Hutton Educ. Found. v. Rein, 418 P.3d 1156 (Colo. 2018) (holding that the Commission must have first determined whether the water at issue was designated groundwater before subject matter jurisdiction could vest in the water court to review the Foundation’s constitutional challenge of S.B. 52).

This was an appeal of the Colorado Groundwater Commission’s (“Commission”) successful motion to dismiss against the Jim Hutton Foundation’s (“Foundation”) claimed challenging both Senate Bill 10-52’s (“S.B. 52”) application in the Northern High Plains Basin (“NHP Basin”) and the Management Act constitutionality.  The only issue on appeal was whether the water court properly dismissed the Foundation’s claims for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1).

 S.B. 52, the Foundation argued, made any legal redress from the Commission impossible so it sought declaratory relief in water court for three claims against the State Engineer, the Colorado Department of Natural Resources, and the Division of Water Resources.  The Commission intervened and moved to dismiss.  The court noted the Foundation’s burden to prove that the water court had jurisdiction to consider the constitutional claim.

The Foundation owned surface water rights to divert from the South Fork of the Republican River in order to irrigate its ranch lands in Yuma County, Colorado.  The sale of both the lands and water rights were relied upon to generate revenue for the Foundation.  However, in 1962 the General Assembly ratified the 1942 Republican River Compact (“Compact”) to enact the Colorado Ground Water Management Act (“Management Act”), which was intended to develop Colorado’s groundwater resources.  The Management Act also created the Commission with the authority to establish and administer procedures for groundwater permitting and use, as well as determine designated groundwater basins.  After the Management Act, the amount of water users installing wells in the NHP Basin increased and forced the Commission to curtain [AG1] surface water use in order to ensure compliance with Colorado’s annual water allotment under the Compact.

The curtailment affected the Foundation’s surface water rights.  The Foundation argued that the General Assembly limited its course of action as a surface water user to challenge the designated of groundwater basins when it enacted S.B. 52 in 2010 because prior to that year the Management Act provided that boundaries for designated groundwater basins could be changed “as future conditions required and factual data justified.”  The court reasoned that S.B. 52 provided that wells for which permits had been issued to use designated groundwater could not be excluded from designated groundwater basin that were already finalized as such action would be contrary to any original basin designations.

To settle the only issue on appeal, the court looked to the Water Right Determination and Administration Act of 1969 (“1969 Act”), which authorized water courts exclusive jurisdiction over water matters in its division but did not mention designated groundwater.  The court noted that the Management Act gave administrative authority of designated groundwater to the Commission.

            The court then considered its precedent for situations where surface water rights owners asserted that well-pumping within a designated groundwater basin injured their surface rights.  It has long held that the Commission must first determine whether designated water is at issue because only once the Commission concludes the water is not designated groundwater will jurisdiction vest in the water court.  The Foundation contended that the jurisdictional rule should not apply to its situation because the procedure prior to the 2010 amendment to S.B. 52 should control, allowing them to challenge the surface water users that were impairing its water rights.  However, the court noted that such an argument was a challenge to the constitutionality of the statute itself not to designated groundwater determinations. 

The court did not agree with the Foundation’s contention as it was contrary to its longstanding precedent that requires the Commission’s determination before any claim, even a constitutional one, can ripen.  The court reasoned that the Foundation simply asserted themselves that the water at issue was not designated groundwater absent any factual determination from the Commission but such an assumption did not give jurisdiction to the water court.  As such, the Commission must first decide one way or another before the Foundation may be able to bring a claim in the water court.

Accordingly, the court affirmed the water court’s decision to dismiss the Foundation’s constitutional challenges of S.B. 52 and the Management Act until the Commission determination can inform whether the claim is ripe for review in the water court. 

                                                                                                            Camille Agnello


 [AG1]Should this be curtail since the first word of the following paragraphs references the curtailment?


San Luis & Delta-Mendota Water Auth. v. Jewell, NO. 1:15-CV-01290-LJO-GSA, 2017 WL 1375232 (E.D. Cal. Apr. 17, 2017)(holding that (i) if an agency justifiably relied on a specific provision of a federal act to make Flow Augmentation releases, claims attacking the agency’s reliance on other provisions of the act will fail, and (ii) claims attacking Flow Augmentation releases under NEPA are moot and do not meet the “capable of repetition yet evading review” exception when an agency adopts a Long-Term Plan EIS that makes it unlikely the agency will follow the same procedures).

In order to reduce the risk of fish kill in the Lower Klamath River, the U.S. Bureau of Reclamation (“the Bureau”) made Flow Augmentation releases (“FARs”) in both 2014 and 2015 from Lewiston Dam, which is a part of the Trinity River Division.  The Bureau released a total of 64,000 acre-feet of water in connection with the 2014 FARs.  In 2015, the Bureau planned on making similar FARs and prepared an Environmental Assessment (“EA”) according to the National Environmental Policy Act (“NEPA”).  After the Bureau released the EA, the San Luis and Delta-Mendota Water Authority and the Westlands Water District filed suit against the Bureau and its parent agency, the Department of the Interior, in the United States District Court for the Eastern District of California.  The lawsuit included eight separate claims for relief, as well as a request for injunctive relief that was quickly denied. 

The first, second, and third claims for relief challenged the Bureau’s statutory authority to make FARs.  To justify the 2014 FARs, the Bureau relied on a proviso of a federal 1955 Act (the Act), which authorizes the Secretary of the Interior to adopt measures that protect fish and wildlife including maintaining the flow of the Trinity River below the diversion point (“Proviso 1”).  Plaintiffs asserted in their second claim that Proviso 1 did not give the Bureau the authority to implement the 2014 FARs.  While this lawsuit was pending, the Ninth Circuit Court of Appeals decided this issue, finding that the Bureau has the authority to implement FARs under Proviso 1.  In light of the Ninth Circuit’s decision, the Court found the second claim to be moot and dismissed the claim with prejudice.

The Bureau also relied on a second proviso of the Act to justify the 2014 and 2015 FARs—this proviso required that at least 50,000 acre-feet of water be released annually from the Trinity River and be made available to downstream users (“Proviso 2”).  The first and third claims attacked the Bureau’s reliance on Proviso 2.  The first claim alleged that Proviso 2 did not give the Bureau the legal authority for FARs.  The third claim alleged that even if the Bureau had legal authority under Proviso 2, reclamation law still requires that the Bureau enter into a contract for delivery of the water.  The Court found that the Bureau had specifically relied on both Proviso 1 and Proviso 2 in justifying the FARs. Because the Court already concluded that the Bureau had the authority to make FARs under Proviso 1, the Court found that the first and third claims attacking Proviso 2 were moot.  The Court dismissed these two claims without prejudice, contemplating a future challenge to FARs where the FARs are justified solely on Proviso 2.

The fourth and fifth claims alleged that the Bureau did not follow procedures required by NEPA. The fourth claim asserted that the Bureau’s EA for the 2015 FARs did not meet NEPA requirements and that the Bureau also needed to prepare an Environmental Impact Statement (“EIS”).  The fifth claim alleged that the Bureau also acted unlawfully by not preparing either an EA or and EIS for the 2014 FARs. The Court found that these claims were technically moot “because the 2014 and 2015 FARs expired of their own accord.”

However, because the duration of FARs is so short relative to the timeline of litigation, the Court entertained that these claims might still be valid as capable of repetition yet evading review. However, the Court found that the claims did not meet this exception to mootness because there was no evidence that this same controversy would be likely to occur again.  In making its determination, the Court relied on the Bureau’s recently issued Long-Term Plan to Protect Adult Salmon in the Lower Klamath River EIS, which identifies FARs as a proposed action and makes it unlikely that the Bureau would follow the same procedures for FARs as it did in 2014 and 2015. The Court also pointed out that even though the Long-Term Plan EIS only runs through 2030, that lack of clarity did not give rise to a demonstrated probability that the controversy would occur again.  The Court dismissed the fourth and fifth claims without prejudice to a renewed claim with new facts showing the controversy is likely to recur.

The sixth, seventh, and eighth claims alleged that the Bureau did not comply with requirements in the Endangered Species Act (“ESA”) and Magnuson-Stevens Fishery Conservation and Management Act (“MSA”). While this lawsuit was pending, the Ninth Circuit addressed nearly identical claims in a companion case and found that the plaintiffs there did not have standing for their ESA and MSA claims. Accordingly, the Court requested a supplemental briefing in light of that decision and did not decide the merits of the sixth, seventh, and eighth claims.

Jeremy Frankel


Duerre v. Hepler

Duerre v. Hepler, 892 N.W.2d 209 (S.D. 2017) (holding that (i) members of the general public cannot enter and use any of the water and ice on private property for recreational purposes absent legislative authorization, and (ii) the Department of Game, Fish, and Parks cannot facilitate access to the water and ice on private property for recreational purpose absent legislative authorization).

Thad Duerre, Clint Duerre, Robert Duerre and Laron Herr (“Landowners”) own two non-meandered sloughs in Day County, South Dakota.  The Landowners reported to the South Dakota Department of Game, Fish, and Parks (“GF&P”) that the public was trespassing on their private property and using the sloughs for recreational purposes.  The GF&P responded that the public could use the waters if they entered legally.  Landowners sued the State, the GF&P, and the class of persons who used or intended to use the waters in circuit court for declaratory and injunctive relief.  The parties filed cross-motions for summary judgment.

The Landowners asked the circuit court to declare that the public has no legal authorization to use or enter the non-meandered waters on their private property absent legislative authorization.  They also asked the circuit court to declare that the State may not adopt, enforce, or encourage the public to enter or use the sloughs for recreational purpose.  The Landowners sought to enjoin the State and class from using the sloughs or adopting a policy allowing members of the public to use the sloughs for recreational purpose.

The State asserted that the Landowners had no right to exclude the public from using the sloughs because all waters within South Dakota are held in trust by the State for the public.  Additionally, they asserted that GF&P was authorized to allow the public to use the waters so long as they were accessed legally.

The circuit court granted a less broad version of the Landowners’ declaratory relief, holding that in the absence of legislative authority, the public may not enter or use the waters or ice located on the private property for recreational use.  The circuit court also entered a permanent injunction prohibiting the public from entering or using the waters or ice located on the private property for recreational purposes without permission from the Landowners and prohibiting the GF&P and others from facilitation access to enter or use the waters or ice for recreational purposes.  The circuit court denied the State’s cross-motion for summary judgment.

The State appealed to the Supreme Court of South Dakota.  The State first contended that the circuit court erred in declaring that the public could not use the private non-meandered waters for recreational purposes.  The State argued that the public has a right to use South Dakota’s waters for a beneficial purpose and that recreational use is beneficial.

In Parks v. Cooper, the court found that recreational use of non-meandered lands may be a beneficial use of water, but the Legislature had failed to answer whether recreation was, in fact, a beneficial use.  The Court declined to decide this question because the Legislature did not necessarily intend for private non-meandered waters to be open for public recreational activities.  The Court affirmed the circuit court’s decision to grant declaratory relief, but it remanded for modification of the language.  The modified language provides that it is the Legislature’s responsibility to decide whether the public can access private waters for recreational activity, but that there is currently no legislative authorization that allows the public to enter or use the private waters or ice for recreational purposes.

Second, the State contended that the circuit court erred in granting an injunction that stopped the public from using the waters without permission from the Landowners.  The State claimed the Landowners had no protectable right because the State holds South Dakota’s waters in trust for the public and controls the waters for the “benefit of the public.”  The Court agreed that the Landowners did not have an exclusive right because all waters in the state are public property.

The Court held that the public’s superior right to use the waters for “public purposes” functions as a qualification of the Landowners’ rights, but the Legislature had not clarified whether “public purpose” included the public’s right to use non-meandered waters for recreational purposes.  Thus, the Court remanded the circuit court’s injunction for modification.  The court held that the injunction prohibited the GF&P and others from facilitating access for the public to enter and use the water or ice on the private property for any recreational purpose, absent legislative authorization.

Accordingly, the court affirmed and remanded the declaratory relief and remanded the injunctive relief to modify the language.

Andrea Hagler


In Re Scott Ranch, LLC

In re Scott Ranch, LLC, 402 P.3d 1207 (Mont. 2017) (holding that: (i) water rights claims were recognized under state law, not as a federally reserved water rights established under the Crow compact; and (ii) the water court lacked jurisdiction to adjudicate the water rights claims, which should instead be filed with the Department of Natural Resources and Environment under the exempt claims filing procedure pursuant to the revised statute).

Scott Ranch is a Montana limited liability company owned by three non-Indian siblings that acquired Indian allotment lands in Big Horn County within the Crow Indian Reservation (“Crow Reservation”) in Montana.  The lands were previously held in trust by the United States for the benefit of Thor Lande, a member of the Crow Tribe who was an allottee of the Crow Reservation’s federally reserved water right.  Lande passed away in 1997, and the United States issued fee patents and converted the lands to fee status in 2006.  Scott Ranch purchased the lands from an heir of Lande in 2010 and 2012.    

In July of 2016, Scott Ranch filed for adjudication of existing water rights in the water court, asserting all of its forty-seven claims were exempt from the filing requirements of sections 85-2-221 and -222 of the Montana Constitution.  Scott Ranch claimed that its water rights were not available for state adjudication until 2006 when the fee patents were issued, and it filed the petition on the ground that the recent issuance of fee patents created a unique set of facts that prevented it or its predecessors-in-interest from seeking adjudication until now.  Scott Ranch additionally claimed that it possessed “Walton” rights, water rights held by a non-Indian successor to allotment lands derived from the allottee’s share of the federally reserved water rights for the reservation, as appurtenances to the lands.  

In November 2016, the water court denied Scott Ranch’s petition and held that the water rights were part of the Tribal Water Right established under the Crow Compact because Scott Ranch’s water rights were appurtenant to an allotment and the allottee’s water rights were part of the Tribal Water Right.  Consequently, the water court determined that Scott Ranch’s water rights did not require separate adjudication.  After Scott Ranch moved for amended judgment in December 2016 that its Walton rights should be subject to state law, the water court held that Scott Ranch’s water rights did not exist until the ratification of the Crow Compact in 1999; therefore, Scott Ranch had no separate water rights, and the allottees could not have conveyed such a separate right.  Scott Ranch appealed.  

The Supreme Court of Montana first considered whether Scott Ranch had “existing” water rights.  The Water Use of Act of 1973 (“the Act”) defines an existing water right as a right to use of water that would be protected under the law as it existed prior to July 1, 1973.  All water rights appropriated after July 1, 1973, must submit to a mandatory permitting process administered by the Department of Natural Resources and Conservation (“the Department”).  Federal law mandates that an Indian reservation receives an implied entitlement to the water rights within its boundaries with the priority date being the date of the reservation’s creation.  The Crow Reservation’s water rights have a priority date of 1868; thus, the Crow Tribe’s water rights were “existing” prior to the enactment of the Act, which means that Scott Ranch’s water rights existed as well.  

Next, the Court answered the question of whether Scott Ranch has Walton rights.  Non-Indian successors to Indian allotment lands acquire Walton rights because the water rights appurtenant to the tribal member’s land transfer to a non-member when the tribal member conveys the land to the non-member.  Scott Ranch is a non-Indian successor-in-interest to allotment lands conveyed by Lande. Therefore, it possesses Walton rights.  

Third, the Court affirmed that Scott Ranch’s water rights are governed by state law.  Under the Crow Compact, state law recognizes water rights held by a non-tribal member that the United States does not hold in trust.  Scott Ranch acquired the water rights from a tribal allottee, not out of the Crow Compact, and therefore state law governs its rights.  

Lastly was the question of whether the water court had jurisdiction to adjudicate Scott Ranch’s claims.  All claims for existing water rights must have been filed by July 1, 1996 under Section 85-2-221(1) of the Montana Constitution unless exempted by Section 85-2-222.  Water rights claims existing before 1973 are exempt if they are for livestock or individual uses as opposed to municipal uses, but an amendment to the Act allows claims for exempt water rights to be filed until June 30, 2019, which must be adjudicated through the required filing procedures with the Department.  Forty-five of Scott Ranch’s forty-seven claims were for livestock or individual uses and were thereby exempt from the filing deadline.  Its other two claims, Scott Ranch argued, were not subject to the exempt claims requirements even though they were not for livestock or domestic uses.  However, the water court may not adjudicate claims of non-exempt water rights filed after July 1, 1996.  Thus, the water court did not have jurisdiction over Scott Ranch’s claims and could not hear its petition.    

Accordingly, the Supreme Court reversed the water court’s judgment denying Scott Ranch’s petition and remanded the case with instructions to dismiss without prejudice so that Scott Ranch may file exempted water rights claims with the Department using the proper filing procedures under the revised statute.   

Gianni Puglielli


Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144 (9th Cir. 2017) (holding that: (i) the Tribe lacked Article III standing by failing to demonstrate that its interests in acquiring an adequate supply of water would be threatened by the publication of an Environmental Impact Statement and related documents by the Secretary of the Interior regarding surplus guidelines for water from the Colorado River for use within the Lower Basin and storage of such surplus water; (ii) the Tribe lacked Article III standing by failing to demonstrate that it would suffer injury to: (a) its unquantified reserved water rights and (b) its generalized interest in water from the Department of the Interior’s adoption of surplus and shortage guidelines for the waters of the Colorado River for allocations to Western states; and (iii) waiver of sovereign immunity applied to the Tribe’s breach of trust claim against the United States).

            The Navajo Nation (“the Nation”) is a federally recognized Indian tribe that lives on the Navajo Reservation (“the Reservation”), which is the largest reservation in the United States and was established by treaty in 1864.  Its area covers parts of Arizona, New Mexico, and Utah, and most of its western border is demarcated by the Colorado River (“the River”).  The Department of the Interior (“DOI”), through the Bureau of Reclamation, controls the flow of the River’s waters.  Additionally, numerous statutes, Supreme Court decrees, interstate compacts, common law, and treaties affect the management of the River’s waters, which together constitute “The Law of the River.”

            Seven states entered into the Colorado River Compact in 1922 (“1922 Compact”), which divided the River into two parts—the Upper and Lower Basin.  The instant case concerns the Lower Basin only, which includes Arizona, California, and Nevada. Under the 1922 Compact, the Lower Basin is entitled to 7.5 million acre-feet per year (“mafy”) of water. The obligations of the United States to Indian tribes were not affected by this compact.  The Boulder Canyon Project Act of 1928 allocated the 7.5 mafy of water—4.4 to California, 2.8 to Arizona, and 0.3 to Nevada.

            In 1964, a decree (“1964 Decree”) was issued in Arizona v. California that authorized the Secretary of the Interior (“the Secretary”) to determine whether there was a surplus or shortage of water.  In times of surplus, the Secretary parceled out the relative shares each state would get; in times of shortage, the Secretary satisfied states’ water rights in order of their priority dates.  Any water that is left over after distribution must be apportioned in accordance with all applicable federal statutes and regulations, such as the Boulder Canyon Project Act.

            In 2001, the Secretary of the Interior adopted the Colorado River Interim Surplus Guidelines (“Surplus Guidelines”). Before adopting the Surplus Guidelines, the Secretary published an Environmental Impact Statement (“EIS”) that analyzed the environmental impacts of four alternatives to the Guidelines along with a “No-Action Alternative.”  Ultimately, the Secretary decided that the Surplus Guidelines were the most preferred alternative.  Coincidentally, the driest eight-year period in the River’s history followed the Secretary’s adoption of the Surplus Guidelines, so the Secretary implemented guidelines for shortages (“Shortage Guidelines”).  The Secretary published another EIS for the Shortage Guidelines, which discussed Indian Trust Assets, including water rights.  The EIS acknowledged that the Shortage Guidelines would have no substantive impact on any Indian Trust Assets.

            The Nation filed its original complaint against DOI, the Secretary, the Bureau of Reclamation, and the Bureau of Indian Affairs in March of 2003.  The Nation claimed that: (1) under the Administrative Procedure Act (“APA”) and the 2001 Surplus Guidelines, the Secretary violated the National Environmental Policy Act (“NEPA”) by failing to protect the Nations interests in and rights to water in the Lower Basin of the Colorado River; and (2) that the United States breached its trust obligations to the Nation by failing to protect the Nation’s water rights.  Various state and local governments from California, Arizona, Nevada, and Colorado intervened as defendants.  In October 2004, the district court stayed the proceedings to allow for settlement negotiations.

In 2013, the district court lifted the stay and restarted the litigation.  The Nation amended its complaint twice to challenge the 2008 Shortage Guidelines.  The district court granted defendants a motion to dismiss the second amended complaint without prejudice, holding that: (1) the Nation lacked Article III standing to file its NEPA claims; and (2) that its breach of trust claim against the United States was barred by sovereign immunity.  The Nation appealed.

The United States Court of Appeals for the Ninth Circuit (“the Court”) first addressed whether the Secretary’s adoption of the Shortage and Surplus Guidelines violated the Nation’s unquantified Winters rights, which are rights to implicitly reserved waters for a reservation by the United States necessary to accomplish the purpose of the reservation.  The Nation alleged that the Guidelines caused a procedural injury.  To demonstrate a procedural injury, a plaintiff must show that: (i) the agency violated certain procedural rules; (ii) those rules protect a concrete interest of the plaintiff; and (iii) it is reasonably probable that the challenged action threatens that concrete interest.  Additionally, the interest harmed must be specific to the plaintiff.  The harm also does not need to be immediate, so long as there is a reasonable probability that the procedural violation will cause future injury.

The Nation contended that the Guidelines would make it “increasingly difficult” to secure and satisfy its water rights in the Lower Basin because the Guidelines created a system of third-party reliance upon the Colorado River in which entities besides the Nation rely on water supplies that belong to the Nation.  Further, the Nation alleged that the United States would be disinclined to re-open the issue of water rights in the Colorado River because the Lower Basin states are satisfied.  However, the Court concluded that the Nation’s arguments only demonstrate practical impairments of its interests instead of legal impairments.  This, the Court held, is insufficient to constitute an injury sufficient for Article III standing.

Second, the Court determined whether the Guidelines caused an injury to the Nation’s generalized interest in Lower Basin water.  Although the Nation does not have decreed rights to Lower Basin water, it may still be eligible for standing because the need for water to sustain the Reservation is a cognizable interest that may provide standing under NEPA.  The Nation’s argument was simply that it would have less Lower Basin water available due to the Guidelines. It contended that the Surplus Guidelines would limit the Nation’s supply by allocating all surplus water each year, and the Shortage Guidelines would limit the Nation’s supply because its share is charged against Arizona’s apportionment, which is already the smallest of the Lower Basin apportionments. The Nation feared that either excessive “Intentionally Created Surplus” (“ICS”) development or an increased likelihood of a declared shortage will reduce the availability of water for its lands.

The Court held that the Nation has not suffered an injury to its generalized interest in water sufficient for Article III standing.  First, the Guidelines merely prescribe the conditions necessary to declare either surplus or shortage—they do not make allotments of water themselves.  Second, a statute—not the Guidelines—provides the prioritization scheme that disadvantages Arizona.  Third, the Nation failed to demonstrate how the Guidelines would make it more likely that a shortage will be declared.  Finally, the Nation’s argument that excessive ICS development will limit its supply of water was flawed because the Guidelines only allow users to bank water for the purpose of banking it—users must offset their water consumption when any of it is banked.

Finally, the Court held that the Nation’s breach of trust claim against the United States was not barred by sovereign immunity.  Section 702 of the APA provides that a party who suffers a legal wrong as a result of agency action is not barred from filing suit against the agency or an officer thereof on the ground that it is against the United States.

            There was a split in the Ninth Circuit regarding the interpretation of Section 702, so the Court consolidated the two interpretations into one rule.  The Court concluded that: (1) Section 702 waives sovereign immunity for all non-monetary claims; and (2) Section 704’s final agency action requirement is limited only to actions brought under the APA. Because the Nation sought non-monetary relief against DOI, DOI’s sovereign immunity was waived.

            Accordingly, the Court affirmed the district court’s ruling that the Nation is not entitled to relief for its NEPA claims.  However, the Court reversed the district court’s ruling that the Nation’s breach of trust claim was barred by sovereign immunity and remanded it to the district court for full consideration the issue.

Gianni Puglielli


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

Denver, Colorado                         Friday, March 30, 2018

BUILDING MUNICIPAL WATER SELF-DETERMINATION IN DIVERSE METROPOLITAN COMMUNITIES

The final panel of the day, titled “Building Municipal Water Self-Determination in Diverse Metropolitan Communities,” explored how working-class and minority communities use, access, and are impacted by water.  Tom Romero, Assistant Provost of Inclusive Excellence Research and Curriculum Initiatives and Professor of Law at the University of Denver Sturm College of Law, presided as moderator for the panel.  The speakers came from a range of backgrounds, including Daniel J. Arnold, Staff Attorney for Denver Water, Lizeth Chacón, the Executive Director of the Colorado People’s Alliance (“COPA”), and Khyla Craine, Assistant General Counsel for the NAACP.

Professor Romero gave a brief introduction of the panelists and stated that the goal of this panel was to engage in a discussion around the disparity in access to water for marginalized communities.  He then asked the panelists to speak on their connections to this discussion and their background on water issues.

Kyla Craine spoke first regarding her background with the NAACP and her part in advancing equal water access for under-served and neglected communities.  According to Craine, she plays the role of an environmental lawyer through the lens of social justice.  In this role, she tries to empower local communities to seek safe and equitable access to clean water for drinking and sanitation.

She went on to explain that the NAACP became involved in water issues around 2006 by fighting against waste emanating from coal fired powered plants and their polluting effects on air and water quality.  These plants often deposit coal ash waste—including carcinogens such as mercury, arsenic, lead, and chromium—in waterways.  Those who are most affected tend to be poor, marginalized, politically depressed, and communities of color.  NAACP used litigation and community activism to shut down plants causing this pollution. Out of this mission grew a larger social justice concern for the NAACP to provide safe water for drinking and sanitation throughout the United States.

One of the current major focuses of the NAACP is lead contamination in water supplies. The most publicized case takes place in Flint, Michigan, where lead contamination has affected over 9,000 children.  This was caused by a series of institutional failures in switching water supplies that corroded old lead pipes in the municipal water system.  Now, residents are economically trapped because poor residents already lacked the means to leave, and now their property values have also plummeted due to the contamination.  However, this problem is not unique to Flint.  A Reuters report found over 3,000 American communities had higher levels of lead than Flint.  Pennsylvania, Indiana, and Missouri all have shown elevated levels of lead in children.  There are many sources, ranging from coal ash waste in rural areas to leeching from old pipes.  To combat this, NAACP takes varying approaches—ranging from litigation to activism—always with the goal of empowering citizens to advocate on behalf of their communities to combat this silent problem.

Lizeth Chacón spoke next about the Colorado People’s Alliance and their grass root efforts towards racial and economic justice for clean water.  Their efforts began by fighting against fracking in local communities, and has evolved into a comprehensive water justice campaign.  COPA’s work on water begins within the individual community.  COPA members have been participating in a grass roots door-to-door campaign to raise awareness about fracking in local communities.  Through these conversations, COPA has found that over fifty percent of citizens in Commerce City and Montbello, Colorado do not feel like their water is safe for use, and they rely heavily on bottled water as an alternative.  COPA noticed a clear correlation between unsafe drinking water and community based racial and economic divides.

COPA has started working with these communities to look for a solution to this problem.  Part of this process involves helping people get their water tested to ascertain if the water is, in fact, contaminated.  The second component is trying to figure out where these safety issues are coming from.  Are they leaks from old infrastructures, do they come from mining activities, or are they brought about from some other source?  According to Chacón, at the end of the day, everyone deserves clean and safe water, and the current consensus is that that need is not being met.  So, COPA is stepping up to help communities find a solution.

Daniel Arnold rounded out the panel as a thirteen-year veteran of Denver Water’s general counsel.  His work has focused on water quantity and quality issues for the City and County of Denver.  But recently, water quality has become an issue of great importance, whether it is keeping operating mines in check to ensure they do not pollute into watersheds or expanding the State’s reclaimed water regulations to add new and non-potable uses for reclaimed water.  Denver Water also works on a lead response program to identify and help replace sources of lead contamination.

To give a bit of background on Denver Water, Arnold walked listeners through how the utility was created over 100 years ago as an independent agency of the City and County of Denver.  It now serves approximately 330 square miles and 1.4 million people.  Arnold described Denver Water as the beneficiary of timing, geography, and hydrology—all leading to providing clean, quality water to many communities throughout Colorado’s Front Range.  Denver’s rights are more senior than many other water rights in Colorado, allowing for a consistent, uninterrupted water source.  They source water primarily form the Upper Colorado Basin and Upper South Platte River, diverting relatively pristine sources of water for their customers.  Hydrologically, most of the water comes from cleaner surface water, while many other communities rely on underground water sources contaminated by waste seepage.  Timing, geography, and hydrology combine to allow Denver Water to supply water that meets and exceeds EPA standards.

But Denver Water is still mindful of other pollution sources like lead. This largely comes from the customer line connections or lead solder and fixtures in the lines.  Since, historically, customers have owned their own service lines, there isn’t a good record of where the lead that does leach into the system originates.  However, research shows lead service lines predominate in houses built in the 1950s or earlier, before copper lines came into use.  Denver Water has concluded that there are approximately 15,000 lead service lines in the Denver area.  Denver Water has started a program to provide free water quality tests to determine if customers have a lead service line or fixture.  It also provides loans, at little or no interest, to remove and replace these fixtures.  These programs are designed to ensure that anyone can check and reasonably protect the quality of their water coming from Denver Water.

With opening remarks concluded, the panel moved on to the question and answer segment.  Romero began the discussion with questions regarding the challenges faced by different communities seeking safe water access.  The questions revolved around issues such as how context matters when thinking about water access and delivery (e.g., rural versus metropolitan, or urban versus suburban).  Arnold pointed out that urban areas have deeper pockets to pay for the construction of expensive water quality systems, and greater access to certified, trained professionals.  As a result, rural communities often get left in the lurch.  Craine agreed pointing out how, in the southern and eastern parts of the United States, waste from coal fired plants tends to be located in rural communities.  This is because cities tend to have a stronger voice to say “not in my backyard.”  Chacón had a slightly different take.  In her experience, economic class seemed to play a larger role. For instance, from COPA’s canvasing efforts, they found distrust of the local water was concentrated in communities of color and in working class communities where the median annual income is $60,000 and under.

It was interesting to note the different perspectives of the panelists to common issues.  Craine and Chacón viewed water access through a more civil rights and social justice perspective, while Arnold was steeped deep in Colorado water law, particularly in the Prior Appropriation doctrine.  However, all the panelists often agreed on the sources of the problem and what viable solutions might look like.  Ultimately, it was invaluable to hear these varied perspectives on how to tackle these impending issues and reconcile the problems created by disparate access to and availability of clean water.

 

 

Michael Larrick

 


United States v. N. Colo. Water Conservancy Dist., 2017 U.S. Dist. LEXIS 42298 (D. Colo. 2017) (certifying unopposed facts surrounding Denver’s conditional right to 654 cfs from the Blue River Decree and vacating the 1977 Order compelling federal jurisdiction over in-state water issues arising from the Blue River Decree).

The ruling in this case from the United States District Court for the District of Colorado resolves a long-standing issue involving federal jurisdiction over water law in Colorado.  The United States first brought this action in 1949 to determine federal interests in the water flowing from the Blue River and stored in the Green Mountain and Dillon reservoirs.  Between 1949 and 1955, various companion cases were joined to the first action.  These cases involved non-federal water rights but remained under the jurisdiction of the district court under the terms of the 1955 Decree settling the original dispute.

The instant issue arises under that long arm of federal jurisdiction.  In 2006 (and with an amended complaint in 2013), Denver sought to make absolute an additional portion of its conditional rights under the 1955 Decree, which granted the city a conditional right to 788 cfs.  Prior rulings had made absolute 520 cfs, to which Denver wanted to add 134 cfs, bringing its total absolute right to 654 cfs.  All parties who initially opposed this change reached independent agreements with Denver outside of the court system.  Thus, the court found no live controversy to review.  The court did certify that: (1) all parties agreed Denver had been diligent in developing the full 654 cfs at issue for beneficial use; (2) Denver had a conditional right to that amount; and (3) that all parties were estopped from asserting otherwise.  Despite Denver’s diligence and the lack of opposition, the court declined to grant Denver the absolute right it requested.

The court then turned its attention to the jurisdictional issues of the case, and the Blue River Decree at large.  When the initial case involving Blue River rights first entered federal court, Colorado had not yet developed the sophisticated water court system that is in place today.  Even after establishing the water courts in 1969, federal judges were still more apt at adjudicating certain water rights issues due to years of prior experience.  In 1977, a federal judge issued an order regarding the Blue River Decree that kept the companion cases under federal jurisdiction even after the federal water issues had been resolved.  The present court surmised that order was intended to allow federal judges, who have more knowledge and expertise on the subject, to supervise or help with transitioning water law case adjudication to the Colorado Water Court for District No. 5.

Given the changing circumstances behind this case’s long history, the District Court vacated the 1977 Order, removing federal jurisdiction over state water issues within the Blue River Decree.  While the court ruled separately on the issues of federal jurisdiction and Denver’s claim on the 654 cfs water right, the key takeaway seems to be that the Colorado water court, not the federal courts, is the proper venue for determining if Denver can perfect its conditional rights under the Blue River decree.

 

                                                            Joseph Chase


City of Blackfoot v. Spackman, 396 P.3d 1184 (Idaho 2017) (holding that: (i) the City must file for transfer before using its water permit for groundwater recharge; (ii) a settlement agreement with a private party does not allow the City to use its permit for groundwater recharge or mitigation purposes affecting future groundwater rights; (iii) seepage from the City’s water use cannot be a basis for a claim of separate or expanded water right without transfer; and (iv) intervening parties were entitled to recover their attorney fees).

Currently, the City of Blackfoot (the “City”) pumps water from the Blackfoot River and delivers it to irrigators east of I-15.  In order to save money on the cost of operating and maintaining the pump, the City filed a water right application for permit No. 27-12261 (“12261”) to appropriate 9.71 cfs of groundwater from the Blackfoot River.  The City wished to offset the injury resulting from this appropriation with 1,066 afa of mitigation credit resulting from seepage that occurs under Water Right No. 01-181C (“181C”).

Under its “purpose of use” element, 181C allows for five different uses: Irrigation Storage, Irrigation from Storage, Diversion to Storage, Recreation Storage, and Irrigation.  During the irrigation season, this element allows the City to divert 2,466.80 afa from the Snake River to fill a recreation reservoir in Jensen’s Grove.  From that diversion, 1,100 acre-feet travels to the reservoir for recreational storage, 980.9 acre-feet seep into the aquifer, and 186 acre-feet evaporate.  At the end of the season, the remaining 1,100 acre-feet seep into the aquifer.

The other provisions element of 181C states that the use and diversion of water is subject to “additional conditions and limitations contained in a settlement agreement—IDWR transfer of water right. . . .” (“Settlement Agreement”).  The Settlement Agreement states that the City “must file the appropriate application for permit and/or transfer” if it wishes to use 181C for groundwater recharge or mitigation purposes.

In its application for 12261, the City proposed using part of the seepage described in 181C as mitigation for 12261.  The application met protest from the Coalition, comprising A&B Irrigation District, Burley Irrigation District, American Falls Reservoir District #2, Minidoka Irrigation District, Milner Irrigation District, North Side Canal Company, and Twin Falls Canal Company—the intervenors in this case, who claimed that the City failed to establish that 12261 would not reduce the quantity of water under existing rights.

After holding an administrative hearing, the hearing officer determined that that the proposed appropriation in 12261 was a consumptive use of water and would reduce the quantity of water available under existing rights without mitigation.  The hearing officer concluded that the City could not use 181C as mitigation for 12261 because 181C does not authorize the City to use the seepage described in 181C for recharge.  Despite this, the hearing officer approved 12261 on the condition that the City apply for transfer to add recharge as an authorized purpose for 181C.

The City filed exceptions to the hearing officer’s rulings, challenging the requirement that it needs to apply for a transfer to add recharge as a purpose of use before it can use 181C for mitigation.  The Director of the Idaho Department of Water Resources (IDWR), reviewed the City’s exceptions and agreed with the hearing officer that 181C does not authorize the City to use water for recharge and a transfer would be required to authorize such use.  However, the Director disagreed with the hearing officer’s grant of conditional approval and denied the application for 12261 without prejudice, suggesting the City could refile its application for 12261 in conjunction with a transfer application for 181C.

Following the Director’s order, the City filed a petition with the district court asserting that the Director’s ruling was contrary to law.  After permitting the Coalition to appear as intervenors, the court held a hearing on the City’s petition.  The Bingham County District Court found that the plain unambiguous language of 181C’s “purpose of use” element does not authorize the City to use water for recharge, and if the City wanted to use 181C as mitigation for 12261, it would have to file a transfer.  The City appealed.

The Court first addressed whether the City must file for a transfer before it can use 181C for mitigation or recharge.  If a decree’s terms are unambiguous, the Court will determine the meaning and legal effect of the decree from the plain and ordinary meaning of its words.  Whether ambiguity exists in a decree “is a question of law, over which this Court exercises free review.”

Water rights are defined by elements, and Idaho Code sections 42-1411(2) and 42-1411(3) include a list of elements that define a water right.  Under Idaho Code section 42-1412(6), a water decree “shall contain or incorporate a statement of each element of a water right as stated in subsections (2) and (3) of section 42-1411, Idaho Code, as applicable.”  “Purpose of use” is one of those defining elements.  Thus, a water decree must either contain a statement of purpose of use or incorporate one, but not both.

There is no reference to an incorporated statement in the “purpose of use” element, but 181C contains a clear statement that provides water may be used for: (1) Irrigation Storage; (2) Irrigation from Storage; (3) Diversion to Storage; (4) Recreation Storage; and (5) Irrigation. Recharge is not listed as a use of 181C. The City’s argument that recharge is an authorized use of 181C does not stand because it is a statutorily recognized beneficial use and therefore must be included in the “purpose of use” element to be recognized.

The history of this water right, as the district court suggested, supports the denial of recharge being an authorized use.  Water Right 181C was acquired by the City in 2005 to fill and maintain the reservoir at Jensen Grove.  The City filed an application for transfer with the Department and sought to add recreation, storage, and recharge as authorized uses in addition to the original use of irrigation.  In 2007, the Director approved irrigation, storage, and recreation but did not approve recharge as an authorized use.  If the City wished to remedy this, it needed to abide by the administrative requirements, but it did not make an effort to do so.  In May of 2009, the District Court entered a Partial Decree for the right in the Snake River Basin Adjudication, which did not include the right to recharge.  The City could have objected to the denial of the recharge right or appealed the decision of the District Court, but it did not seek either of these remedies.

The Court determined that the City must file an application for transfer to change the purpose or nature of a use of water right under Idaho Code § 42-222(1) and that the City’s claims that recharge is an authorized use under the purpose of use element of 181C were unfounded.

The Court next addressed whether the Settlement agreement added recharge as an authorized use of water under 181C.  The City argued that the plain language, “to use 181C for groundwater recharge or mitigation purposes associated with future groundwater rights….” authorizes the use.  The Court disagreed with this argument because a private settlement cannot define, add, or subtract from the elements of a validly adjudicated water right.

The City next argued that the Settlement Agreement, as a document incorporated under the other provisions element of 181C, must be “construed along with the rest of 181C” and may affect all the elements of 181C and, specifically, may add recharge to the purpose of use element.  The Court rejected this argument for two reasons.  First, it flies in the face of Idaho statute, which only allows an element to either contain a statement defining the element or incorporate a statement that defines the element.  The City’s argument would allow both, which is impermissible under the language and would muddy the decree. Second, an adjudicated water right is a judicially decreed property right and binds the IDWR.  The IDWR was not a party to the settlement agreement, and therefore, the Director is not bound by the Settlement Agreement and has no duty to enforce it.  This is made clear by the language incorporating the Settlement Agreement into the other provisions element of 181C: “The diversion and use of water under transfer 72385 is subject to additional conditions and limitations contained in a settlement agreement . . . the settlement agreement is recorded in Bingham county [ ] and Bonneville county [ ] and is enforceable by the parties thereto.”

Consequently, the Settlement Agreement cannot define, add, or subtract from the defining elements of 181C.  It can only provide “additional conditions and limitations” on the exercise of 181C.  To allow the Settlement Agreement to enlarge or otherwise alter the clearly decreed elements of 181C would allow private parties to alter a judicial decree.

The Court then determined if the circumstances demonstrate mitigation for 12261 regardless of the elements of 181C. The City argued that incidental recharge occurs from the seepage each year at the Jensen reservoir, and therefore, recharge should be an authorized use of 181C without filing a transfer.  However, the Court held that recharge is a statutorily recognized beneficial use which must be identified under the purpose of use element of a water right.  Water right 181C does not include recharge, and incidental recharge cannot be used to claim or expand that water right. Accordingly, without a transfer approving recharge as a beneficial use, any seepage that occurs under 181C is incidental recharge and not eligible to be used for mitigation purposes.

The Idaho Supreme Court affirmed the District Court ruling that the plain unambiguous language of 181C’s purpose of use element does not authorize the City to use water for recharge and if the City wanted to use 181C as mitigation for 12261 it would have to file a transfer.

Natalie Norcutt