S.B. 107, S.L. 2017-145, Reg. Sess. 2017. (N.C. 2017) (easing the requirements for the removal of low-hazard dams).

 

North Carolina Senate Bill 107 (“SB 107”) seeks to streamline dam removal in the state by expediting the removal process under certain conditions.  There are roughly 6,250 dams in North Carolina, many of which no longer serve their original purposes—such as powering mills or creating now-obsolete water storage.  In addition to changing the removal process, the bill requires the North Carolina Department of Environmental Quality and the Department of Public Safety to study the dam removal process to recommend changes to “reduce regulatory barriers to obsolete dam removal and consolidate permit processes.”  It must then submit this report to the Environmental Review Commission by March 1, 2020.  Many supporters of SB 107 championed its passage for a variety of reasons: to no longer keep fish from their habitat; to remove the public safety hazards posed by old dams; to stop the increased threat of upstream flooding; and to open dammed areas up to recreation based economic growth.  The primary sponsors of this bill were State Senators Andy Wells, Brent Jackson, Rick Gunn, and Mike Woodard, as well as Majority Leader Representative Stephen Ross.  The State House and Senate unanimously approved the bill, and North Carolina Governor Roy Cooper signed it into law on July 20, 2017.

During the second reading in the House, testimony by legislators indicated that the bill does exactly what it claims—it streamlines dam removal in the state by allowing professional engineering firms to remove low hazard dams that are now obsolete while also commissioning a study to find more ways to streamline the removal process in order to restore North Carolina’s river resources.  The bill passed unanimously and faced little opposition during the legislative process because of bipartisan support.

Under the previous regime, deconstructing a dam required approval by the Department of Environmental Quality via an application that stated the name and address of the applicant and described the proposed removal process with maps, plans, specifications, and other Department required information.  In order to streamline the process, SB 107 establishes a new system for dam removal.  The new system involves an explicit state review process under the Clean Water Act by focusing resources in North Carolina’s Dam Safety Program towards high-hazard dams where a breach of the structure could lead to loss of life.  By doing so, the State Legislature has acknowledged the importance of removing dams to protect the natural river ecosystem and has added extra requirements for floodplain mapping when a dam is going to be removed to ensure that there will be no serious threats to life or property when the dam comes down.  Further, the legislature also allowed for consultation between the Department of Environmental Quality and the Department of Public Safety on how to optimize dam removal legislation in the state going forward, once again acknowledging the importance of dam removal for the purposes of natural river ecosystem revival.

Section 1 of SB 107 exempts professionally supervised dam removals from the otherwise required approval of the Department of Environmental Quality. The bill defines a Professionally Supervised Dam Removal as: “the removal of a low or intermediate hazard mill dam or run-of-river dam that is not operated primarily for flood control or hydroelectric power generation purposes and the removal of which is designed and supervised by an engineer licensed under North Carolina law.” This removal must also comply with certain criteria: (i) the engineer must determine that removal of the dam can be accomplished safely; (ii) the engineer must also certify that the dam is a low or intermediate hazard; (iii) the person proposing the removal must notify the Director of the Division of Energy, Mineral, and Land Resources (part of the Department of Environmental Quality) no less than sixty days prior to the requested removal; and (iv) the person proposing the removal must also notify the North Carolina Floodplain Mapping Program of the Department of Public Safety as well as property owners directly adjacent to the dam and reservoir, and all impacted local governments of the dam removal no less than sixty days prior to the proposed removal.

Most critically, the bill removed the requirement that a removal not increase water levels above the site or cause flooding downstream to obtain a dam safety permit from the Department of Environmental Quality.  The purpose of the removal of this regulation was to expedite the dam removal process under these certain circumstances as well as hastening river restoration in the state.  However, the bill added the requirement that the Department of the Environmental Quality and the Department of Public Safety study the process in order to recommend changes to reduce other regulations that make removing obsolete dams more difficult while consolidating the permitting process.  At the time the bill was passed, the Division of Energy, Mineral, and Land Resources within the Department of Environmental Quality granted one to two applications to remove these kinds of dams every two to three years. As a result of the bill, the Division expects increased interest, but, as noted in the bill’s fiscal report, it is unclear how many dams increased interest would actually implicate.  Given the current lax interest in the dam removal program, a significant increase in participation would be required to create much of a fiscal impact on the state of North Carolina. However, the Division recognized that SB 107’s capping the fee at $500 could result in less revenue than the current fee structure generates while also encouraging more dam owners to seek removal due to the lowered costs.  If demand does increase substantially, then revenue captured by the Division could increase.  But, because the Fiscal Research officer could not predict the rate of participation, no fiscal estimate was available to legislators.

Overall, the importance of the bill comes down to how it eases the restrictions that used to accompany the removal of all dams in the state.  Now, under SB 107, a mechanism exists to allow for dam owners to employ engineers to oversee the removal of a low or intermediate hazard dam that is not being used for flood control or hydroelectric power generation.  Instead of having to seek approval from the Department of Environmental Quality for this as dam owners did in the past, now the dam owner only has to pay $500—a savings compared to the previous regime that required 2% of the actual costs of the removal.  Moreover, SB 107 changes the metric for measuring dams in the state when considering removal to the height of a dam from the lowest point on the crest to the lowest point on the downstream toe.  And finally, SB 107 also directs the Department of Environmental Quality and Department of Public Safety to study ways to further reduce regulatory barriers to dam removal and report their findings to the Environmental Review Commission by March 1, 2020.

 

Gracen Short


Thousands of abandoned and orphaned mines dot the American West. They pose a danger to both public and environmental health, and responsible parties are difficult to find, differentiate, or hold accountable. Why do inactive mines continue to pose safety hazards and pollute our waterways? The laws in place simply don’t have teeth. The Gold King Mine wastewater spill in southwestern Colorado in 2015 was a good reminder of the scope of the problem of abandoned and orphaned mines and how our current regulatory framework falls short.

 

There are three laws that generally govern mining law in the United States: the 1872 Mining Law, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). These laws lack concrete measures to prevent mine spills from occurring as well as reliable methods to ensure that all mines receive the necessary attention in the case of a spill (or better yet, to prevent one). In addition, these laws can create liabilities and disincentives on parties who might otherwise be willing to come in and remediate the mine on their own. However, some states are turning towards a non-traditional form of legislation: Good Samaritan laws, in which citizens, companies, and organizations would be not liable in the case they decide to take on the task of cleaning up acid mine drainage.

 

The abandoned mine problem in the United States is striking. Specifically, hard rock mines (including metals like gold, silver, iron, copper, and zinc) are predominant in the West as a result of the discovery of gold and silver during the era of western expansion. Up until the 1970s, the federal government engaged in little oversight on mining across much of the West. During the mining era, there were few expectations about environmental safeguards, and as a result, historic mining operations often went largely unregulated. Before the 1970s, it was common for mining companies to abandon mine sites after mineral extraction was completed or no longer profitable. The land was often left exposed, with waste materials in piles or dumped into mine cavities and pits. At the time, mining companies had no requirement to restore mine lands to their original condition. Today, it is almost impossible to hold these mine owners financially responsible because records of original ownership have been lost and accountable individuals have long passed away. There are over 500,000 abandoned hardrock mine sites across the nation, and the cost for cleaning up these inactive mines is estimated to be between $33 and 72 billion dollars. Today, these abandoned mines are capable of polluting adjacent streams, lakes, and groundwater with high volumes of toxic waste. In doing so, contamination from spills has the potential to—and often does—harm marine ecosystems, poison local drinking water, and pose serious health risks to local communities.

 

What Laws Are in Place?

 

The Mining Law of 1872, or the General Mining Law, governs the transfer of rights to mine gold, silver, copper, uranium and other hardrock minerals from federal lands. Under the law, citizens may enter and explore the public domain, and if they find valuable mineral deposits, they may obtain title to the land through the Department of the Interior. The law has jurisdictional coverage over 270 million acres of publicly owned land, which is almost one-fourth of all land in the United States. In essence, mining companies are able to search for minerals without any authorization from any government agency. The law contains little to no environmental protections for using use of the land and it does not include any royalty or bonding provisions (to help fund cleanup in case of an accident). As a result, many have criticized the law for giving away public land to private companies practically for free, leaving the public to bear the burden for cleaning up the spills. Since there is no requirement to pay royalties or report extraction volume, the government does not keep track of the volume of hardrock minerals being extracted from federal public lands each year. Consequently, this aspect of mines is largely unchecked and has disparate effects.

 

But the issue of abandoned mines has not entirely been overlooked. In September 2017, Senator Tom Udall (Arizona) introduced legislation to reform the General Mining Law and address many of the above-mention criticisms.  If passed, the legislation would help fund clean-up activities through fees and royalties. In March 2018, the House Committee on Natural Resources held a hearing on the issue of abandoned mines.

 

The Clean Water Act (CWA) is aimed at restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. The Act splits the responsibility to state agencies and some responsibility to the EPA to carry out the regulatory purposes. The Act requires would-be polluters to obtain a permit for any kind of discharge of a pollutant from a point source (such as mine waste) into the navigable waters of the United States. While the structure of the Act enforces a basic foundation for protecting water resources, one consequence of the permitting system is that parties who own or attempt to clean up mines will likely become subject to its extensive permitting requirements and face liability. This being said, when parties do attempt to clean up mines, their actions could still constitute a violation of the CWA. Under the Act, a party seeking to engage in cleanup activity would need a permit regardless of whether their actions aggravate or improve the water quality.

 

CERCLA allows for the cleanup of sites that are already contaminated with hazardous substances and pollutants. It is also referred to as the “Superfund,” due to the large fund that it created for cleanup of contaminated sites. CERCLA is intended to spread the cost of cleanup among responsible parties, and allows the government to undertake cleanup of contaminated property or compel private parties to undertake the cleanup themselves. Like the CWA, CERCLA creates potential liability for parties that might attempt to clean up abandoned mines, which usually takes form of lawsuits. Under 107(a)(4)(B), private parties can recover from a potential responsible party (PRP) for the cleanup costs they “directly incur.” Under this broad liability scheme, people who own property containing hazardous substances can be held liable for enormous cleanup costs even though they were not involved in any hazardous waste disposal activities. Even with some liability defense for certain types of innocent landowners and bonafide prospective purchaser, CERCLA has in effect discouraged the purchase and reuse of properties that may be contaminated. As a result, the overwhelming costs of cleanups (and potential liability) have been the primary restraining factors for people otherwise interested in reusing and restoring contaminated properties.

 

Good Samaritan Legislation

 

There has been no shortage of offered fixes to the problem of abandoned and orphaned mines, but one solution that has seemed to be getting more traction recently is the idea of Good Samaritan legislation. While potential liability under the CWA and CERCLA has discouraged parties from cleaning up abandoned mines or reusing and restoring contaminated properties, Good Samaritan legislation may provide new hope for parties who want to attempt to clean up mines but do not have the resources to take on the liability that might accompany cleanup efforts. These parties may include citizens, government agencies, nongovernmental organizations, and mining companies.

 

Pennsylvania implemented the Environmental Good Samaritan Act in 1999 and has completed fifty projects since. Those protected by this legislation include individuals, corporations, nonprofit organizations, and government entities. The Act protects them if they meet several requirements, including they that did not cause/create the abandoned mineral extraction land or water pollution, and that they provide equipment and/or materials for the project. The Pennsylvania Department of Environmental Protection (DEP) administers and reviews project proposals to determine project eligibility.  While the Act has been used for mine reclamation in the past, DEP has also applied it to other environmental remediation projects, achieving success so far. In 2017, the Act has been applied to two oil and gas well projects, which are estimated to have saved DEP $60,000 to $85,000, in addition to administrative cost savings related to contract development and management. Three more projects are currently under review.

 

Recently, members of Congress have made efforts to enact something similar at the federal level. In 2016, three members of the Colorado delegation to Congress proposed the Good Samaritan Cleanup of Orphan Mines Act of 2016 with the help of environmental groups Trout Unlimited and Earthworks. The bill, ultimately, was not successful.

 

The practical reality of Good Samaritan legislation is that most parties who are interested in cleaning up the spills will not have the funds to effectuate a successful cleanup. While Good Samaritan laws appear to be a reasonable way to encourage cleanups, they are not enough to solve the multifaceted abandoned mine issue that has a variety of stakeholders- including the mining companies who are often let off the hook. This is why most environmental advocates tend to reject Good Samaritan proposals, as they distract from the bigger picture that the mining companies are causing the spills and are not taking responsibility to clean them up. While the EPA has issued guidance on Good Samaritan laws, few parties are willing to proceed with cleanup projects because the EPA has failed to engage in regulatory rulemaking and enforce law on the subject.

 

This being said, Good Samaritan legislation alone will not solve the abandoned and orphaned mine issue. Conservation groups have proposed increased liability for mining companies. At the state level, conservation groups like San Juan Citizens Alliance and Conservation Colorado have supported the

 

Thus, what seems to be the closest thing to an answer to the abandoned and orphaned mine problem is some sort of combination of many proposed solutions: Good Samaritan laws, imposition of royalties, creation of a hardrock reclamation fund, etc. At this point, the main question is where resources should be allocated and at what cost, especially amidst federal laws and agencies that often disagree on how and to what extent…” to protect the environment.

 

 

Haley McCullough

 

Image: The Animas River between Silverton and Durango in Colorado, USA hours after the 2015 Gold King Mine wastewater spill. Wikimedia Commons user Riverhugger, Creative Commons.

 

Sources

Jeffrey M. Gaba, Private Causes of Action under CERCLA: Navigating the Intersection of Sections 107(a) and 113(f), 5 Mich. J. Envtl. & Admin. L. 117 (2015).

Kelly Roberts, A Legacy That No One Can Afford to Inherit: The Gold King Disaster and the Threat of Abandoned Hardrock Legacy Mines, 36 J. Nat’l Ass’n Admin. L. Judiciary 361 (2016).

Jeffrey A. Kodish, Restoring Inactive and Abandoned Mine Sites: A Guide to Managing Environmental Liabilities, 16 J. Envtl. L. & Litig. 381, 381(2001).

 

Bart Lounsbury, Out of the Holes We’ve Made: Hardrock Mining, Good Samaritans, and the Need for Comprehensive Action, 32 Harv. Envtl. L. Rev. 149 (2008).

 

United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013).

 

American Mining Congress v. United States Envtl. Protection Agency, 965 F.2d 759 (9th Cir. 1992).

 

Committee to Save Mokelumne River v. East Bay Municipal Utility Dist., 13 F.3d 305 (9th Cir. 1993).

 

Hardrock Mining, The National Wildlife Federation, https://www.nwf.org/Our-Work/Waters/Hardrock-Mining (last visited Apr. 5, 2018).

U.S. Gov’t Accountability Office, Mineral Resources: Mineral Volume, Value, and Revenue (2012), https://www.gao.gov/assets/660/650122.pdf (last visited Apr. 5, 2018).

Matthew Brown, EPA drops rule requiring mining companies to have money to clean up pollution, Chi. Tribune (Dec. 1, 2017), http://www.chicagotribune.com/news
/nationworld/ct-epa-mining-pollution-20171201-story.html (last visited Apr. 5, 2018).

Brian Handwerk, Why Tens of Thousands of Toxic Mines Litter the U.S. West, Smithsonian.com, (Aug. 13, 2015), https://www.smithsonianmag.com/science-nature/why-tens-thousands-toxic-mines-litter-us-west-180956265/ (last visited Apr. 5, 2018).

Van Zyl, D., Sassoon, et. al., Mining for the Future: Main Report (2000).

 

Claudia Copeland, Cleanup at Inactive and Abandoned Mines: Issues in “Good Samaritan” Legislation in the 114th Congress, (Nov. 25, 2015) https://fas.org/sgp/crs/misc/R44285.pdf (last visited Apr. 6, 2018).

 

Dep launches program to cap abandoned wells, The Bradford Era (Jan. 31, 2018), http://www.bradfordera.com/news/dep-launches-program-to-cap-abandoned-wells/article_8310642a-061b-11e8-ad41-cb2aff000d41.html (last visited Apr. 15, 2018).


University of Denver Water Law Review Annual Symposium 2018: Forging Sovereignty, Self-Determination and Solidarity Through Water Law

 

Denver, Colorado      March 30, 2018

Enhancing Tribal Water Sovereignty

(Scroll down for full video of panel)

The second panel of the symposium included four attorneys who work with American Indians to secure their water rights.  Retired Colorado Supreme Court Justice Gregory Hobbs moderated the panel. Hobbs opened the panel by giving a brief history of the Ute Tribes in Colorado before introducing the first speaker, Ernst House Jr., to talk about what tribal sovereignty means in the context of modern water rights.

Ernst House Jr., the Executive Director of the Colorado Commission of Indian Affairs and member of the Ute Mountain Ute Tribe, works with state agencies to ensure that tribes have a voice in state decision-making.  House briefly discussed the history of the Ute Tribes’ reservations and emphasized the importance of water in tribal life.  He then covered the Ute Water Right Settlement Act of 1988 (“1988 Act”), which was signed by Chris Baker, President Reagan, and House’s father, Ernst House Sr.  Prior to the 1988 Act, no home on the reservation had running water—instead, water was delivered daily to the reservations by trucks.  House gave an example of the Ute Mountain Farm and Ranch, a sustainable farm growing alfalfa and corn, to demonstrate how water rights lead to economic development for tribes and allows tribes to have a seat at the table.

House next discussed the difference between wet and paper water rights.  For example, on paper the Ute Tribes has water rights in the Lake Nighthorse reservoir, but since the lake is a two-hour drive from the Ute Mountain Reservation, the Tribes might not see any of that water on the Reservation anytime soon.  House said that this is hardly uncommon, as only thirty-six tribes have had their federally approved water rights quantified.  He noted that collaboration is needed for large federal water projects—such as the huge lobbying effort required to get the Dolores Project passed—and that the involvement of young people is vitally important.  House closed by urging listeners to consider tribal perspectives and visit reservations.

Peter Ortego, General Counsel for the Ute Mountain Ute Tribe, worked on the Animas La Plata Project and spoke about tribal sovereignty and federally reserved tribal water rights.  When the Ute Mountain Reservation was created, the government understood that the Ute Tribes would need water in order to settle the barren land, so the government implicitly reserved enough water for the Tribes to make those lands hospitable.

However, in the context of the Animas La Plata Project, issues outside of the traditional tenets of tribal reserved water rights became apparent.  Lake Nighthorse is located directly over an ancient tribal burial site, which is obviously of large cultural significance to the Tribes.  The Bureau of Reclamation allows for four percent of a projects budget to go toward cultural mitigation, but this figure fell well short of the amount needed to repatriate the remains.  The Tribes ended up agreeing to leave the remains where they were, and cement over them to protect those remains from disturbance. Additionally, as evidence of the attempted collaboration between the city and the Tribes, when the Tribes objected to planned trails that were to surround the reservoir due to concerns about looting of cultural artifacts, the city listened by moving the trails back from the water’s edge.

However, not every issue surrounding Lake Nighthorse has been resolved regarding the tribes and the use of Lake Nighthorse., however.  When the non-Indian community around the reservoir applied for permits to use the water for recreation, the Tribes warned that such activity would disturb their ancestors.  Ortego pointed out—in an echo of House—that if we look at this issue from the Tribes’ perspective, we would not allow recreation on the lake.  According to Ortego, we would never build Disneyland over the World Trade Center and would not have to tell our children not to do so or put a law in place to prevent such action because the tragedy of the World Trade Center is part of our cultural story and identity. If we viewed Lake Nighthorse through the Tribes’ perspective, the same understanding would apply and the site would clearly be protected.  Ortego closed by saying that while he is not a tribal member, he does his best to present their concerns in a way that adequately conveys the Tribe’s perspective and respects tribal interest.

Scott McElroy, an attorney at McElroy, Meyer, Walker & Condon, P.C., who represents the Southern Utes and Ute Mountain Utes on natural resources issues, spoke about the Colorado Ute Indian Water Rights Settlements.  McElroy noted that the settlement of tribal water rights is often a long, drawn out process.  He used, as an example, another settlement he is working on in New Mexico which was started in 1966 and should be settling the final issue this year.  McElroy further stated that negotiated settlements have not historically worked out well for tribes.  While McElroy advocates for settlements over litigation, tribes may meet such a suggestion with skepticism.

McElroy next discussed the amendments made to the 2000 Colorado Ute Indian Water Rights Settlement Act (“2000 Settlement”).  The 2000 Settlement amendments eliminated some irrigation components of the Animas La Plata Project, limited depletions, and added an additional pipeline to deliver water to the Navajo Nation.  McElroy also mentioned that there are two big planning efforts relating to tribal water rights pending—the Bureau of Reclamation’s Tribal Water Study, and the Water Reservation Planning Document being spearheaded by the Ute Tribes that aims to determine how the Tribes can best maximize the use of their water rights.

The final speaker was Steve Moore, a senior staff attorney at the Native American Rights Fund who represented the Agua Caliente Band of Cahuilla Indians (“Agua Caliente Tribe”) in the Ninth Circuit case aimed at resolving the question of whether federal reserved tribal water rights extend to groundwater.  Moore gave a presentation about the exercise of tribal sovereignty in the context of groundwater and groundwater management.  Tribes have survived for millennia in the deserts around what is now Palm Springs, California by being stewards of the natural resources in the area.  The Agua Caliente Tribe, who have inhabited Coachella Valley from time immemorial, dug walk-in wells to access groundwater long before the tribe encountered white settlers in the area.  However, once the settlers moved into the area they filled in these wells and by 1900, the wells were gone.

There were eighteen treaties made with tribes in this area of California, mainly during the California Goldrush of 1849, but none of them were ever ratified.  However, Presidential Executive Orders issued in 1876 and 1877 officially created the Agua Caliente Reservation, which originally consisted of over 30,000 acres.  However, as is the case with nearly all Indian reservations, the acreage has since been greatly reduced.  In this case, land grants given to the railroads resulted in a checkerboard patterned reservation.

When the reservation was created, the United States understood that access to water would be an absolute necessity for the reservation’s establishment.  Due to the arid climate of the Coachella Valley, those living in the region are highly dependent on water from the Coachella Valley Groundwater Basin aquifer. However, the quality and depth of that aquifer, part of which is below the Agua Caliente Reservation, has been steadily declining due to water mismanagement by Coachella Valley Water District and Desert Water Agency (collectively “Water Agencies”).

After two decades of complaining about the over-drafting and degradation of the water quality in the Coachella Valley, the Tribes brought suit against the Water Agencies in 2013 to establish and quantify their federally reserved rights to groundwater. In order to establish federally reserved tribal water rights, it must be proven that water was considered a necessary component for the purpose of the reservation.  By demonstrating that water was thought of as needed for the reservation, and by providing evidence of the historical use of walk-in wells by the Tribe, the Agua Caliente Tribe successful argued before the Ninth Circuit that it had a federally reserved right to the groundwater below their reservation.  This holding is significant because it was the first time a circuit court has extended federally reserved tribal water rights to groundwater resources.  The parties are currently undertaking court-ordered mediation, but the next phase of the case is scheduled oral arguments and will decide on issues like pore space, water quality, and what standard shall be used to quantify the Agua Caliente Tribe’s water rights.

The panel concluded by taking questions from the audience.  Ortego responded to a question about how to maintain momentum in face of worsening water problems by reiterating the importance of cooperation among tribes, state actors, and local governance.  He emphasized the importance of the tribes having a seat at the table to ensure that projects executed around tribes and projects on reservations work together, rather than working at odds with each other.

Another audience member stated that an EPA Administer had accused the Animas La Plata project of “riding an Indian pony” to gain approval and wondered what the panel’s response to that might be.  McElroy handled that question by pointing out that contrary to what might be said, the Tribes had input on the Animas La Plata project from the start.  He stated that the tunnel planned from the lake to the Ute Tribes was removed from the project due to opposition to the project as a whole.  McElroy also noted that the Tribes were willing to compromise by downsizing the project’s benefits to the Tribe in return for increased storage and avoiding additional litigation.

Alexandra Tressler

 


Santa Fe, New Mexico                       April 5–6, 2018

 

At the 18th Annual Law of the Rio Grande Conference in Santa Fe—a gathering of stakeholders from Colorado, New Mexico, and Texas—several professionals took advantage of the opportunity to weigh in on Texas v. New Mexico & Colorado, an ongoing case before the United States Supreme Court.  Three presenters, one from each state, gave a formal update on its status.

The presenter from Texas provided a brief orientation to Supreme Court jurisdiction and procedure as it relates to the case in question. The Supreme Court has exclusive and original jurisdiction over actions among states.  Because that jurisdiction is discretionary, a state must petition the Court for permission to file a complaint against another state.  If the Court grants the motion to file, it then appoints a Special Master to hear the case and make a report with recommendations for how it should be resolved.  The parties then file any “exceptions” to the Special Master’s Report.  The Court reviews the exceptions and issues its Order.

Overview presentations of the Rio Grande Basin provided background for the facts of the case.  The Rio Grande Compact is an interstate agreement between Colorado, New Mexico, and Texas that apportions Rio Grande Basin water among the three states. Under the Compact, Colorado must deliver a specific quantity to New Mexico, and New Mexico must deliver a specific quantity to the Elephant Butte Reservoir, from which water is distributed to New Mexico and Texas.  Elephant Butte Reservoir, located in southern New Mexico, is a federal Bureau of Reclamation project.  Texas v. New Mexico & Colorado is based on Texas’ allegation that New Mexico has violated the Compact by allowing diversion of surface water and pumping of groundwater that is hydrologically connected to the Rio Grande below Elephant Butte Reservoir, thereby depleting Texas’ share of water.  Given the case’s pending status, New Mexico did not delve into its position at the conference, however, in its 2014 Motion to Dismiss, it asserted that the Compact does not require New Mexico to preserve conditions on the Rio Grande below Elephant Butte Reservoir.

The Colorado presenter provided a timeline for the procedural history of Texas v. New Mexico & Colorado:

 

2013     Texas moved for leave to file

 

2014     The Supreme Court granted Texas’ motion to file

United States filed Motion to Intervene, which the Court granted

New Mexico filed Motion to Dismiss

Court appointed Special Master

Elephant Butte Irrigation District filed Motion to Intervene

 

2015      El Paso Water District 1 filed Motion to Intervene

Special Master heard oral argument on all Motions

 

2016     Special Master issued draft First Interim Report on all Motions

Parties provided comments for consideration

 

2017     Special Master issued final First Interim Report with the Court

Parties filed exceptions to First Interim Report

The Court denied Motion to Dismiss and Motions to Intervene

The Court sustained the United States’ and Colorado’s exceptions concerning the scope of compact claims the United States can assert

 

2018     January – The Court heard oral argument on exceptions

March – The Court granted the United States’ right to file compact claims under certain circumstances

April – The Court discharged the Special Master and appointed a new one

 

Next     New Mexico and Colorado to file answers with any counterclaims

Steps    Responses to any counterclaims

 

Colorado

Karen Kwon, First Assistant Attorney General from Colorado, was the first to take the podium for the formal presentation of the case update.  Kwon started off by reminding the audience that, although the case is more frequently referred to as “Texas v. New Mexico,” the audience must not to forget that it is actually Texas v. New Mexico & Colorado.  She addressed Colorado’s interest in the case even though the controversy is between Texas and New Mexico.  She explained that because Colorado is a signatory to the Compact, how the case is decided could affect its interests.  Kwon outlined Colorado’s concerns to be: (1) protecting the State and its water users’ interests in the Rio Grande Basin; and (2) protecting the State’s sovereign interests in compact law more broadly.

Speaking to the second of the two concerns, Kwon clarified Colorado’s rationale for taking exception to the United States’ ability to pursue claims for Compact violations.  She specifically noted the State’s motivation to avoid “compact challenges by non-signatories, or by third-parties who may frustrate the purpose and intent of the signatory states.”  She further emphasized that the Court’s March 5, 2018 opinion did not grant the United States ability to assert compact claims in all cases.  It found only that intervention was appropriate in this case, considering the United States’ “distinctively federal interests” in this particular Compact, which concerns a federal reclamation project and international agreements with Mexico.  Kwon concluded by emphasizing that Colorado does not want to be “dragged into the litigation any more than it has to” in order to protect the interests she discussed.

 

Texas

Second to speak was Jon Niermann, Commissioner of the Texas Commission on Environmental Quality.  Niermann provided a more detailed summary of Texas’ allegations: (1) the 1938 Rio Grande Compact affects equitable apportionment of waters between states; (2) the Compact is predicated on the understanding that water released from the Elephant Butte Reservoir would not be subject to depletion in excess of what existed in 1938; and (3) New Mexico has taken water to which Texas is entitled by increasingly allowing diversion of surface water and extraction of groundwater below the reservoir.  Niermann also outlined New Mexico’s arguments in its Motion to Dismiss that: (1) the Compact contains no language requiring New Mexico to preserve conditions on the Rio Grande below the reservoir; and (2) Texas’ sole recourse is legal and administrative remedies under New Mexico state law.

Niermann discussed the Special Master’s recommendations.  In recommending that the Court deny New Mexico’s Motion to Dismiss, the Special Master noted, “New Mexico . . . may not divert or intercept water it is required to deliver pursuant to the 1938 Compact to Elephant Butte Reservoir after that water is released from the Reservoir,” and “it is unfathomable to accept that Texas would ‘trade away its right to the Court’s equitable apportionment’ had it contemplated then that New Mexico would be able to disown its obligations under the 1938 Compact and simply recapture water it delivered to the Project.”

Nierman also discussed the exceptions to the Special Master’s Report, noting that Texas filed no exceptions.  Niermann touched on a topic that came up at various points throughout the entire Conference, the fact that the Special Master’s Report included extensive outside analysis and history of the Compact.  Niermann explained that both New Mexico and Colorado took exception to “the detailed analysis undertaken by the Special Master,” but that in its reply, Texas noted the analysis was sound and necessary to understanding the Special Master’s recommendations.

 

New Mexico

David Roman of Albuquerque New Mexico law firm, Robles, Rael & Anaya, was the final presenter.  Roman’s presentation was the most limited, given the status of the case.  Roman did not weigh in on New Mexico’s legal arguments or whether they would be in line with those from its Motion to Dismiss.  He did offer some input regarding the ethics of the outside research reflected in the Special Master’s Report.  He noted that the Supreme Court has held that judges are free to conduct whatever research they want.  However, a December 8, 2017 ABA Formal Opinion titled “Independent Factual Research by Judges Via the Internet,” concludes that “[i]ndependent investigation of adjudicative facts generally is prohibited unless the information is properly subject to judicial notice.”

 

Questions Posed

The presenters fielded questions at the conclusion of the presentation.  One discussion involved speculation as to why the Supreme Court had assigned a new Special Master.  It was suggested this could have been in response to the previous Special Master’s extensive outside research, but the actual reason remained a mystery to all parties.  The timing of the Conference, in the midst of Texas v. New Mexico & Colorado, led to the case being laced into almost every presentation and made for some tense moments.  During his presentation, New Mexico state Senator and gubernatorial candidate Joseph Cervantes prodded all stakeholders to “cut to the chase” and seriously consider what the inevitable settlement will look like.  Another attorney for Texas concluded her presentation with a picture of a New Mexico groundwater well from south of Elephant Butte Reservoir apparently pumping water directly out of the Rio Grande.  In spite of the tension, all parties did seem to share some optimism that after more than five years, the appointment of a new Special Master could help to move the case toward resolution.

 

 

Elaine Nolen