Eureka Cnty. v. State Eng’r of Nev., 359 P.3d 1114 (Nev. 2015) (holding that the State Water Engineer provided insufficient evidence to support his finding that the applicant could mitigate the impact of appropriation on existing water rights).

In 2005, General Moly, Inc. (“General Moly”) began to apply for water rights in anticipation of the molybdenum mine that it sought to construct in Eureka County (“Eureka”). The following year, General Moly created a subsidiary, Kobeh Valley Ranch, LLC (“KVR”), to take charge of the proposed mine’s water rights. KVR submitted multiple applications for water rights between 2006 and 2010.

Eureka and several senior water rights holders in the area objected to KVR’s applications because, inter alia, they conflicted with existing rights. The Nevada State Engineer (“Engineer”) held several hearings on the matter and ultimately found that, although KVR’s applications would impact existing rights, KVR could fully mitigate the impact. Thus, the Engineer granted all of KVR’s applications and required that KVR develop a mitigation plan (“3M Plan”) to alleviate any impact.

Eureka, as well as Kenneth F. Benson, Diamond Cattle Company, LLC, and Michel and Margaret Ann Etcheverry Family, LP (“Benson-Etcheverry”), petitioned the Seventh Judicial District Court, Eureka County (“district court”) for judicial review of Engineer’s ruling. The district court did not grant the petition because it found that the Engineer’s ruling had substantial evidence and that conflict avoidance through mitigation comported with the requirements of the Nevada statute. Eureka and Benson-Etcheverry appealed the district court’s denial of judicial review to the Nevada Supreme Court (“Court”) and asked the Court to determine whether the Engineer may consider mitigation abilities when assessing the conflicts between a proposed water right application and existing rights.

The Court first addressed whether the Engineer complied with the controlling state statute, Nevada Revised Statute § 533.370. The statute requires that “where [a] proposed use or change conflicts with existing rights . . . the State Engineer shall reject the application and refuse to issue the requested permit.” The Court declined to decide if the statute allowed the Engineer to grant applications on the condition of future mitigation. Instead, the Court focused on whether Engineer’s ruling had substantial evidence.

The Court analyzed the record and found that although the Engineer labeled existing water right holders as “likely to be impacted,” expert testimony portrayed this labeling as a significant understatement. Specifically, two experts for KVR admitted that the proposed pumping would cause flows to cease and stock watering wells to dry up. Because the requested appropriations could “completely deplete” the water sources underlying existing rights, the Court ruled that KVR’s applications fit undeniably within the statutory requirement of a “conflict.”

Next, the Court considered the Engineer’s evidentiary support for his reliance upon the 3M Plan to resolve the water rights conflicts. The Court limited its analysis to a determination of whether substantial evidence supported the Engineer’s decisions. The Engineer found that “flow loss can be adequately and fully mitigated by [KVR] should predicted impacts occur[,]” but neither the Engineer nor KVR articulated which techniques would comprise this mitigation plan or what evidence suggested that mitigation would truly restore senior water rights. The Court found that rather than requiring KVR to propose a mitigation plan before he granted appropriation rights, the Engineer required KVR to submit such a plan after he granted all of its change and use permits. The Court warned that granting water rights before submission of a mitigation plan could interfere with the due process rights of those who wish to protest an application because the challenge could only result in vacating the mitigation proposal. The Court did not adopt Engineer’s and KVR’s assumption that an effective 3M Plan could circumvent the statute’s “conflict” stricture. Instead, the Court ruled that Engineer provided insufficient evidence to support his theory of mitigation and thereby violated the requirements of the state statute by granting KVR its applications in spite of imminent impact.

Accordingly, the Court reversed the order of the district court and remanded the case.

 

The featured image is of an open pit mine in southern Arizona.  This photo is from the public domain.


Boats and Woes

A look at the city of Denver’s ban on swimming through an environmental justice lens

Environmental issues extend beyond simply ensuring that we respect and conserve our habitat. Environmental justice transcends environmental protection to incorporate issues of social justice.  By definition, environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.  In practice this means that all people, regardless of race and class, should have the same access to a clean and healthy environment. Furthermore, this concept imposes a duty on the government to ensure that government policies are in line with environmental justice principles.  Denver has developed a good plan for the city’s arrangement of public parks that is in line with environmental justice principles.  Denver’s guidelines for park accessibility state that each resident should live within six blocks of a park and that there should not be physical barriers between the two.  Nonetheless, close proximity to parks within the city does not guarantee equal enjoyment of Denver city parks.

Particularly troubling is the ban on swimming at a Denver public lake where high cost activities such as boating and water skiing are permitted.  This ban on swimming is reflective of the need for environmental justice across the Denver parks system because it has the repercussion of discriminating against lower income communities who cannot afford boating recreation.  A look at Denver’s history of discrimination and the ban’s illogical justification will demonstrate the need for reconsidering this prohibition.

Denver is an ethnically diverse city with almost an exact split between Non-Hispanic Whites and other ethnic groups.  Historically, the city was largely segregated by ethnicities, but this segregation is becoming less apparent.  In spite of this positive change, there continues to be inadvertent discrimination in not-so apparent ways.  A small, but growing body of research shows that in Denver access to environmental goods and exposure to environmental hazards are unequally distributed across low-income ethnic groups.  In particular, researchers established that in metro Denver, ethnic minority and low-income communities live closer to toxic hazards and that Denver’s wealthier neighborhoods have significantly more vegetation.  Furthermore, a study on a small sample of Denver neighborhoods showed that low-income communities of color have significantly less access to parks and to parks with play amenities, such as playgrounds and other recreational activities, than mid- to high-income white neighborhoods.  This study included a sample of six urban and six suburban neighborhoods, and four neighborhoods for each of the income categories (low, medium, and high).  In addition, the study classified each park based on the presence of formal and informal play opportunities.

Growing research also indicates the importance of access to nature and outdoor activities.  Studies show that access to nature can help reduce stress, induce cognitive development, and improve a community’s health and wellbeing.  Given the positive correlation between access to outdoor activities and the wellbeing of a community, it is important that Denver ensures it affords all communities the same opportunities.  Furthermore, studies show that nearly eighty percent of low-income minorities in Denver Public Schools have never been to Rocky Mountain National Park.  Such a statistic is representative of the need for Denver to provide its citizens with access to outdoor recreation activities, because there is something inherently wrong with living in such a beautiful state and not being able to enjoy the outdoor recreation it has to offer.

Reflective of this inadvertent discrimination are the rules of Sloan’s Lake, a Denver park, which allows water skiing, but bans all swimming.  The Denver municipal code states that it shall be unlawful for any person to wade, swim, or bathe in any river, creek, canal, lake, reservoir, or other stream or body of water in Denver.  The Denver Department of Environmental Health justifies this ban on swimming by stating that Denver’s lakes and streams receive runoff from Denver streets, yards, parks, industry, and wastewater treatment plants that can make people sick.  Nonetheless, the Denver municipal code allows swimming if the manager of environmental health finds that a natural body of water is safe to swim in.  Upon first inspection, the swimming ban at Sloan’s Lake seems necessary to protect park patron’s health, yet the park allows boating activities, such as water skiing, that run contrary to this purpose.  Water skiing entails skiers being submerged in water and subjected to the same pollutants that the city is trying to shield people from when banning swimming.  In addition, the city tests Sloan’s Lake on a bi-weekly basis for contaminants and is consistently found to have water quality levels that surpass state requirements, making it a safe lake to swim in.  Water skiing is an expensive activity that requires the possession of a boat, which many people cannot afford, while swimming is virtually cost free.  The effect of banning swimming but allowing boating is that Denver provides low-income members of the community with fewer amenities and recreation opportunities at Sloan’s Lake.

Sloan’s Lake is near a low-income minority community, who regularly use the park to picnic, relax, and enjoy the outdoors.  Lifting the swimming ban at Sloan’s Lake would allow a larger portion of its neighboring community to enjoy the amenities the park has to offer.  In addition to the safe water quality at the lake, Denver Parks and Recreation will have to consider other mitigating factors when determining whether swimming is appropriate, such as the construction of appropriate infrastructure to swim, the need to hire lifeguards, and other potential liabilities that could come from allowing swimming.  Nonetheless, the city allocated $4 million in 2012 for remodeling the boat marina at Sloan’s lake reflecting the city’s ability to fund projects in the name of recreation.  Denver should continue to work towards ensuring environmental justice across city policies and rules, lifting this swimming ban would serve that purpose well.

 

The featured image is of Bierstadt Lake in Rocky Mountain National Park. This photo is part of the public domain.


Sources:

Heidi L. Beattie ET AL., Impact of Urban Nature on Executive Functioning in Early and Middle Childhood Environment and Behavior, SAGE PUBLICATIONS (2015).

DENVER CO. MUN. CODE § 24-9 (2015).

DENVER CO. MUN. CODE § 39 (2015).

Travis L. Flohrm & Alessandro Rigolon,  Access to Parks for Youth as an Environmental Justice Issue: Access Inequalities and Possible Solutions (April 2014).

Barry E. Hill, Environmental Justice: Legal Theory and Practice, 45 Envtl. L. Rep. News & Analysis 10236 (2015).

Alessandro Rigolon, Inequities in young people’s access to urban parks: an environmental justice investigation in Denver (July 24, 2015) (unpublished Ph.D. dissertation, University of Bologna) (on file with author).

Joe Vaccarelli, Marina Renovations Complete at Sloan’s Lake Park in Denver, DENVER POST (Nov. 18, 2015), http://www.denverpost.com/ci_21362803/marina-renovations-complete-at-sloans-lake-park-denver?source=infinite-up.

Nancy M. Wells & Gary W. Evans, Nearby Nature: A Buffer of Life Stress Among Rural Children  Environment and Behavior, SAGE PUBLICATIONS (2003).


Over the last thirty-five years, American Indian tribes have slowly forged a relationship with the Environmental Protection Agency (“EPA”). This began in 1980, when the EPA released a policy statement holding tribes to federal environmental standards.[1] Since then, however, only a small percentage of tribes have met the qualifications needed to carry out the Clean Water Act (“CWA”) through government-to-government partnerships.[2] In response to this shortcoming, this past August, the EPA proposed a new rule that reinterprets Section 518 of the CWA titled “Revised Interpretation of Clean Water Act Tribal Provision.”[3] Specifically, the new rule aims to relieve American Indian tribes’ burden of demonstrating inherent regulatory authority under the Montana test in order to apply for Treatment as a State (“TAS”) status under Section 518(e) of the CWA. The new interpretation will streamline the process for Indian tribes to manage water quality within their reservations, including managing water quality on nonmember fee simple land.

The EPA’s newly proposed rule marks a shift in what responsibilities tribes have in regard to federal environmental regulations. Congress passed the CWA in 1972 demonstrating its ongoing commitment to maintain the integrity and health of the national water supply.[4] In the 1970s, the federal government passed a number of environmental laws that mostly ignored, or hardly mentioned American Indian tribes.[5] Similarly, the original CWA omitted American Indian nations, although it is a broad, nationwide statute. In response to this oversight, Congress started incorporating tribes into various environmental statutes’ framework.[6]

In 1987, concerns about pollution on Indian Country prompted Congress to add a TAS provision to the CWA.[7] Under this amendment, the regulatory agency may treat a qualifying American Indian nation similar to a state government when creating and approving a reservation’s water quality standards (“WQS”). Moreover, the TAS provision permits qualifying tribes to apply for certain grants[8] and programs including National Discharge Elimination System (“NPDES”) permits,[9] nonpoint source management,[10] and dredge and fill permits.[11]

In 1991, the EPA promulgated the water quality standards TAS rule, which explains the WQS and CWA certification programs for tribes under Section 303(c) of the Clean Water Act.[12]  The TAS rule requires a tribal nation to meet certain criteria before it can effectively regulate water quality under the CWA.[13]  Federal recognition is the first requirement for a tribal applicant.[14] Moreover, a tribe is required to demonstrate the capability of carrying out substantial lawmaking responsibilities and authority over reservation land, as defined in Section 518(h)(1). Last, a tribe should have appropriate regulatory authority over the reservation’s water quality, in addition to demonstrating its ability to implement the CWA program.[15]

The EPA’s new rule aims to reduce the burden on tribes through cooperative federalism within the TAS process.[16] This effort to delegate American Indian tribes more autonomy in managing water quality standards implicates a landmark Supreme Court decision, Montana v. United States, which held that in the absence of a federal grant of authority, a tribe presumptively lacks inherent jurisdiction over the activities of nonmembers on nonmember fee land.[17] This is land owned by non-Indians, who are not members of the tribe. However, the Supreme Court defined two exceptions to this jurisdictional rule. The Court determined that a tribe could exercise civil jurisdiction over nonmember activities within its reservation in two limited exceptions. First, where the nonmember enters into a consensual relationship with the American Indian tribe or its individual members, through a lease, contract, commercial deal, or other type of arrangement, an exception to tribal jurisdiction is permitted. Second, the tribe may retain jurisdiction when the nonmember activity has a direct effect on or threatens the political stability, economic security, or the general welfare or health of the tribe.[18]

The Montana test has had wide-ranging implications for tribal governments to exercise consistent regulatory authority, environmental or otherwise, over the entire reservation, as many nonmembers own land within the parameters of these lands. In an effort to conserve both the EPA’s and tribal resources, the EPA will no longer require a tribe to meet the Montana test. Within its statement about the Revised Interpretation, the EPA stated, “tribal applications for reservations with nonmember fee lands, which require an analysis of tribal inherent authority under Montana, took 1.6 years longer to be approved, on average, than applications for reservations without such lands.”[19]

Consequently, a tribe will not have to demonstrate its inherent authority to regulate water within its reservation boundaries.[20] Instead, the EPA will permit an applicant tribe to rely on Congress’s delegation of inherent authority under Section 518 in order to establish its tribal sovereignty in regulating its land and waters without having to distinguish between member and nonmember land.[21]

The EPA’s new rule demonstrates important progress in Indian Country for two reasons. First, by treating tribal nations similarly to states recognizes inherent tribal sovereignty. The EPA’s new rule reflects the federal government’s modern trend of treating tribes similarly to a state government in delegating administrative authority. This delegation of authority is a product of the Self-Determination Era, which commenced with President Richard Nixon’s 1970 speech to the Congress on Indian Affairs.[22] The federal government helps in promoting and recognizing tribal self-governance through government-to-government partnerships.[23] The Self-Determination Era refers to somewhat of an American Indian “nation-building” movement, which included establishing tribal governments, courts, police forces, and schools.

Second, the Revised Interpretation is important because only about forty of the 300 Indian Tribes with reservations have obtained the EPA’s approval for TAS status.[24]  This is not to say that tribes cannot regulate their waters without TAS approval, but the EPA’s recognition provides further funding and certification programs to help legitimize and strengthen tribal water management. Tribes generally lack a tax base upon which to develop water management, but with TAS recognition, tribes receive money for water management projects. Thus, allowing tribes with ‘checkerboard’ reservations (that is reservations with large swaths of both member and nonmember land) to bypass the Montana test will make it easier for tribes to receive funding from the federal government for maintaining and improving reservation water quality.

Overall, alleviating this administrative barrier will make it easier for tribes to implement CWA programs targeted at reservation water quality.  It will save tribes both time and resources in their TAS applications, as well as relieve the EPA of identifying on a case-by-case basis whether an individual tribe can meet the Montana test.  Moreover, this rule should encourage more American Indian tribes to apply for TAS status in order to successfully implement CWA programs.[25] This is an important step because clean water is paramount to Indian tribes, not just for sustenance, but also for spiritual, medicinal, and cultural reasons.[26] For example, the most recent tribe to receive TAS status, the Santa Ana Pueblo, views the water within their New Mexico reservation as important for maintaining its own cultural heritage.

Comments for this new rule closed on October 6, 2015. The EPA should make a final determination on whether or not it will implement the Revised Interpretation soon, but the agency has not provided a precise timeline.

Kathleen (K.C.) Cunilio

The featured image is of Dead Horse Point on the Colorado River.  This photo belongs to Clement Bardot.  Use of his photo does not represent his endorsement of the Water Law Review.


Sources:

[1]  Washington, Dep’t of Ecology v. U.S.E.P.A., 752 F.2d 1465, 1471 (9th Cir. 1985) (quoting the Environmental Protection Agency announcement titled  EPA Policy for Program Implementation on Indian Lands released Dec. 19, 1980).

[2]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg. 47430-02, 47430–31 (Apr. 7, 2015).

[3]  Id.

[4]  33 U.S.C. § 1251 (2015).

[5]  Dean B. Suagee, Tribal Self-Determination and Environmental Federalism: Cultural Values As A Force for Sustainability, Widener L. Symp. J., Fall 1998, at 229, 232.

[6]  Id. at 233.

[7]  33 U.S.C. § 1377 (2015).

[8]  See, e.g., 40 C.F.R. 35.580-88 (2016); 40 C.F.R. 35.600-15 (2016); 40 C.F.R. 35.630-38 (2016).

[9]  33 U.S.C.  § 1377(f).

[10]  Id.

[11]  Id. at § 1344.

[12]  Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39098-01 (Sept. 22, 1989).

[13] Requirements for Indian Tribes to administer a water quality standards program, 40 C.F.R. § 131.8 (2015).

[14]  Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39101 (Sept. 22, 1989).

[15]  Id.

[16]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg. 47430-02, 47433 (Aug. 7, 2015).

[17]  450 U.S. 544 (1981).

[18]  Id. at 565-66.

[19]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg 47430-02 , 47436 (Aug. 7, 2015).

[20]  Id. at 47437.

[21]  Id.

[22]  Richard Nixon: “Special Message to the Congress on Indian Affairs,” July 8, 1970, available at http://www.presidency.ucsb.edu/ws/?pid=2573.

[23]  25 C.F.R. § 1000.4 (2016)(Congressional policy on tribal self-government).

[24]  Pueblo of Santa Ana Granted Federal Authority to Protect Water Quality, United States Environmental Protection Agency (Jul. 22 2015), http://yosemite.epa.gov/opa/admpress.nsf/0/0DC659BDC3EFBC5685257E8A0056A0A2 (last visited Dec. 13, 2015).

[25]  Id.

[26]  Marren Sanders, Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner As A State, 36 Wm. Mitchell L. Rev. 533, 553 (2010).


Arizona Dep’t. of Water Res. v. McClennen, 360 P.3d 1023 (Ariz. 2015) (holding that: (i) Ariz. Rev. Stat. Ann. § 45-172 provides the only grounds for which the Arizona Department of Water Resources can deny an application for severance and transfer of a water right; and (ii) the statute defines “interested persons” as those with interests protected by § 45-172 and whose rights the transfer would affect).

In 2010, Freeport Minerals Corporation (“Freeport”) sent applications to the Arizona Department of Water Resources (“ADWR”) to sever water rights from Planet Ranch in Mohave County and transfer them to a wellfield near Wikieup. The proposed transfer would not physically remove any water, but rather it would give Freeport the right to use water for mining and municipal uses without losing priority.

Freeport previously entered into settlement agreements with the Arizona Game and Fish Department, the Hualapai Tribe, and the Department of the Interior, which Congress approved in the Bill Williams River Water Rights Settlement Act of 2014 (“Act”). The Act was scheduled to expire in December 2015 if Freeport failed to fulfill certain conditions, including the ADWR granting Freeport’s applications.

Upon receiving Freeport’s applications, the ADWR published notice in numerous Mohave County newspapers stating ‘any interested person’ could file a written objection. Mohave County (“County”) filed an objection to Freeport’s applications, arguing that the transfer would affect the county’s water supply, increase taxes, and was against the public interest. The ADWR rejected the County’s arguments, finding that the county did not have an affected water right. Additionally, the ADWR concluded it was not authorized to deny the applications on the basis it would cause an increase in tax burdens to residents or it would be against public interest. An administrative law judge upheld the ADWR’s decision finding that none of the County’s objections were based on the “limitations and conditions” enumerated in Ariz. Rev. Stat. § 45-172.

In December 2014, the County filed an appeal in superior court, which vacated the ADWR’s final decision in June 2015. Freeport and the ADWR filed appeals with the Arizona Court of Appeals and moved to transfer the case to the Supreme Court of Arizona (“Court”). The Court granted the petition for special action.

The Court first addressed whether the ADWR had authority to deny severance and transfer applications for reasons other than those listed in the statute. Section 45-172(A) provides: “[a] water right may be severed from the land to which it is appurtenant . . . [and] may be transferred for use . . . without losing priority theretofore established, subject to the following limitations and conditions.” One such limitation is that the ADWR director must publish notice of applications in a newspaper in the county where the drainage or watershed lies. The published notice must include that any interested person may file written objections within thirty days from the last day of published notice.

In construing this statute, the Court analyzed legislative intent. The statute identifies specific limits or conditions in approving water rights transfers. The Court found that the ADWR’s review of an application is a “licensing decision,” which prohibits the ADWR from basing its decision on any condition not specifically authorized by the statute.

The County argued that the ADWR has discretion under § 45-172(A) to consider other factors because the statute says water rights “may” be severed and transferred. However, the Court found “may” to refer to the ability to sever and transfer the water right. The Court reasoned that interpreting “may” to allow the ADWR broad discretion to deny an application overlooks the rest of the sentence stating “subject to the following limitations and conditions.” The County cited various statutes purportedly supporting that the ADWR could deny applications for reasons not listed in § 45-172(A), but the Court found them unconvincing. Thus, the Court found the ADWR did not abuse its discretion in denying the County’s objections, which were not listed in § 45-172(A).

The Court next addressed whether the County qualified as an “interested person” entitled to file objections to the transfer and severance applications. Because the phrase “any interested person” is ambiguous, the Court found it was subject to more than one meaning.

The County first argued that the Court should interpret the phrase “any interested person” as anyone having an interest or concern about the transfer and severance of water rights. The Court found this interpretation would allow almost anyone to file objections, rendering the word “interested” essentially meaningless. The Court specifically noted that words should not be construed in isolation, but rather taken together in context.

Read in context, the Court construed the phrase “any interested person” to mean any person having a statutorily protected interest that would be affected by the application for proposed transfer and severance. The Court concluded the County was not an “interested person” entitled to file an objection in this case because it had no such protected interest.

Second, the County contended that “interested persons” should encompass more than those persons who have existing water rights because the statute requires the director to give notice of the applications. The County reasoned that if “interested persons” were only those having an interest protected by statute, it could send notice directly to those persons, rather than circulating notice in a newspaper. The Court found this argument unpersuasive because publication requirements are not inconsistent with imposing limitations on who may file objections.

Third, the County argued it qualified as an “interested person” because approval of the severance and transfer would cause it injury. Specifically, the severance would increase tax burdens on county residents and could negatively effect water supplies. The Court found that this argument improperly conflated standing, which requires plaintiffs to allege sufficient injury in order to appear in court.

Fourth, the County claimed that the ADWR must first consult with the County before deciding on applications under Ariz. Rev. Stat. § 11-269.09(A). The County also contended it has an obligation under Ariz. Rev. State § 11-804 to protect water resources in the county. The Court found neither statute applied.

Last, the County argued the Court should construe § 45-172(A) liberally to “promote the ends of justice.” The County cited Armer v. Superior Court, in which the Court adopted this approach when interpreting the phrase “party beneficially interested.” Finding that “any interested person” was not synonymous with the phrase “party beneficially interested,” the Court declined to adopt this approach.

Accordingly, the Court vacated the superior court judgment and affirmed the ADWR’s final decision.

The featured image was taken near Phoenix, Arizona.  It is part of the public domain.