flows at Lee’s Ferry declined.  The median result of the models projected Lee’s Ferry flows would drop nine percent by 2060, with climate change as one of the contributing factors.

Udall also addressed allocation, overuse, and reservoir problems.  According to models he presented, on average by 2060 there would be a four percent annual increase in Colorado River Basin demand due to climate change.  These models did not include the increase in energy demand as a result of population growth in the Basin.  Lake Mead, which provides water to the Lower Basin, currently has a net deficit of 1.4 million acre-feet per year.  Currently, the Lower Basin covers this deficit with unused Upper Basin flows.  The Lower Basin will need to address this current deficit as the demand in the Upper Basin increases.  As demand in the Upper Basin increases, there will likely be calls on the Lee’s Ferry and shortages.

Finally, Udall discussed the level of uncertainty involved in science and climate change policy.  Udall contended a lack of certainty does not provide grounds for not taking action.  Scientists can only calibrate global climate models imprecisely because the time horizon on these models is usually 100 years into the future.  Udall emphasized that possible futures exist outside the models and there is no rational way to rank the myriad of models in use; however, Udall still believes in taking action to combat climate change.  Udall also stressed the high level of uncertainty involved when scientists reduce a global climate model to a specific region.  Ultimately, Udall wants to better integrate the efforts of scientists producing the models with the decision-makers using them because the models, even though imprecise, provide a good starting point for people active in the climate change forum.


Securing the Moffat Supply System

UNIVERSITY OF DENVER WATER LAW REVIEW ANNUAL SYMPOSIUM 2013: ADDRESSING SUPPLY & DEMAND IMBALANCES IN THE COLORADO RIVER BASIN

Denver, Colorado       April 12, 2012

Securing the Moffat Supply System: Weighing the Costs and Benefits of the Gross Reservoir Expansion, and Project Alternatives

Becky Mitchell of the Colorado Water Conservation Board moderated a panel discussion on Securing the Moffat Supply System: Weighing the Costs and Benefits of the Gross Reservoir Expansion, and Project Alternatives.  Panelists shared Western Slope and Front Range perspectives on Denver Water’s Moffat Collection System Project’s Expansion of the Gross Reservoir.  The panel consisted of Charles Howe a Professor Emeritus in Economics at the University of Colorado; Barbara Green of Sullivan, Green, and Seavy, LLC; Amelia Whiting of Trout Unlimited; and Travis Bray of Denver Water.

The existing Moffat supply system diverts water from the Fraser River through the Moffat Tunnel to South Boulder Creek.  South Boulder Creek flows into the Gross Reservoir.  The Gross Reservoir dam releases water into the South Boulder Creek.  The South Boulder Diversion Canal diverts water from the South Boulder Creek to the Ralston Reservoir.  The Ralston Reservoir provides water to Denver Water’s Moffat Treatment Plant.  Denver Water estimates an 18,000 acre-feet shortage of water in the coming decades.  To meet this demand, Denver Water proposed expanding the Gross Reservoir to hold an additional 76,000 acre-feet of water.  This project would increase the dam’s height from 340 feet to 465 feet.  The Moffat System would not divert the additional water in dry years.

Charles Howe a Professor Emeritus in Economics at the University of Colorado presented The Economics of High Volume Interbasin Water Transfers.  Professor Howe presented the history of large interbasin transfers in Colorado.  He explained secondary economic and social impacts of interbasin transfers are important and large transfers out of depressed regions can result in regional economic and social loses.  He emphasized large transfers out of depressed regions require compensation and, in light of these facts, legislation should not prohibit interbasin transfers.

Barbara Green of Sullivan, Green, and Seavy, LLC presented Colorado River Cooperative Agreement and the Gross Reservoir Expansion – Western Slope Non-Opposition to Gross Reservoir Expansion.  Barbara Green began by providing background information on the historical tensions between the water rights interests on the Western Slope and the Front Range.  She then outlined the evolution of Article IV Paragraph J of the Colorado River Cooperative Agreement.  Article IV Paragraph J prevents West Slope Signatories, other than Grand County, from objecting to any permits for the Moffat Collection System Project.  Grand County is a NEPA consultant and exempt from Article IV Paragraph J.  Finally, Green ended her presentation describing how this new agreement is a historic and positive step for relations between water rights interests on the Western Slope and the Front Range.

Amelia Whiting of Trout Unlimited presented Environmental Concerns: Why Trout Unlimited Supports the Windy Gap Firming Project and Not the Gross Reservoir Expansion.  Trout Unlimited is a grass-roots organization dedicated to the conservation, protection, and restoration of North America’s coldwater fisheries and their watersheds.  Whiting began by describing the Windy Gap Firming and Moffat Collection System Projects.  Ms. Whiting ended by describing Trout Unlimited’s objections to the Moffat Collection System Project.  Trout Unlimited objects to the Gross Reservoir Expansion because Denver Water will not agree to reduce diversions if water temperatures are too high, to guarantee flows that cleanse the river of sediment, nor to develop a program of monitoring the rivers and adapting to developing situations.

Travis Bray of Denver Water presented Securing the Northern Moffat System: Why Denver Water Needs to Increase its Moffat Supply System.  Bray began by discussing Denver Water’s three-prong approach to municipal water supply: Conservation, Recycle, and Supply.  Next, Mr. Bray outlined the supply problems of the next 20 years including the reliabilities and vulnerabilities of the north and south Denver supply systems.  Bray then gave the history of the Moffat project from 1954, the Gross Reservoir’s completion date, to the present. Finally, Mr. Bray listed the following issues associated with the Moffat Collection System Project still outstanding: new studies, conflict resolutions, and Boulder county voting issues.  In a question after the presentation, Mr. Bray responded to Denver Water’s reluctance to agree to Trout Unlimited’s objections.  Mr. Bray stated all of the objections are existing problems and the Gross Reservoir Expansion would not be responsible for these problems.


UNIVERSITY OF DENVER WATER LAW REVIEW ANNUAL SYMPOSIUM 2013: ADDRESSING SUPPLY & DEMAND IMBALANCES IN THE COLORADO RIVER BASIN

Denver, Colorado       April 12, 2013

Age of Limits in Colorado, and How do We Recognize Them in Developing a State Water Plan?

John Stulp, Special Policy Advisor to the Governor on Water and Chairman of the IBCC at State of Colorado, moderated a panel on the limits of Colorado’s water supply and how future water supply projects and legislation manage those limits.  Panelists shared Western Slope and Front Range perspectives on Colorado’s water supply and the need to balance the development of new supply with flows for environmental and recreational purposes.  Furthermore, the panel examined the future viability of agricultural water transfers in meeting growing municipal supply.  The panel consisted of Eric Kuhn of the Colorado River Water Conservation District; Marc Waage of Denver Water; David Taussig of White & Jankowski, LLP; and Peter Nichols of Berg, Hill, Greenleaf & Ruscitti, LLP.

Eric Kuhn of the Colorado River Water Conservation District presented Augmenting Supply in Colorado: How Much Water Is Left to Develop in Colorado.  Kuhn discussed uncertainty in new water projects regarding the future supply and demand of water in Colorado.  Mr. Kuhn identified three source of uncertainty: (i) future hydrology, (ii) future demands, and (iii) existing compacts, such as the Colorado River Compact of 1922 and Upper Colorado River Basin Compact of 1948, imposing uncertain legal constraints.  Mr. Kuhn identified three politically and practically difficult to implement strategies to reduce risks and uncertainties for future water projects: (i) limit new consumptive use to times when the system storage is full, (ii) use water banks, and (iii) implement improvements to current and future storage.

Marc Waage of Denver Water presented a response to Kuhn’s presentation.  Waage started with the principle there is no unused water that the people of Colorado can use without consequences.  Next, Waage outlined existing conservation measures Denver Water currently employs to obtain unused water resources.  Waage noted Denver is reaching the limits of unused water resources that behavioral conservation can obtain.  Finally, Waage completed his presentation with the premise that small projects are very important for the future viability of the water system.  Waage listed four key aspects to promote these small projects: (i) giving water utilities support for conservation measures, (ii) flexibility in water laws to allow for sharing of water resources, (iii) streamlining water project approvals, and (iv) enabling future development of Colorado water.

David Taussig of White & Jankowski, LLP presented Challenges and Opportunities in Protecting Non-Consumptive Uses in an Ecologically Limited River System Like the Colorado River and Its Tributaries in Grand County.  Taussig listed numerous challenges involved in protecting the water resource of Grand County.  He listed the major challenges as improving the water clarity of Grand Lake, reducing sedimentation in Grand Lake and the Colorado River, and ensuring water flows are adequate to keep water temperatures below standard levels.  Taussig listed the following opportunities to protect the water resources of Grand County: increase limits on future diversions from the Colorado and Fraser Rivers; require Grand County’s and the Colorado River District’s approval for all future projects, adhere to the 2008 Colorado Water Quality Control Commission’s narrative standard on water quality; and require flushing flows of up to 1200 cfs below Windy Gap.  Taussig was confident that implementing the opportunities he listed would help alleviate the challenges he listed and would protect the Colorado River and its tributaries in Grand County.

Peter Nichols of Berg, Hill, Greenleaf & Ruscitti, LLP presented The Future of Transfer From Agricultural to Municipal Use: Changing Colorado Legislation to Allow for More Flexible Water Leases.  Nichols outlined six pieces of existing and future Colorado Legislation allowing for temporary transfers of water rights from agricultural uses to municipal uses.  Legislation would limit the majority of transfers to a duration of three to ten years, contingent on the requirement that no injuries would occur to existing rights holders, and subject to the State Engineer’s approval. Nichols completed his presentation by asserting these leases are an essential element of state water policy and we need to find out if they will be effective tools to alleviate water shortages.

Eric Kuhn, Marc Waage, David Taussig, and Peter Nichols presented a variety of issues, challenges, and opportunities that limits of Colorado’s water supply could impose on development of a state water plan.  All panelists were optimistic that implementation of the opportunities could ensure a water supply for Colorado’s future generations.


UNIVERSITY OF DENVER WATER LAW REVIEW ANNUAL SYMPOSIUM 2013: ADDRESSING SUPPLY & DEMAND IMBALANCES IN THE COLORADO RIVER BASIN

Denver, Colorado       April 12, 2013

International Water Law: The United States and Mexico

The second panel discussion of the Symposium focused on the international legal regime governing the allocation of Colorado River water between the United States and Mexico.  Specifically, the panelists focused on the 1944 Mexican-American Treaty (“1944 Treaty”) and the recently enacted Minute 319 to the 1944 Treaty.

The first panelist was Edward Drusina, the United States Commissioner of the International Boundary and Water Commission (IBWC).  The IBWC is the intergovernmental agency charged, under the 1944 Treaty, with application of all the boundary and water treaties between the United States and Mexico.  The IBWC also settles differences in the application of those treaties.  Most importantly, the 1944 Treaty charged the IBWC with administering the rights and obligations of the United States and Mexico regarding the waters of the Colorado River and the Rio Grande.

The Commissioner began by giving a brief overview of the 1944 Treaty, the IBWC, its mission and history. He then gave a narrative overview of the joint cooperative process that culminated in the historic Minute 319, beginning with the 2007 joint statement by the Secretary of the Interior and the Mexican Ambassador.  This joint statement asked the IBWC to begin working towards solutions to the growing problems between Mexico and the United States regarding the boundary waters of the Colorado River Basin.

Minute 317 to the 1944 Treaty, signed in 2010, was the first major cooperative agreement following the 2007 joint statement.  Minute 317 set the framework for the subsequent bilateral talks on the Colorado River Basin by formalizing international workgroups and noting topics for further study.

Unfortunately, the 2010 earthquake in the Mexicali Valley destroyed large sections of the water diversion infrastructure in the Valley and the surrounding area.  Without emergency action on both sides, large amounts of Mexico’s Colorado River allotment would have been lost. The parties reached an innovative and unprecedented solution allowing Mexico to store almost 230,000 acre-feet of its total 1.5 million acre-feet allotment in the United States’ reservoir system.  This allowed Mexico to postpone its Colorado River water deliveries until those responsible could repair the damage from the earthquake.

In order to give Mexico sufficient time to complete repairs, the United States and Mexico entered two years of intense negotiations in order to solidify the arrangement set out in Minute 318 and to begin to deal with other issues facing the Colorado River Basin.  However, because of the nature of the water storage arrangement, Commissioner Drusina and his Mexican counterpart opted for only a five-year extension to Minute 318 in order to make sure the arrangement would work in everyone’s best interest.  Minute 319, signed in 2012, codified this extension to the Minute 318 storage arrangement and included several other provisions dealing with shortage sharing, surplus sharing, salinity concerns, water allocations for environmental programs, and a call for a twenty-one-million dollar investment in Mexico over the five-year cycle of Minute 319.

Following Commissioner Drusina was Karen Kwon, the Colorado Assistant Attorney General.  Kwon gave an overview of the states’ roles in the international management of the Colorado River Basin and ways individual states have an impact on the diplomatic process.  Most importantly, the Colorado River Basin States (“Basin States”) have responsibilities under the 1944 Treaty to help keep the United States in compliance with its obligations to Mexico.  Also, the Basin States have played a major role in furthering coordinated management of the basin.  For example, during the negotiations over Minute 319, the Basin State representatives made sure that the lower basin states did not benefit at the expense of the upper basin states, and vice versa.

The final panelist, Peter Culp, first gave a brief description of how Mexican water rights holders utilize Colorado River water.  The vast majority of Mexico’s allotment of Colorado River water goes to agricultural uses, with the rest diverted mainly for use by municipalities.  According to Culp, nearly three-million people rely on this water supply.  Because the Mexicali region lies downstream from every American farm and municipality in the Basin, salinity and other chemical imbalances are a major problem for water users in northern Mexico.  Minute 319 begins to address this problem.

Culp then laid out the environmental implications of Minute 319 for the Colorado River delta ecosystem.  The delta, at the mouth of the river leading to the Sea of Cortez, plays a vital role in maintaining the health of both the river and its attendant fish and bird species.  Since the turn of the last century, however, the delta shrank dramatically to the point where the delta ecosystem had been declared effectively dead by the 1970s.  A large flood in the early 1980s actually reversed some of the degradation, which in turn spurred efforts to restore the delta.  Though some have made the assertion, Culp was quick to point out that the proponents of these efforts are not attempting to restore the delta to its historic maximum.  Instead, these efforts, which Minute 319 funds in part, will restore only a relatively small, perennial riparian ecosystem within the limits of the historic delta.  In addition to funding restoration efforts, Minute 319 storage arrangements between the United States and Mexico will allow Mexico to store and release water in a manner that will best facilitate restoration of the delta.


UNIVERSITY OF DENVER WATER LAW REVIEW ANNUAL SYMPOSIUM 2013: ADDRESSING SUPPLY & DEMAND IMBALANCES IN THE COLORADO RIVER BASIN

Denver, Colorado       April 12, 2013

Basin Study Overview with Reaction Panel and Q&A

Following the first keynote address, the 2013 Water Law Review Symposium welcomed an overview of the comprehensive Colorado River Basin Supply and Demand Study (“Study”).  The Study, jointly funded by the US Bureau of Reclamation and seven Colorado River Basin states, projected supply and demand imbalances throughout the upper and lower Colorado River Basins over the next fifty-years.  The discussion panel, comprised of several of the water law and policy experts who helped prepare the Study, gave a broad spectrum of perspectives on the Study’s findings and implications.

Carly Jerla of the US Bureau of Reclamation, representing the Federal perspective, began by giving a general synopsis of the Study.  It began by assessing changes in water supply and demand within the basin over the next fifty-years.  The Study’s authors then compiled these projections in order to see how the entire basin system is likely to perform under a wide range of projected future conditions.  Projections ranged from a very conservative scenario to a scenario based on a worst-case projection of the effects of climate change.  The final phase of the Study then identified portfolios of strategies for dealing with projected supply and demand imbalances.  While many of the solutions put forward are likely to reduce the long-term supply and demand imbalance in the basin, Jerla stressed that none of the options will completely eliminate the risks associated with increased demand and dwindling supply.

The next speaker, Kay Brothers of the Southern Nevada Water Authority, gave a lower basin perspective on the Study.  From this perspective, the Study highlighted the fact that lower basin municipalities will be unable to cope with projected supply and demand imbalances by relying solely on strategies designed to reduce demand.  Brothers instead stressed the need to develop new sources of supply in the lower basin, as well as the need to start developing new supplies of water as soon as possible, including developing new desalination capabilities and supplies of imported water.

The third speaker, Ted Kowalski from the Colorado Water Conservation Board, represented the Colorado State perspective.  According to Kowalski, because most of the big trans-mountain diversions to the Front Range are post-compact water rights, the Front Range has to begin looking for ways to avoid curtailment of these rights in the case of a Lee Ferry Deficit.  From this perspective, water banking in the upper basin represents a key solution for avoiding curtailment because of a Lee Ferry Deficit.  Dave Kanzer, representing the explicitly Western Slope perspective of the Colorado River Water Conservation District, likewise emphasized water banking as a key tool for avoiding a Lee Ferry Deficit in the next fifty-years.

Marc Waage from Denver Water presented the Front Range perspective.  Placing heavy emphasis on the uncertainty in the science behind the Basin Study, Waage pointed to lower basin shortage problems as the most pressing problem facing the basin as a whole, as well as the need for all of the basin stakeholders to work together to solve common problems.  Waage made it clear, however, that lower basin shortages should not keep the upper basin from developing its own allocation of Colorado River water.

The final speaker on the panel, Taylor Hawes of the Nature Conservancy, gave an environmental perspective on the Study.  Though she generally praised it, Hawes criticized the Study for not considering the current health of the river ecosystem and its associated species.  This failure, she contended, will inevitably lead to further degradation and, importantly, to further endangered species listings within the basin.  This will in turn generate greater conflict among the basin stakeholders while decreasing flexibility to cope with future imbalances.  These criticisms aside, Hawes echoed the general sentiment among the panelists that the Study represents an important first step in confronting the challenges facing the Colorado River Basin over the next fifty-years.