Annual Symposium 2017: At The Confluence: The Past, Present, and Future of Water Law

Denver, Colorado                         April 7, 2017

“To be a Coloradan, What Water Means?” Keynote Presentation by Ken Salazar, Former U.S. Secretary of the Interior and U.S. Senator

 

At the 2017 University of Denver Water Law Review Symposium in Denver Colorado, former United States Secretary of the Interior, Ken Salazar, offered his insight into what water means as a Coloradan.

Secretary Salazar began with how his history has defined what water means to him. His family has farmed and ranched the soils of the Rio Grande and its tributaries in the San Luis Valley since 1598. His family had priority number twenty-three out of the Rio San Antonio, and good and bad years affected his family’s crop. Secretary Salazar said he did not grow up rich, but he grew up surrounded by the Sangre de Cristo and San Juan mountains and the Rio Grande and Rio San Antonio. A lot of the divine providence that guided him through the experiences of serving the people of Colorado and the United States he said started in the San Luis Valley where he learned about the nexus between humans and the planet on which we survive.

Secretary Salazar applauded Colorado for being a pioneer in dealing with water issues, but warned that the state still has a long way to go. Colorado pioneered the doctrine of Prior Appropriation, which, despite criticism, has changed and evolved to become a working system. Other historic examples of where Colorado led the way include Colorado’s efforts to integrate ground and surface water uses in the 1960s and Colorado’s creation of the Instream Flow Program in the 1970s.

Secretary Salazar next identified two major water-related challenges facing Colorado: population growth and climate change. Colorado’s population is expected to nearly double in the next forty years. The challenge Colorado faces is how to supply those additional people and still preserve the open spaces its citizens have come to love. Secretary Salazar also briefly addressed climate change. According to projections, the Colorado River and the Rio Grande basins can expect to see a significant reduction in precipitation. So, as environmental demands increase, Secretary Salazar is hopeful that society will continue to recognize the importance of protecting and restoring America’s ecosystems.

In the face of such challenges, Secretary Salazar said it is important to look back on stories where Colorado has been successful. For example, he recounted a story from 1990 when he was head of Colorado’s Department of Natural Resources. California, in the midst of a severe drought, was preparing to litigate some of the miscalculations made during the drafting of the Colorado River Compact hoping to get a greater share of the water supply. Secretary Salazar oversaw a group of Colorado officials tasked with responding to California. Just when all hell seemed ready to break loose, Secretary Salazar and the group decided to send an olive-branch in the form of a letter. In that February 21, 1991 letter, which Secretary Salazar authored and Governor Roy Romer sent to Governor Pete Wilson of California, Colorado offered to collaborate. It said Colorado understood California’s needs, and that it was willing to work with the other Colorado River basin states and the federal government to assure that California would make it through the drought. However, the letter also indicated that Colorado wanted to be sure that any ensuing agreements were addressed within the Law of the River and that the framework of the law not be changed. A quarter century later, the February letter has stood the test of time and set a precedent for collaboration among the Colorado River basin states, the federal government, and the nation of Mexico. So, if collaboration was possible on such a litigated river, then it is possible that the tradition of collaboration might continue in the future.

“In the West, when you touch water, you touch everything,” concluded Secretary Salazar, quoting the late Congressman from Colorado, Wayne Aspinall. This is true today, and will remain true in the future. So, in looking for solutions, Secretary Salazar urged the audience to look back at the past to provide lessons for the present.

After sharing his insight, Secretary Salazar provided the symposium with an opportunity for questions, during which time the symposium raised four matters: the Sangre de Cristo mountains; the 1872 Mining Law; the Senate’s recent decision to exercise the “nuclear” option for confirming Supreme Court nominee Neil Gorsuch; and, Secretary Salazar’s opinion of current Secretary of the Interior, Ryan Zinke.

Secretary Salazar finished his keynote address with a message of hope. He said that even though nothing is certain because of the current presidential administration, the United States is a strong nation and a strong democracy. Time will pass and there will be new leaders. Climate change is not going away, it is an existential issue with which someone will have to grapple. Secretary Salazar pointed to energy innovation by the private sector and explained that he is not despairing. There will be a 2020 and a 2024. The United States of America has the capacity to grapple with these tough issues that affect Colorado, the nation, and the planet.

Trevor C. Lambirth


Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017) (holding: (i) the United States impliedly reserved a water right when establishing the Agua Caliente Reservation; (ii) the Tribe’s implied federal reserved water right extended to groundwater; and (iii) the Tribe’s state water entitlements to groundwater did not disqualify its implied federal reserved water right).

The Agua Caliente Band of Cahuilla Indians (“Tribe”) inhabited the Coachella Valley prior to California’s Admission to the Union in 1850. Two Presidential Executive Orders issued in 1876 and 1877 established the majority of the Agua Caliente Reservation. Today, the United States holds a series of lands that that are “interspersed in a checkerboard pattern” in trust for the Tribe.

The Coachella Valley contains an arid southwestern dessert. Rainfall averages three to six inches per year and the Whitewater River System, the only source of surface water, produces a fluctuating annual supply between 4,000 and 9,000 acre-feet that primarily occurs in winter months. Currently, the Tribe receives surface water from the Whitewater River System consistent with the Whitewater River Decree, a 1983 California Superior Court adjudication that addressed state-law water rights for river system users. The adjudication resulted in a state court order that allotted water for the Tribe’s benefit, primarily because the United States, as holder of partial Agua Caliente Reservation lands in trust, participated in the adjudication on the Tribe’s behalf. However, the adjudication reserves only a minimal amount of water for the Tribe, providing enough to irrigate nearly 360 acres of the reservation’s approximately 31,369 acres. Additionally, the river system peaks in the winter months, which leaves the allotment filled outside of growing season.

This inconsistent and “virtually nonexistent” surface water supply causes the Tribe to predominantly rely on groundwater for all consumptive use on the reservation during the year. Therefore, almost all regional water is sourced from the Coachella Valley Groundwater River Basin, the aquifer underlying the valley. The Tribe, however, does not pump groundwater on its reservation, but purchases groundwater from the Coachella Valley Water District and the Desert Water Agency (“water agencies”).

Over concern for diminishing groundwater resources, the Tribe filed an action for declaratory and injunctive relief against the water agencies in the United States District Court for the Central District of California. The Tribe requested a declaration that it had a “federally reserved right and an aboriginal right to the groundwater underlying the reservation.” The district court later granted the United States’ motion to intervene as a plaintiff to support the Tribe’s allegation that it had a reserved right to groundwater.

The parties divided the litigation into three phases. With respect to Phase I, the only phase relevant for this case, the district court held that “the reserved rights doctrine applied to groundwater and that the United States reserved appurtenant groundwater when it established the Tribe’s reservation.” Subsequently, the district court certified its order for interlocutory appeal and the water agencies petitioned the Ninth Circuit Court of Appeals for permission to hear the appeal. The court, on de novo review, addressed the only issue on appeal: whether the Tribe had a federal reserved right to the groundwater underlying its reservation. In so doing, the court approached its analysis in three steps.

First, the court determined whether the United States impliedly reserved water when establishing the Agua Caliente Reservation. This question is two-pronged: (1) whether water is reserved if a reservation’s primary purpose anticipates water use; and (2) if so, whether the Agua Caliente Reservation’s primary purpose contemplated water use.

The court began its analysis by examining the Winters doctrine, and found that it established that “federal reserved water rights are directly applicable ‘to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.’” However, the Winters doctrine is limited to certain situations; it reserves water necessary to accomplish the purported means of the reservation and reserves water if it is appurtenant to the withdrawn land. Following that understanding, the court differentiated the parties’ and the district court’s application of the Winters doctrine that specifically addressed whether the Tribe’s reserved right extended to groundwater from the more overarching issue concerning whether the mere existence of a federal reserved right depended on the Agua Caliente Reservation maintaining an implicit right to use water.

The court then evaluated the first prong when addressing the Tribe’s implied reserved right to water. The court invoked United States v. New Mexico and reasoned, “the federal purpose for which land was reserved is the driving force behind the reserved rights doctrine.” Further, that the New Mexico Court patterned a consistent conclusion whenever the reserved water rights doctrine is raised—an insufficient water supply defeats the purposes of the reservation. Therefore, the court adopted New Mexico’s holding that water is reserved when the reservation’s primary purpose foresees water use. The court then evaluated the second prong, whether the Tribe’s primary purpose contemplated water use. To answer this question, the court synthesized the Executive Orders establishing the Agua Caliente Reservation and Supreme Court precedent to conclude that “the primary purpose underlying the establishment of the reservation was to create a home for the Tribe, and water was necessarily implicated in that purpose.” Therefore, the United States impliedly reserved water for the Tribe.

Second, the court addressed whether the Tribe’s implied reserved water right extended to the Agua Caliente Reservation’s underlying groundwater. The court reiterated the Winters doctrine requirements and determined that although the Tribe met the first requirement that the reservation’s purported means necessitated water use, the second requirement that unappropriated water must be appurtenant to the reservation remained. To find a resolution, the court reasoned that appurtenance is not limited to surface water and extrapolated from Supreme Court precedent that the United States can protect groundwater and, along that vein, impliedly reserved water may include appurtenant groundwater. Further, the court considered the Tribe’s reliance on groundwater when reasoning that the minimal surface water availability conditions the Tribe’s survival on groundwater access. From this line of reasoning, the court clarified that the Winters doctrine purported to provide sustainable livelihoods to Tribes inhabiting reservations in arid areas, like the Agua Caliente Reservation, and included access to both appurtenant surface water and groundwater. Therefore, the Tribe’s implied reserved water right included groundwater.

Third, the court addressed whether the above two holdings withstood the water agencies’ arguments that: (1) the Tribe received water pursuant to California’s correlative rights doctrine; (2) the Tribe did not need a federal reserved right to groundwater in light of its allotted surface water from the Whitewater River Decree; and (3) the Tribe never drilled for groundwater on its reservation. The court rejected each in turn. First, federal water rights, such as the implied federal reserved water right, preempt state water rights. Second, New Mexico did not inquire into the current necessity of water, it focused on whether the reservation’s inception purported such a necessity. Third, lacking historical access to groundwater on the reservation did not foreclose the Tribe’s current access to groundwater. Therefore, compounded with the federal primacy of reserved water rights, the Tribe’s implied federal water right to groundwater remained intact.

Accordingly, the court affirmed the district court holding that the United States impliedly reserved appurtenant groundwater when creating the Agua Caliente Reservation.

                                                                                                        Gia Austin

Image: Santa Rosa and San Jacinto Mountains National Monument, California. Flickr User Bureau of Land Management, Creative Commons.


The highly-anticipated EPA study “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States” (“study”) released in December 2016, sent shockwaves through media outlets due to a change in the language of the study’s major finding from the draft version that emerged in June 2015. The 2015 draft stated that the EPA “did not find evidence that” fracking mechanisms “have led to widespread, systematic impacts on drinking water in the United States.” In contrast, the new study revealed conclusions that describe “how activities in the hydraulic fracturing water cycle can impact—and have impacted—drinking water resources and the factors that influence the frequency and severity of those impacts.”

Because ambiguity in the study’s findings can be construed to support different sides, the study provides fuel for both anti-fracking activists and industry supporters. Nevertheless, the study also provides scientific insight into the process that can be used by state and local policy makers to create tailored regulations to mitigate potential water contamination risks. Thus far, the federal government has not passed any legislation directly addressing fracking, so much of the regulation has been left to state and local governments. Further, with the new administration’s plans to reduce the size of the EPA and roll back environmental regulation, state and local governments will likely continue to be the major source of fracking regulation.

The study provides local governments with much needed data about when risks of contamination are greatest and the factors that contribute to the occurrence and severity of contamination. Local governments can use the data to create targeted mitigation procedures and regulations to ensure that cheap energy sources can continue to be tapped while protecting valuable drinking water resources.

 

The Study

The goal of the EPA’s study was to assess the potential for activities in the fracking water cycled to impact the quality and quantity of drinking water, and identify factors that affect the frequency and severity of those impacts. The study broke down the fracking water cycle into five stages to examine the potential for contamination of drinking water during each stage. The stages and activities of the fracking water cycle are: (1) water acquisition; (2) chemical mixing; (3) well injection; (4) produced water handling; and (5) wastewater disposal and reuse. Each step will be summarized in turn along with policy recommendations.

 

Water Acquisition

Water acquisition is the first stage in the fracking process where ground water is withdrawn or surface water is transferred to make fracking fluids. The study found that fracking uses a small percentage of water relative to total water use with some notable exceptions. Notable for state and local governments, the EPA concluded that, despite fracking using a relatively small percentage of water, fracking water withdrawals can affect the quantity and quality of drinking water resources by changing the balance between other local demands. The EPA found that water management strategies could be used to reduce the frequency and severity of such impacts.

To address water acquisition concerns, local governments should explore alternative sources to be used for fracking in order to preserve freshwater resources for other uses. Incentivizing the recycling of produced water and tapping alternative resources such as brackish water to be used in the fracking process would mitigate the impact that fracking water acquisition has on local resources.

 

Chemical Mixing

Chemical mixing is the stage in the fracking process where water is mixed with sand, proppants, and other additives at the wellsite in preparation for injection. The EPA found that spills of fracking fluid and additives during chemical mixing have reached surface water resources in some cases and have the potential to reach ground water resources. Large volume spills have the greatest potential to reach ground water resources, and highly concentrated spills have the potential to most severely impact drinking water resources. Naturally, large volume spills have the potential to increase the frequency of impacts on drinking water, and groundwater impacts would likely be more severe than surface water impacts given that it is generally difficult to remove chemicals from groundwater resources.

Chemical mixing concerns require regulations to mitigate the potential for spills, especially when large volumes or highly concentrated mixtures are being handled. The oil and gas industry could play a major role in spill mitigation by adopting standard mixing and handling procedures.

 

Well Injection

Well injection is the point in the water cycle when fracking fluids are injected into a production well in order to free oil and gas molecules from the targeted rock formation. The EPA found that water in the injection stage has impacted drinking water resources due to mechanical failures that have allowed gases or liquids to move to underground drinking water resources. The study highlighted the importance of the distance of vertical separation between the targeted rock formation and drinking water resources by highlighting cases of contamination where little or no vertical separation existed between the targeted formation and drinking water resources existed.groundwater in Pavillion, Wyoming.

Geological surveying can be used to analyze whether adequate vertical separation exists between the targeted formation and drinking water resources. However, this is a limitation identified by the study because most of the geological information is proprietary to the operator and is not readily searchable by the public. The study asserts that the presence of casing, cement, and thousands of feet of rock between drinking water and the target formation can reduce the frequency or impacts during the water injection stage. However, when inadequate vertical separation exists, local governments should impose permitting requirements based on environmental impacts studies in order to mitigate instances of contamination during the well injection stage. Additionally, casing and cement integrity should be monitored before and after injection, and pressure should be monitored to ensure that the barriers did not fail during the process.

 

Produced Water Handling 

Produced water handling is the stage when water returns to the surface after fracking and is transported for disposal or reuse. The EPA found that spills of produced water during the water handling stage have reached groundwater and surface water resources in some cases. Like water spilled in the mixing stage, large volume spills have higher potential of reaching groundwater resources. Furthermore, the saline produced water can potentially migrate through soil into groundwater resources, leading to longer-term groundwater contamination.

As with mixing concerns, produced water handling impacts can be mitigated by enforcing standardized collection and handling procedures. Minimizing human error could greatly reduce the frequency and severity of spills while handling produced water. Also, creation of response mitigation plans for when spills do occur would reduce the severity of impact from spills.

 

Wastewater Disposal

The wastewater disposal and reuse stage typically involves the injection of produced water into disposal wells. Water is sometimes disposed of by using evaporation ponds and percolation pits also. Wastewater is sometimes put to beneficial uses such as irrigation if the quality is high enough, or it can be treated at water treatment facilities and discharged into surface water resources. Additionally, an increasing percentage of produced water has been reused in the fracking process. The EPA found that aboveground disposal of fracking water has impacted the groundwater and surface water in some instances, particularly where water was inadequately treated before discharge into surface water resources. Disposal in lined and unlined pits has also impacted groundwater and surface water resources, particularly because unlined pits provide a direct pathway for contaminants to reach groundwater. The EPA also noted that disposal wells have been associated with earthquakes in several states, thus reducing the availability of their use.

Each method of disposal and reuse presents unique problems that require collaboration between the industry and local governments. Increasing the availability of water treatment facilities is an attractive solution, because treated water could in turn be used for other beneficial uses. However, treatment is expensive and would likely require public and industry investment. The potential to turn produced water into useable water could help Colorado communities that have growing domestic needs as well as growing industrial needs meet their growing water demands. Funding mechanisms such as tax-exempt bonds, public improvement fees, or tax increment financing could be used get water treatment facilities built. Additionally, depending on which entity would have the legal rights to the newly cleaned water, water could be sold on the open market to help service the debt that was incurred by the entity to build the facility.

 

Conclusion

In conclusion, fracking continues to play a vital role in helping the United States achieve its energy goals. The study provides an initial roadmap of areas for local governments to target potential risks of drinking water contamination during the fracking process in a meaningful way. The study has set local governments up to create targeted mitigation procedures and regulations to ensure that cheap energy sources can continue to be tapped while protecting valuable drinking water resources.

Dalton Kelley

Sources

Envtl. Prot. Agency, Draft: Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (June 2015), https://www.epa.gov/sites/production/files/2015-06/documents/hf_es_erd_jun2015.pdf.

Coral Davenport, Reversing Course, E.P.A. Says Fracking Can Contaminate Drinking Water, The New York Times (Dec. 13, 2016),

https://www.nytimes.com/2016/12/13/us/reversing-course-epa-says-fracking-can-contaminate-drinking-water.html.

Timothy Cama, Trump Team Plans Big Cuts at EPA, The Hill (Jan. 23, 2017, 9:57 AM),

http://thehill.com/policy/energy-environment/315607-trump-team-plans-big-cuts-at-epa.

Envtl. Prot. Agency, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (Dec. 2016), http://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=530159.

 

Image: A natural gas drilling rig on the Pinedale Anticline, just west of Wyoming’s Wind River Range. WikiCommons user Bureau of Land Management, Creative Commons.”


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

The Citizens of Rockaway Beach, Oregon—How One Community Started to Fight for Their Drinking Water, and Ended Up Fighting for Us All

 

Presented by: Nancy Webster, Citizens for Rockaway Beach Watershed Protection; Kate Taylor, Frigate Adventure Travel; Steve Perry, Citizens for Rockaway Beach Watershed Protection; Jason Gonzales, Oregon Wild.

This panel featured citizens of Rockaway Beach, Oregon who experienced the destruction of their local watersheds by clearcutting. The panelists spoke about their experiences throughout the clearcutting process, including their frustrations with inaction from both the local and state governments.

Rockaway Beach, a small town on the northern Oregon coast, relies on Jetty Creek for its freshwater supply. One panelist described the creek as “a crevice between hills, but it’s our lifeline.” Yet, from 2003–2014, timber companies removed eighty-two percent of the trees around Jetty Creek. Overall, timber companies have removed ninety percent of the trees from Jetty Creek. Often, these companies performed aerial sprays of “chemical cocktails” over the trees before and after clearcutting. The State of Oregon does not require timber companies to release information about what chemicals these sprays contain, nor does the state provide notice to locals before sprays occur. The Oregon Forestry Practices Act contains almost no requirements for watershed protection. Furthermore, the City of Rockaway Beach, the municipality with regulatory authority of Jetty Creek, does not require any notification or information on the contents of chemicals.

The combination of a lack of regulatory oversight and an acquiescence to the timber industry has effectively ruined Jetty Creek. Since clearcutting began, levels of trihalomethanes in Jetty Creek have rapidly increased and are far beyond the EPA’s suggested levels. The turbidity of Jetty Creek has also increased, reducing fish populations. Further, logging has negatively impacted bird and beaver populations, forcing animals away from an otherwise seemingly wild landscape and creating a the appearance of a “Silent Spring.” The reduced water quality has also forced Rockaway Beach residents to drink from packaged water bottles. Some residents keep water dispensers in their homes. This is the only alternative the City of Rockaway Beach has to Jetty Creek, as leaky septic systems and percolating seawater have made the area’s groundwater unsafe for consumption.

These are not the only problems that locals have experienced at the hands of the timber industry. Panelist Kate Taylor, for example, commented on how the logging negatively impacts water-tourism. Taylor is a professional fishing guide who works in the area, and she recounted the negative experiences her customers have when the river they are fishing turn to “chocolate mud” because of nearby logging. When she asked the Oregon Department of Forestry about this issue, the agency became “defensive” and did not assist her. Taylor’s experience mirrored the other panelists’ struggles to bring their issues to the attention of city, county, and state government officials.

When the panelists initially sought to confront the issue, they approached their local, municipal governments, but the Rockaway Beach City Council rejected all efforts against the timber industry. The panelists believed the city is clinging on to a cultural string, instead of supporting local economic growth. After inaction by the local government, the citizens turned to the state. The state responded without any tangible policy change. The state, like the local government, seemed too tied to the cultural idea Oregon’s logging industry. This steadfast protection of the timber industry does not produce economic gain. For example, logging companies are not allowed to perform aerial chemical sprays on federal lands in Oregon. The state’s use of aerial chemical sprays is simply a concession to the industry.

Frustrated with the state and city, the citizens performed “citizen science” to prove to regulators that the logging industry has been negatively affecting watersheds. Through citizen action, the panelists and other members of the public have created a series of legislative proposals to limit aerial spraying in the timber industry. Oregon Democratic State Senator Michael E. Dembrow recently sponsored Senate Bill 892, also known as “The Timber Aerial Spray Right to Know” Bill. This bill was accompanied by Senate Bill 500, which provides agriculturalists with a cause of action for damages resulting from timber companies that conduct aerial sprays.

Overall, any short-term gains in the legislature will prove insufficient. The panelists warned that other parts of the Oregon coast, notably Short Sands Beach, are in imminent danger of succumbing to the same fate as Jetty Creek. The only true way to prevent watershed destruction in Oregon, the panelists contended, is to fundamentally reshape the state’s approach to the timber industry.

Matthew Kilby

Image: Sunset on Rockaway Beach, Oregon.  Flickr user Jake Melara, Creative Commons.


35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

Agricultural Water Conservation: Is It Really So Simple?

 

Jan Newman from Tonkon Torp, LLP moderated the panel discussion on water law issues as it relates to agricultural water conservation. The panel featured three distinguished speakers who contributed their views and experience in water conservation as it relates to agricultural development in the United States. The speakers were James Eklund, outgoing Director of the Colorado Water Conservation Board, Warren H. Peterson, Vice President of Farmland Reserve, Inc. headquartered in Salt Lake City, Utah, and Adam Schempp, Director of the Western Water Program at the Environmental Law Institute in Washington, D.C. The main theme of the panel was whether traditional water law doctrines, such as prior appropriation—“first in time, first in right”—and beneficial use promote water conservation efforts.

Adam Schempp began the panel with a general overview of the challenges western water users face, and the possible solutions to these challenges. Water conservation efforts are restricted by the physical geography of the arid western landscape where sources of surface water and groundwater are intrinsically bound by the layout of the land. There are also inconsistencies in the legal doctrines each state legislature uses as a basis for developing their own water laws. Economic considerations also shape conservation efforts in the various western states. Schempp noted that water conservation is a complex topic, and there are a multitude of issues and considerations in each of the three broad categories described above.

Next, Warren Peterson discussed his views on water conservation efforts based on his work and experience in the Utah water law landscape. Peterson believes that water conservation is always a question that revolves around the reallocation of resources: how much water may be retrieved or preserved after use. He suggested that the best way to promote agricultural water conservation is for farmers to utilize more efficient irrigation techniques. Science and technology are friends of water conservation, and creative new irrigation systems could drastically decrease the total amount of water needed for crops as well as increase the amount of reallocated water leftover after use. To illustrate his point, Peterson presented a quick case study about the hydrology of Utah’s Sevier River and the effects of water appropriation for agricultural and urban use on the river system.

James Eklund followed Peterson’s discussion with his insights regarding the state of water conservation in Colorado. Eklund began by noting that Colorado is home to two of the world’s top eighteen most stressed river basins. This designation is probably the result of the unique physical landscape within the state of Colorado. With a map of Colorado and the surrounding states as a visual reference, Eklund pointed to the fact that Colorado is separated into two distinct regions: the water rich western area and the water poor eastern area. Not only that, many of Colorado’s water sources flow out of the state without having a significant amount of water sources flowing in. Tension between water users from the two regions has shaped the history of water law in Colorado. This tension between the two regions is exacerbated by Colorado’s geographical dichotomy as the western regions of Colorado has a low population and is primarily rural agricultural, and the eastern regions of Colorado has a high population and is generally urban. Furthermore, the urban population in the eastern regions of Colorado has increased drastically in recent years. Such a growth puts pressure on the state to allocate enough water to supply the urban populations. This kind of water allocation negatively impacts water rights holders residing in western Colorado. The political battle between the agricultural west and the urban east is constant and greatly affects statewide water use planning and conservation efforts.

After Eklund’s overview on the nature of Colorado’s water infrastructure, Schempp gave a brief conclusion to summarize the panel discussion. Schempp emphasized the primary purpose of water conservation – to return more water to the stream or, alternatively, to maintain a higher volume of water flowing in stream. The key to water conservation is not to reduce the amount water rights holders may use but rather to use the amount of water they already have in more efficient ways so as to promote a higher return of water to the stream. Current agricultural water conservation projects have mostly been tested on a smaller scale, with individual private farmers. But the results have been positive and overall very promising. Schempp ended the discussion by characterizing successful water conservation as a collaborative effort; states must work together to change laws that are outdated and outmoded, implement new technology and innovative strategies to promote water conservation, and give farmers incentives to utilize their water more efficiently and to produce less waste.

Tina Xu

 

Image: A field of flowers surround a sprinkler irrigation system in Oregon. Flickr user Ian Sane, Creative Commons.

 


Annual Symposium 2017: At The Confluence: The Past, Present, and Future of Water Law

Denver, Colorado                         April 7, 2017

Science and the Courtroom: How Modeling Is Changing The Game

 

Meg Frantz, an engineer at Brown & Caldwell, moderated this panel discussion on science, data, and math modeling in water law. The panel featured: Dick Wolfe, State Engineer & Director of the Colorado Division of Water Resources; Chris Sanchez, a Hydrogeologist at Bishop-Brogden & Associates, Inc,; and Burke W. Griggs, visiting professor at Washburn University School of Law.

Chris Sanchez, who has testified in the Division 1 Water Court providing expert testimony about water, oil, and gas rules, offered a view from the perspective of an engineer and spoke about the difficulties related to communication especially with the more technical aspects of hydrology and water law. Sanchez also spoke about the varying accuracy models have in accounting for the interaction between groundwater and surface water. He indicated that current models can account for surface water fairly easy, but using models to make predictions about groundwater is much more difficult because there are still many unknowns and missing information in the field of groundwater modeling. Complicating this issue is that groundwater moves slowly and that some aquifers are buried and can be shallower, deeper, or more connected than others.

Moreover, Mr. Sanchez said that the impacts of groundwater wells on these aquifers and streams is also hard to predict because of all the variables and inputs involved, including the fact that aquifer depletion continues after the pumping stops. Mr. Sanchez’s said that the ground-surface water interaction is determined by the attributes of that individual, which are not always easily to isolate for the purposes of modeling. Next, Mr. Sanchez explored some of the different models used in many courtrooms—such as Modflow and others based on Glover inputs—before discussing communication and cultural issues in the world of water law. From the perspective of an engineer, Mr. Sanchez expressed that it is not always easy to communicate the technical work he does even to skilled attorneys and consultants. He continued on this theme and said that it was even more difficult to defend the models and work that water engineers do in court. He elaborated on the difference in the kind of testimony required when he appears in front of a water court judge or in front of a jury.

Dick Wolfe also offered an engineer’s perspective. Mr. Wolfe has been Colorado’s State Engineer for the Division of Water Resources for the last ten years. Mr. Wolfe spoke about the use of groundwater models in intra/interstate litigation and advocated for developing models for purposes other than litigation. However, Mr. Wolfe also discussed the importance challenging current groundwater models through litigation because states cannot manage what they cannot measure accurately. Mr. Wolfe pointed out the practical use of models in helping to develop rules, then later the operational plans based on these rules. He gave three instances of models being used in this way: creating irrigation rules in Arkansas River Basin, creating Compact compliance rules in the Republican River Basin, and in developing the Rio Grande Aquifer new-use rules in the Rio Grande decision support system. However, Mr. Wolfe explained that these models took a long time to create and were fairly expensive. But, this was not a recommendation to stop using models because Mr. Wolfe also emphasized the importance of science leading the way in policymaking and ensuring that the state legislature bases new laws on science and reality, not mere speculation.

Dr. Burke Griggs, a lawyer and professor at the Washburn University School of Law, provided an overview of some of the most contentious litigation between states over water-related issues. For example, Dr. Griggs talked at length about the Daubert motions for expert witness testimony in a case where Kansas sued Colorado. He emphasized the common practice of relying on their one’s own experts with their own models to make their case. He characterized this situation as being a “battle of the experts” and discussed the cultural differences that can arise when lawyers interact with engineers and other water resource professionals. Dr. Griggs also explored how the federal government can assist states by creating models used in litigation. For example, he said the USGS can help states develop more expansive Modflow models and pointed to a federally funded groundwater analysis used when a dispute arose between Mississippi and Tennessee. Dr. Griggs’ point was that federal funding has really helped modeling because without the funds from federal agencies, creating models is much more difficult for individual litigants.

Members of the panel followed their remarks by answering questions from the audience. In responding to the question of how to resolve the tension between legal and engineering cultures, panelists said that having proper expectations, developing realistic outcomes, and acknowledging differences in the different fields were all positive ways to make headway towards increasing communication. Another audience member asked about high transactions costs for litigants and what changes can be made to reduce them. Mr. Wolfe responded to this question by pointing to Colorado’s Decision Support System, a program that allows for anyone to browse a wide range of water-related databases and records, and explaining that it has made a lot of progress towards reducing these costs through increasing transparency.

Next, an audience member asked whether there could be a risk of repression of these models as there currently has been with climate change data. Panelists answered that models are relatively insulated from data repression by an unfriendly federal government because of the extensive framework that exists around these models and jurisdictional difficulties with the federal government trying to interfere as most models exist at the state level.

Following that question, another person asked whether water law is moving more towards a mediation-based practice and if so, if that would be any better than the current system. Mr. Dick Wolfe responded that there are problems with high transaction costs in water courts and that water judges were working to solve those issues. However, Mr. Wolfe was not entirely sure that a mediation-based model would work much more effectively than the current system, pointing to required non-binding arbitrations in the Republican River Compact that have lead to little actual progress. Alternatively, Mr. Wolfe also said that mediation has worked well in the Platte River Compact because it is more focused on species conservation.

The final question was about how to ensure courts are using the best science. The panelists responded to this by saying that water decrees have made things more complicated and that scientific tools are used on a case-by-case basis, so it is hard to know exactly what the “best” science is in an individual situation because each is so vastly different. But, they also said that the legislature can help make sure that scientists have the best tools and data that they need to present the “best” science in the courtroom through enacting legislation that enables science to continue to move forward and make more discoveries.

Gracen Short


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

California Groundwater Management

 

Presented by: Alison Divine, Community Legal Information Center, California State University, Chico.

Alison Divine discussed how the California Sustainable Groundwater Management Act of 2014 (“SGMA”) has impacted the state. Divine first discussed the history of groundwater management in California, then the general functions of SGMA, and finally how SGMA has developed during in its infancy.

California’s groundwater system is expansive. Seventy-five percent of Californians depend on groundwater, in some part, for their primary water supply. The state recognizes two types of groundwater: subterranean streams, which consist of groundwater flowing in a known and definite channel; and percolating groundwater, which a California court once eloquently described as “vagrant wandering drops [of water] moving by gravity in any and every direction along the line of least resistance.” City of Los Angeles v. Hunter, 156 Cal. 603, 607 (1909). From 1850 until 1903, California landowners possessed absolute ownership of the groundwater under their land. After 1903, California adopted a correlative rights system for groundwater use. Until 2014, California only regulated its groundwater through local agencies, groundwater ordinances, and basin adjudications.

SGMA is California’s first statewide groundwater management act, and it provides a long-term framework for sustainable management in California by requiring the establishment of Groundwater Sustainability Agencies (“GSAs”) in each county by June 30, 2017. GSAs may be formed in a variety of ways, including: (1) as local public agencies; (2) as a public water agency, county, or municipality; and (3) through a Joint Powers Agreement (“JPA”) or Memorandum of Agreement (“MOA”) between multiple agencies. Each GSA has wide authority to manage the sub-basin(s) on which it sits. GSAs may regulate groundwater well registration, measurements of groundwater extraction and metering, filing of annual reports, well spacing, and basin boundaries. GSAs may also establish sub-basins, limit groundwater extraction, and establish recharge, conjunctive management, or pumping reduction programs. However, to manage sub-basins and basins, GSAs must submit a Groundwater Sustainability Plan (“GSP”), which must include a description of the aquifer, historical data, a discussion of historical and projected water demand and supplies, a detailed map of the basin’s boundaries, and a map identifying existing and potential recharge areas. GSPs must also include a twenty-year sustainability goal, as well as a series of five-year interim milestones. GSA must submit GPS for basins designated as “high priority” by January 31, 2020 and medium priority basins by January 31, 2022.

Divine discussed how eleven counties in the Sacramento River Hydrologic Region had adapted to SGMA’s requirements by March 2017. For several of these counties, jurisdictional challenges have inhibited progress. In Sutter County alone, eight agencies of various sorts have submitted overlapping GSA applications to manage the county’s three sub-basins. Although the county contains high-priority areas, no GSP had been submitted as of the date of the presentation. Sacramento County, Glenn County, Yolo County, and Yuba County are all experiencing similar problems. With so many applications, it may be hard for these counties to come to a consensus on which GSAs to select. At the same time, however, two counties (Placer and Shasta) have received no GSA applications. Solano County has received one application but has yet to determine how to proceed.

Some counties in the Sacramento River Hydrologic Region have had more success. Colusa County, which contains ten sub-basins, has benefitted from seven GSA applicants coming together to form a JPA. Tehama County has approved a GSA comprising an eleven-member board of directors. The directors include three city representatives and three service-district representatives, as well as an additional representative from each of the county’s five supervisorial districts. The board for the Tehama County GSA has final authority over GSPs, future amendments, ordinances, rules regulations, and fees.

Butte County’s early transition to SGMA’s framework has also been successful. In 2015, Butte County hired a consulting farm to help it integrate the county’s groundwater management into SGMA. Although fifteen agencies have sought GSA status, the county has implemented a Groundwater Pumpers Advisory Committee, which first met in January 2017. Butte County, Tehama County, and Colusa County have all experienced various levels of success in preparing for SGMA’s early deadlines. These counties provide an example of what effective, long-term, and local management of groundwater may look like in California.

Matthew Kilby

Image: A vernal pool near Oroville, in Butte County, California. Flickr user, mary. Creative Commons.


Recently, a court in India has made a dramatic decision to give rivers legal rights in an attempt to curb pollution. While India’s Supreme Court overturned the ruling as legally unsustainable in July, this continues a global trend of recognizing the rights of water sources as opposed to just those that use the water. Potentially, this trend could come stateside, offering a unique way for Native American tribes to protect waters they consider sacred.

 

The Rights of Rivers in India

The high court in Uttarakhand, India, where the Ganges River originates, recently granted the Ganga and Yamuna rivers and their tributaries rights as “living entities.” This gives the river and its tributaries, regarded as holy by millions of Hindus, the same rights as people, making the harming the river equivalent to harming a person. The ruling also appoints three officials to represent rivers as legal guardians. In theory, these guardians may then sue on behalf of the rivers for damages since their title gives them legal standing,

This is the court’s most recent attempt to address the pollution problem affecting rivers that supply water for forty percent of India’s population. Critics, including the courts, have called national government efforts ineffective at slowing the estimated two billion liters of waste entering the river each day. Economic development and population growth are primary culprits for this waste.

To support its decision, the Uttarakhand court cited a recent New Zealand law that also grants a river the same legal rights as people. The Whanganui iwi Tribe worked with the government to recognize the Whanganui River and grant it protections as an ancestor. Similar to the court ordained decision in India, this law also appoints legal guardians charged with protecting the river. The river has the same protections from harm as a Whanganui iwi tribal member.

In July 2017, the Supreme Court of India reversed the ruling at the urging of the local state government in Uttarakhand. The Court cited complications in implementing the law across jurisdictions, since the Ganges runs through much of India. And it noted the ruling would allow actions against the river, such as murder or wrongful death claims for people killed in floods. Despite this setback, the ruling remains an novel solution to a severe problem.

 

Rights of Water Sources in the U.S.

The idea of granting legal rights to inanimate objects, specifically natural resources, is not alien to the United States. There are advantages to granting a water source specific rights, discussed at length by Cristopher Stone, Professor of Law at the University of Southern California, in a 1972 journal article. Stone argued giving an entity like a river judicial standing, or a right to sue for a perceived harm, would allow for greater justice for ecological harms. For example, if a polluter dumps in a river, the only current avenue for recovery is for those non-river entities harmed by the pollution to sue. If pollution doesn’t significantly bother a downstream user, or that user is a polluter itself, that individual may not ever bring a suit and the harm would go unchecked. A river could sue for the entirety of harms suffered.

U.S. Supreme Court Justice Douglas agreed with Stone, in a dissenting opinion also authored in 1972, Sierra Club v. Morton.  His dissent cited public concern for nature and ecology, and called for those with a meaningful relation to water to be able to speak for it. He used the analogy of ships and corporations, both of which have legal personality that grants them rights in litigation. While stirring, this view has failed to gain traction in the following decades.

A likely cause for this is that it could be politically unpopular. The Blaze, a conservative U.S. news source, pushed back against the New Zealand law. Ironically, it attacks the law for one of the same reasons Stone argued natural resources should have standing. The Blaze article is concerned with giving rights to non-living entities, when New Zealand does not recognize rights for unborn children because it does not ban abortion. As Stone himself recognized, there is difficulty in getting Americans to accept an inanimate object has standing. As an example, he cites the backlash from corporate personhood, a debate that still goes on. And at a more technical level, water as a commercial commodity with multitudes of competing interests and disagreement over what constitutes “public interest” and “beneficial use” in the American West’s established prior appropriation system complicates matters.

 

Recognizing Sacred Sources: Difficulties and Consequences

However, there is one avenue where an attempt to give a water source standing could arise, mirroring New Zealand’s legislative approach. America could potentially work to recognize water sources as having rights as a sacred part of Native American history and culture. University of Montana Profess of Law Michelle Bryan recently explored this possibility and its challenges in a Natural Resources Journal article.

Indigenous groups across the world treat waters as sacred in several ways. Like the Maori, water sources can have spiritual significance and consider the sources as an ancestral member of the tribe. Alternatively, the waters can have ceremonial value, or locational significance to a tribe, such as for a creation story. Unfortunately, there is little legal protection for sacred water on a global scale. Tribes have few alternatives to protect what they have not legally been appropriated. These sources can be “vulnerable to diversion, consumption, contamination, and other impacts that damage the very essence of what makes them sacred.”

Recognizing sacred water rights challenges the traditional prior appropriation schematic factors of: beneficial use, diversion, seniority, abandonment, and public interest. First, sacred water currently lies outside accepted ideas of beneficial use. Second, since sacred waters’ value exists typically in place as part of the source, it is difficult to show diversion. Third, these rights would likely be subject to senior, preexisting rights. Fourth, where use is difficult to show, rights are subject to abandonment, or the idea of “use it or lose it.” Finally, many states require water uses promote public interest, which is vague, but seems to prefer economic benefit over social utility.

States sometimes have statutes that define in-stream uses like fishing rights to avoid diversion and abandonment by non-use. And several federal doctrines offer some relief for tribes. The Winters Doctrine, for example, reserves water rights for tribes that vest upon creation of the reservation, in amounts “sufficient to fulfill the purposes of the reservation.” This water reservation is independent of both beneficial use and loss by non-use. The Winters decision allows relating back water use to creation of the reservation, which can give tribes a higher seniority than water rights holders who perfected their rights after reservation creation. Unfortunately for tribes, fixing these rights can be limited to Practically Irrigable Acreage, the minimum water the tribe needs to sustain itself agriculturally.

Success stories are rare. For example, members of several Native tribes were unable to show sufficient harm to their religious practices to prevent construction of a solar energy facility that would cut off their access to the Salt Song Trails in the Southwestern United States. Professor Bryan notes the difficulties coupled with a lack of state and federal support means the stars must align to protect a water source as sacred to a tribe. And other rights holders understandably get nervous when their rights could disappear or reprioritized.

Bryan suggests negotiating treaties with tribes, like the New Zealand legislature did creating their law, that recognize sacred waters as a right inherent to the river itself and not with people. This would be a resurgence of the arguments put forward by Stone and Justice Douglas. However, negotiations would be a long process. It is also possible to protect water within our current system. Recognizing sacred waters as a legitimate public interest and beneficial use are key steps in this direction.

Bryan may underestimate the usefulness of the Winters Doctrine. She notes examples of tribes using it are becoming rarer, but perhaps this is because they haven’t fully explored its usefulness. However, at least one state has recognized an avenue to use the Winters Doctrine to preserve sacred water sources.

A 2001 Arizona Supreme Court decision involving the Gila River (In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source) recognized that the act of measuring a tribe’s minimal need by the Practicably Irrigable Acreage standard is antiquated. Instead, the court suggested several factors to consider in deciding what a tribe needs, notably including a tribe’s history and culture. If their culture considered a water source sacred, they could reserve the minimum amount needed to preserve that source, potentially a significant amount. This would allow relating the right back to creation of the reservation, jumping other appropriators with junior rights.

If you close your eyes, you can almost hear other appropriators crying “foul!” Significantly appropriating a source this way would likely be a tough pill for courts to swallow, as well. But the threat of such a possibility could bring parties to the negotiating table. Tribes could have more bargaining power to be a part of the water allocation process, representing the tribe or river.

In Arizona, Rod Lewis, a Native American attorney involved in the Gila River adjudication has gained a seat on the Central Arizona Water Conservation District Board. He will have a voice for the tribe in state water allocation. From such a position, tribes could influence state water boards to further protect sacred waters, possibly influencing a formal recognition of sacred water as a beneficial use or as part of the public interest.

Recognizing sacred rights could have had implications for the Standing Rock and Cheyenne River Sioux protesting the Dakota Access Pipeline beneath Lake Oahe in South Dakota. Perhaps if the tribes could have sued not as themselves, but on behalf of the lake, they could have showed a greater potential for damage. The Tribes may have had a better shot at getting an injunction halting the pipeline if they could argue standing on behalf of this waterway.

In sum, giving water sources legal rights has moved from a hypothetical in law journals and dissenting court opinions to real statutory and common law around the globe. Perhaps it’s time America considered weaving it into its own system.

Michael Larrick

Image: “Indian at Sacred Lake” by Eanger Irving Couse, Wikimedia Commons.

 

Sources

Michael Safi, Ganges and Yamuna rivers granted same legal rights as human beings, The Guardian (Mar. 21, 2017, 7:44 AM), https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings?CMP=share_btn_link.

Dr. Afshan, Save The Ganges River, Scientific India (Jul. 24, 2014), http://www.scind.org/36/Social-Issues/save-the-ganges-river.html.

Eleanor Ainge Roy, New Zealand river granted same legal rights as human being, The Guardian (Mar. 16, 2017, 12:05 AM), https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.

Cristopher D. Stone, Should Trees Have Standing? Toward Legal Rights For Natural Objects, 45 S. Calif. L. Rev. 450 (1972), available at https://isites.harvard.edu/fs/docs/icb.topic498371.files/Stone.Trees_Standing.pdf.

Sierra Club v. Morton, 405 U.S. 727, 741 (1972), available at http://caselaw.findlaw.com/us-supreme-court/405/727.html.

Justin Haskins, Crazy environmentalism: New Zealand law gives river human rights – but not unborn babies, Blaze (Mar. 18, 2017, 10:55 AM), http://www.theblaze.com/news/2017/03/18/crazy-environmentalism-new-zealand-law-gives-river-human-rights-but-not-unborn-babies/.

Michelle Bryan, Valuing Sacred Tribal Waters Within Prior Appropriation, 57 Nat. Res. J. 139 (2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2803691.

In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 35 P.3d 68 (Ariz. 2001).

Jack Newsham, Feds Blast Tribal Claim To Holy Site At Solar Power Plant, Law360 (May 9, 2016, 9:37 PM), https://www.law360.com/articles/794209/feds-blast-tribal-claim-to-holy-site-at-solar-power-plant

Dianna M. Náñez, Gila River member becomes 1st Native American to have a vote on Arizona water board, The Arizona Republic (Apr. 3, 2017, 6:02 AM), http://www.azcentral.com/story/news/local/arizona-water/2017/04/03/gila-river-member-becomes-1st-native-american-have-vote-arizona-water-board/99826278/.

Jeff Baenen, Company: Oil in pipeline under Missouri River reservoir, Assoc. Press (Mar. 27, 2017, 11:57 PM), http://bigstory.ap.org/article/9f3a519d5a2c4d9090c51b7bd8deab25/company-oil-pipeline-under-missouri-river-reservoir.