State Eng’r of New Mexico v. Diamond K Bar Ranch, LLC, 385 P.3d 626 (N.M. 2016) (holding: (i) waters diverted from an out-of-state river into New Mexico by ditch remained unappropriated waters of New Mexico subject to the regulatory authority of the New Mexico State Engineer; and (ii) the landowners’ use of water in excess of existing permitted water rights was an illegal use of surface water).

The Animas River flows south from Colorado into New Mexico.  The Ralston Ditch, located in southern Colorado, diverts water from the Animas River into New Mexico.  The Echo Ditch Decree (“Decree”) established the rights of Petitioner, Diamond K Bar Ranch, LLC (“Diamond”) to water diverted by the Ralston Ditch.  The State Engineer of New Mexico (“State Engineer”) brought suit against Diamond for using river waters in excess of the permitted quantity under the Decree.

Diamond claimed it was entitled to appropriate more water than provided in the Decree and filed a motion to dismiss alleging (1) that the State Engineer lacked the regulatory and constitutional authority to enjoin them from the use of river waters when the water was transported by a ditch from Colorado into New Mexico and (2) that the Ralston Ditch was exempt from permitting requirements because it was a “community ditch.”  A district court denied Diamond’s motion to dismiss but certified its ruling for interlocutory appeal.  The appellate court quashed Diamond’s interlocutory appeal and the New Mexico Supreme Court granted Diamond’s petition for writ of certiorari.

The Court first considered Diamond’s argument that the Ralston Ditch was not a “natural watercourse” that flowed into New Mexico and thus not subject to the State Engineer’s authority because the water became private at the point of diversion.  The Constitution of the State of New Mexico broadly granted the State Engineer the authority to regulate the unpermitted appropriation of water of “every natural stream” within the state of New Mexico.  Diamond primarily relied on Turley v. Furman, in which the court found that the New Mexico State Engineer did not have the jurisdictional authority to grant a permit for the construction of a new diversion in Colorado.  Distinguishing Turley v. Furman, the Court noted that the State Engineer made no attempt to exercise authority over the appropriation of out of state waters or the construction of a new out of state ditch, but instead regulated the appropriation of New Mexico surface waters for use on lands in New Mexico.

The Court also recognized that New Mexico allows only a usufructuary right to water and that a person cannot have a private ownership in the corpus of the water.  Accordingly, the Ralston Ditch alone could not create a water right.  The Court rejected Diamond’s argument that waters diverted into New Mexico by ditch conveyance was “by artificial means” and thus rendered its use private because the water never flowed “in a natural stream” within the state of New Mexico.  The Court held that the waters diverted from the Animas River into the Ralston Ditch remained natural, unappropriated waters, subject to the regulation of the State Engineer.

The Court next addressed Diamond’s argument that it was not required to obtain a permit to divert water from the Ralston Ditch waters because it was an existing community ditch.  Community ditches are early New Mexico diversion that do not require a diversion permit pursuant to N.M.S.A. Section 72-5-2.  The Court recognized that the Ralston Ditch was a community ditch constructed in the 1880s and that Diamond’s pre-1907 water rights did not require a permit for the under N.M.S.A. Section 72-5-2.  However, citing several New Mexico statutes, the Court recognized that the exemption applied only to the place of diversion and not to the quantity of water appropriated, and that community ditch users remained subject to the regulation by the State Engineer.  The State Engineer alleged that Diamond had used an amount of water that exceeded its permitted right and that Diamond had used the water to irrigate lands not appurtenant to such rights.  The State Engineer also had authority to regulate Diamond’s water consumption because the Decree stated that “the State Engineer must approve any change” in water use, regardless of whether the ditch is a community ditch.  The Court acknowledged that the Ralston Ditch to the Decree.  The Court held that although Diamond had a vested water right as a community ditch user, they were still subject to regulation by the State Engineer.

Accordingly, the Court affirmed the district court’s denial of Diamond’s motion to dismiss and remanded the case for trial.

Reggie Norris

Image: A New Mexico ditch. Flickr User Mike Tungate, Creative Commons.

More than one thousand days have passed since the city of Flint, Michigan, had clean drinking water. One thousand days pales in comparison to the two centuries of research on the effects of lead contamination existing prior to April 2014, when disputes with the Detroit Water and Sewerage Department caused Flint to reopen its one-hundred-year-old lead pipeline connected to the Flint River. 

The Flint water crisis continues to make headlines into 2017, ranging from updates about the city’s drinking water lead levels, publication of a human rights commission report, initiation of more criminal lawsuits, and most importantly, contemplation of the future of Flint’s drinking water infrastructure.

Continued Water Advisories Despite Lower Lead Levels

First, the current lead contamination level in Flint’s water has subsided and is now below the federal limit. Nonetheless, the Michigan Department of Environmental Quality continues to advise Flint residents to use filtered drinking water while the city works to replace its lead-laced underground piping. The state continues to provide bottled water and filters to residents. However, the state of Michigan is trying to wean the City of Flint off of is its subsidization of water.

Discontinuation of Water Subsidies

This change occurred on the last day of February after the most recent water test demonstrated that Flint’s water complies with federal rules regarding copper and lead levels. Prior to this recent policy decision, the Michigan state government provided homeowners and businesses with water relief credits ranging between twenty and sixty-five percent.

Government officials estimate the cost of this these credits at $40.4 million. Considering that an initial remedy of adding phosphorous to water coming from the Flint River would cost, at most, $100,000 per year, the $40.4 million in water relief credits and the mounting legal costs associated with the crisis are exorbitant.

In a news release reacting to this announcement by Governor Snyder, Flint Mayor Karen Walker stated that, “We knew the state’s assistance with these water-related expenses would come to an end at some point, I just wish we were given more notice so we at City Hall, and the residents, had more time to prepare for the changes.”

Issues of Environmental Racism in Flint

In March 2017, an expert on Legionnaires Disease claimed the Flint water system is the likely source of a deadly outbreak killing twelve people in Flint in 2014 and 2015. In an affidavit filed with state health regulators, Dr. Janet Stout said that the city’s switch from Lake Huron back to the Flint River, as well the governmental inaction to treating the corrosive water, caused the outbreak, which also resulted in ninety-one illnesses. This Flint River water dissolved the lining in the city’s old pipes, causing iron to enter the water and boost Legionella bacteria reproduction. So not only were Flint residents left to worry about lead poisoning, they also had other harmful adulterants in their water.

The disease expert’s affidavit said the McLaren-Flint Hospital was the common source of exposure for over half of the Legionnaires confirmed cases during a seventeen-month period. This affidavit may have been included in the hospital’s response to inquiries from the Michigan Department of Health and Human Services to absolve itself from potential liability or sanctions for exposing hospital patients to the deadly disease.

A national study last year reported that Flint citizens of this predominantly African American city paid the highest water rates in the country. Even when the water was laced with lead, it is now apparent that some residents paid with their lives. The link between poor neighborhoods and the people of color who inhabit them has sparked the much-needed conversation of environmental racism.  Poor neighborhoods in the U.S. contain disparately greater amounts of lead.

The 2017 Michigan Civil Rights Report on Flint

Early this year, the government-appointed Michigan Civil Rights Commission released a lengthy 129-page report regarding the water crisis in Flint entitled, “Systemic Racism Through the Lens of Flint.”

The report acknowledges that “the people of Flint have been subjected to unprecedented harm and hardship, much of it caused by structural and systemic discrimination and racism that have corroded your city, your institutions, and your water pipes, for generations.” This report indicates “that the vestiges of segregation found in Flint made it a unique target” for its water crisis.

Moreover, the report argues that the racial discrimination in employment practices, education, housing, and even lending practices demonstrate a pattern of race-related issues in Flint. This pattern of historic racism “was built into the foundation and growth of Flint, its industry and the suburban area surrounding it.”

One of the report’s recommendations includes bias training for state officials. Additionally, this report is the third report to target current state laws related to emergency manager positions. A state-appointed emergency manager made the key recommendation to use the Flint River as a water source, albeit for just an interim period.

More Criminal Charges Filed in Addition to On-Going Civil Suits

Michigan Attorney General Bull Schuette charged two emergency managers, among two others, late last year. With these added officials, the total number of state employees criminally embroiled in the Flint water crisis sits at thirteen. Criminal charges among this group hovers at forty-three. In Schuette’s ongoing criminal investigation, the fact that a state-appointed emergency manager controlled Flint when it switched to the untreated water is crucial to these new charges.

In addition to these criminal-focused investigations, Schuette’s office also filed civil claims against two private companies: the Texas-based corporation LAN and multi-national corporation Veolia in mid-2016. These two for-profit water-engineering firms both allegedly played a role in the decision to switch to Flint River water.

The alleged civil law violations between these two companies include professional negligence, fraud, and public nuisance. Moreover, the lawsuits allege that these two companies overlooked crucial warning signs leading up to and during the water crisis. To back its civil claims, the Attorney General’s website also publicly displays a dearth of complaint exhibits for these two civil suits.

While some Flint residents are focused on these lawsuits and holding government official accountable for the lead in their water, others, including Flint’s mayor Karen Weaver, are looking towards the future.

Other Cities May Need To Take a Closer Look at Flint’s Water Infrastructure Rebuilding

Mayor Weaver recently announced that the city is still at least two full years away from achieving lead-free water service lines. These ongoing infrastructure development issues remain important because Flint’s agreement with the entity that provides its residents with its current water source is set to expire this summer.

In terms of the infrastructure efforts, Flint’s Mayor cautioned that a completion date of August 2019 is the goal. By then, the city will be able to replace its thousands of lead and otherwise unsafe service line pipes for its roughly 98,000 residents. As of March 2017, Flint has only replaced 8,000 of those pipes. Very recently, the EPA announced that Flint will receive a $100 million emergency grant to help fund these updates.

Other cities may also be looking at Flint’s infrastructure plans. For example, Pittsburgh is currently struggling with elevated levels of lead in its tap water. The lead issue in Pittsburgh is so widespread that the city’s mayor recently announced that the city will offer the free filters to all City of Pittsburgh homeowners.  A Virginia Tech professor who has researched the Flint water crisis also commented on what’s going on in Pittsburgh.  “The levels in Pittsburgh are comparable to those reported in Flint,” Dr. Mark Edwards said. “I don’t think you have a Flint on your hand, but those levels are worrisome.”

An interesting twist is that Pittsburgh also contracted with Veolia, the same corporation that the State of Michigan is currently suing. Veolia consulted with Pittsburgh to help the city cut costs. One of the more drastic measures included having the city switch from using soda ash to treat pipe corrosion to caustic soda, a less expensive chemical additive.


In response to the media frenzy about the lead contamination, Governor Rick Snyder responded by releasing his emails back in January 2016.  In one email, he stated, “It’s just a few IQ points… It’s not the end of the world.”  However, local Flint pediatrician, Dr. Hanna-Attisha, disagreed: “If you were going to put something in a population to keep them down for generations to come, it would be lead.”

In part of the Michigan Civil Rights Commission’s report it noted, “When the last of the civil lawsuits and attorney general criminal investigations are completed, and relief dollars from state and federal sources are exhausted, what will remain is a city and its people who will continue to fight against built-in barriers but whose voices – as a matter of public right – must never be stifled or quelled again.”

While the slew of lawsuits implicating both criminal and civil blame for the Flint water crisis are far from settled, the town’s lower lead levels and long-term goal of replacing water service lines are small steps in the right direction. Nonetheless, Flint may simply be the tip of a lead-laden iceberg as other cities like Pittsburgh are realizing their lead-based water pipelines pos a significant health risk.

                                                                                                                        Kelsey Holder

Image: Flickr User darkday, Creative Commons.



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Small-scale hydropower projects are on the rise in Colorado.  Both federal and state legislation paved the road for the rise by easing the permit process for hydropower as an energy source, and the recent Colorado Supreme Court decision in Frees v. Tidd created the no-stoplight speedway to make hydropower an up-and-coming energy source in the state.  However, stakeholders don’t yet fully know what this development might mean for water and water rights holders.


Historically, Colorado has been a proponent of hydropower development.  In 1891, Southwest Colorado became home to the first hydropower generating station in the world, and the state was already attempting to demolish the road blocks standing in the hydropower industry’s way prior to any of the recent federal congressional acts.  Between 2005 and 2013, Colorado developed sixty-two hydropower facilities.  In 2010, the Colorado Energy Office and the Federal Energy Regulatory Commission (“FERC”) signed a memorandum of understanding to streamline the processing of low-impact hydropower projects in Colorado.

While streamlining provided a clearing of roadblocks on the way toward a hydropower processing system that would benefit developers, Congress also enacted legislation to ease the process further.  In 2013, Congress passed both the Hydropower Regulatory Efficiency Act and the Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act (“Acts”).  These Acts incentivize hydropower development by eliminating the requirement of environmental impact statements while streamlining the federal regulatory approval process.  Colorado responded by publishing The Small Hydropower Handbook in 2013 and followed up with its 2014 state legislative law that synchronized state and federal permit processing.  This new process allows a noncontroversial project to obtain both state and federal approval in as short as sixty days.

Colorado courts joined the legislature’s pursuit for a streamlined hydropower permitting process with the landmark Colorado Supreme Court decision of Frees v. Tidd (“Frees”).  The Frees case, decided in June 2015, established that an applicant can obtain a junior conditional water right to use the same water as a senior water right holder so long as the applicant can show the water is available and will be for a non-consumptive use.

David, George, and Shirley Frees (the “Frees”) own an irrigation water right with an 1890 priority.  This right diverts water from Garner Creek to Garner Creek Ditch, where the Frees own an easement across a small portion of Charles and Barbara Tidd’s (the “Tidds”) property.  When the Tidds applied for a conditional water right to use .41 cfs for a non-consumptive hydropower use, the district court granted the declaratory judgment in favor of the Tidds, and the Colorado Supreme Court affirmed in a divided decision.

Colorado’s high court affirmed the judgment in part because the Tidds could demonstrate that their non-consumptive hydropower use would not cause injury to the senior, the Frees, while also putting the water a beneficial use.  Moreover, because the Frees’ senior water right is usufructuary and limited to irrigation purposes, the Court reasoned that the Tidds can use that .41 cfs for hydropower purposes and not disrupt the Frees’ use of the water.

The Court’s decision comports with the goal of maximizing beneficial use of Colorado’s water, while also aligning with recent pro-hydropower legislation.  The Court found that hydropower is a legitimate beneficial use under state law because its environmental impacts are minimal and do not require building dams or reservoirs.  Hydropower also diverts less water and is less vulnerable to blackouts and damage caused by storms.  Given these advantages,  small hydropower is attract both developers and policymakers alike.

Now, by issuing the Frees decision that allows a junior conditional water right to utilize preexisting senior water rights for hydropower purposes, the Colorado Supreme Court essentially gave a green light to small hydropower development.  Developers can now easily acquire junior conditional water rights of flows over developers’ property, so long as they can show no injury to the senior water right holder and that the water will be used for hydropower and then returned for the senior water right holder’s use.

Legislative streamlining and the Frees decision could potentially affect 315 individual water rights in Colorado. Ditches are the largest potential source of flows (at about 4,000 cfs) to support hydropower projects, and Montrose and Mesa counties could potentially hold the largest sources for hydropower flows.

However, as the dissent in Frees discussed, some unfortunate ramifications could result from this otherwise less environmentally invasive and strategically streamlined plan.  The dissent proposed the hypothetical of the Frees desiring to change their point of diversion.  This would potentially injure the junior water rights holders, the Tidds.  If this were to happen, a court would have to balance the interests of the Frees and the Tidds so that both parties can reasonably enjoy their water rights conjunctively.  In essence, the dissent argued, the Frees might not be able to unilaterally move their point of diversion, despite an 1890 priority date.

Although these junior, nonconsumptive rights are small (less than five megawatts), the amount of junior water rights available under this new rule in Colorado could lead to unforeseen consequences.  For example, as laid out in University of Denver School of Law student Christopher Ainscough’s recent law review article, the situation is much more complex if, instead of one senior water right holder, multiple seniors are involved.  Aincough’s article also considered the potentially damaging environmental and legal consequences of setting up multiple small-scale hydropower plants every half-mile along the Colorado River.

Further, the Frees dissent argued that the majority intruded into legislative policy and decision-making and did not consider the consequences of the decision. This is exactly what Ainscough warns of: the potentially chaotic results of the influential decision.


While proponents of the Frees decision boast allowing hydropower as a less environmentally damaging alternative than dams and reservoirs and an economically feasible way for developers to utilize water, the impact the case may pose for future water and senior water rights holders could be detrimental to waterways. A seemingly harmless judicial decision for the Frees and Tidd families, a decision that puts the finishing touches on the speedway toward hydropower in Colorado, could create quite the traffic jam as policymakers and water courts figure out how to work in its aftermath.

Kelsey Holder

Image: Fuji Speedway at the base of Mount Fuji in Japan. Flickr User Alexander Nie, Creative Commons.


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Wrenches, piping, transport trucks, and hoses. These are the tools of thieves in the American West of the Twentieth Century, and stealing televisions, cars, or wallets may not have the appeal it once did for a previous generation. Water, an increasingly in-demand resource, has replaced those quick moneymakers of yesterday as the new liquid gold quickly climbs the ranks as one of the hotbeds of theft activity across the country.

A bizarre incident in October 2016 in the small town of Erie brought to light the situation of water theft in Colorado. Thieves pumped out 100,000 gallons from a rental residence, equivalent to 2000 full bathtubs of water. The rental house owner became aware of her booming water bills after a four-month period of unnoticed automatic payments that were racking up significant charges. Once she realized the issue could be more than just a leaky faucet, she taped off the faucet, removed the handle, and shut off the valve under the house. Someone returned and removed the tape from the faucet, and when nothing came out they moved their efforts elsewhere. The water bill returned to normal charges, and police continue to investigate the issue.

As the United States passed its fifth year of less-than-average precipitation, and California’s third year of a declared drought state of emergency, Americans’ water usage must be monitored much more closely than in previous years. Besides the obvious health-related uses of water, we utilize water in agriculture, energy production, navigation, recreation, and manufacturing fields. Without the close examination of water distribution and usage, the effects of climate change could create real issues for each of these industries. And as the general public begins to become more aware of the scarcity—and thus value—of water, the number of water theft incidents throughout the country have also continued to grow.

In light of the increase of smuggling incidents, The Brookings Institution recently published a report analyzing the phenomenon of water theft across the globe. The report not only compares recent incidents of theft in various countries to identify multiple causes, but it also addresses the problems of defining what is water theft in the context of water as a human right and the various ways different countries approach water as a resource. Ultimately the report’s author calls for a wide range of measures to address the underlying causes behind water theft globally, one of which is stricter monitoring and enforcement in the allocation and use of water rights—while still recognizing that basic access to water for the poor is a necessity. The report suggests that punitive damages would help protect against increasing water scarcity, and a uniform set of laws or regulations could help to solve the issue in the future.

This fundamental disregard of enforcement or creation of laws may be one reason why the United States is starting to see so many of the same types of issues occurring so regularly. Without the uniformity of a system of water management, each local entity or state entity is required to create their own form of regulation and enforcement. As a result of this, the country has seen a variety of issues popping up, especially in places where water scarcity is a fear.

The incident in Erie has been repeated in a myriad of ways, not only in the West, but across the country. In New York for example, a small city’s mayor was accused of stealing water in 2004 by loosening the screws on his meter when he was overusing. In south Atlanta during the month of October in 2015, 160 people faced charges of water theft. All of these incidents involved tampering with the water meter or valves installed in the residence’s water box. One man, caught three times removing his service company issued meter, decided to install a pipe running to his house from his neighbor’s water meter box. The other incidents involved refusing to pay for water, stealing from neighbors, removing meters, or installing joiner pipes to trick the meter from measuring complete water usage.

In California and the Midwest, the drought has contributed to wells drying up. Some people, in response, decide to build a new well or pay to have water delivered by truck. Other people, however, have turned to taking water from neighboring wells that have not gone dry as a much cheaper and easier approach.

In addition to these household, private theft issues, there have also been instances of people stealing from public water sources. In March of 2016 in Boulder, a pair of men who worked for a ditch company had a permit allowing them to divert a certain amount of water for agricultural use. They applied for the permit using their work information, but took the water from the permit by truckload to sell at a complete upcharge to fracking companies. In Washington, water theft from fire hydrants caused loss of an estimated $145 million around the state in July 2016. People would hook up a hose to the hydrant and pump the water into trucks to be transported elsewhere. This is hazardous because hydrants could potentially deplete the water from the reservoirs. Firefighters, unless they are consistently checking the hydrants, would find out they were out of water only when they went to turn the hose on to fight a fire.

As the interest in the cannabis industry grows, so does the need for water by marijuana grow operations. This demand has inspired many water thieves to sell to black market grow houses across the West. These occurrences have taken place around the state, but most recently and most detrimentally, in the San Luis Valley in Colorado during August 2015. According to local officials the majority of the theft was happening in Costilla County, a county that requires grow operations to obtain local permits. The permits require the operators to disclose their water source because these cultivation endeavors require a large amount of water to operate. If grow operations continue to grow without a local permit, finding a source of legally obtained water is not typically economically attainable. In cases where medical or recreational grow operations cannot locate a legal water source, the operation does not typically cease operations, it finds a legally illegitimate water source and continues to operate as an unlicensed entity.

Another reason Costilla County was so popular with water thieves during this time was because of the price of land. Cheap land encouraged those looking to acquire monthly camping or RV permits to move in and “go off the grid”. These outsiders then are required to obtain a water and septic system, and are often unable to find a cheap, legal source of water to supply to their new homesteads. This causes many newcomers to turn to non-legal sources in order to stay in compliance with the county’s rules, a practice causing many of the locals to come into conflict with these new communities. The most prominent ways of stealing water in Costilla County were from private wells, community irrigation ditches, and local streams.

Thieves continue to draw up new ways to steal water from public spaces or neighbors, and there is no sign of it slowing. Thieves caught in the act of pumping from a stream or community water source are only required to obtain a permit in most states, and they can continue to pump without any fines or legal actions taken against them. Many household cases are never solved because water theft recidivism rates for the same source is low once necessary preventative actions are taken by the owner. For those who have a legal permit to use water, it is an issue of monitoring usage. People who do have permits are required to report usage, but in many cases they are trusted with self-policing their usage. This results in the temptation to utilize more water than originally allocated, or to utilize the water for additional operations than originally applied for. The enforcement of punishments is seemingly low across the nation as many water divisions do not completely know when or how to get law enforcement involved. The best thing that cities and individuals can do is take extra steps to prevent theft within their own water rights, and be more proactive in their security initiatives.

There has not been a proven way to completely prevent these kinds of acts of theft besides alerting the community and taking initiative to report any suspicious activity involving water trucks or piping. Victims of water theft have prevented future loss by purchasing bib locks or lock boxes and securing them over openings to wells, meters or any other potential access point to private water sources. Although this may seem excessive to some, it is undisputedly better than opening a water bill for hundreds of dollars more than expected, and subsequently defending your reputation to the court.

These water savvy thieves continue to map out new, complex ways to make a quick buck off water that is not theirs. This issue is heightened now more than ever not only because of the state of drought, but because of the unpredictable affects climate change is on water supplies. Scientists predict the increase in demand of water will come with the decrease of supply and the quality of supply. The recent increase in water thefts only add another unknown variable to a water future that is projected to be more dry and less predictable.


Rebecca Spence

Image: Flickr User ZeroOne, Creative Commons.


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