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

Eugene, Oregon        March 2–5, 2017

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

 

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

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

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

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

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

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

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

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

Matthew Kilby

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


35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

Agricultural Water Conservation: Is It Really So Simple?

 

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

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

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

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

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

Tina Xu

 

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

 


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

Denver, Colorado                         April 7, 2017

Science and the Courtroom: How Modeling Is Changing The Game

 

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

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

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

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

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

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

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

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

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

Gracen Short


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

Eugene, Oregon        March 2–5, 2017

California Groundwater Management

 

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

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

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

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

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

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

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

Matthew Kilby

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


Silver v. Pueblo Del Sol Water Co., 384 P.3d 814 (Ariz. Ct. App. 2016) (holding: (i) that the Arizona Department of Water Resources’ (“ADWR”) interpretation of “legal availability” was valid under the statute defining “adequate water supply”; (ii) that ADWR must consider an unquantified federal reserved water right for the purposes of an Adequate Water Supply Designation (“AWSD”); and (iii) that ADWR was not required to separately consider the impact of pumping on a conservation area and the local surface or groundwater).

In 1988, the United States Congress designated roughly thirty-six miles of the San Pedro River basin (“Basin”) as a national conservation area (“Conservation Area”), and simultaneously created a federal reserved water right for the Conservation Area “in a quantity sufficient to fulfill the purpose” of protecting the public lands surrounding the River. The Bureau of Land Management (“BLM”) manages the Conservation Area. Since 1989, the BLM has filed three statements of claim for the Conservation Area covering surface and groundwater.

The General Stream Adjudication for the Gila River System (“Gila Adjudication”), active for approximately 40 years, has exclusive jurisdiction to adjudicate the conflicting claims and water rights for the Basin. BLM federal reserved rights are part of the the Gila Adjudication. The Gila Adjudication will determine whether BLM “has a reserved right to the groundwater ‘where other waters are inadequate to accomplish’” the reservation’s purpose and the minimum amount necessary to achieve that purpose.

Pueblo Del Sol Water Company (Pueblo) is a private water company. Pueblo serves an area five miles from the San Pedro River. In June 2011, Pueblo applied for an AWSD, which would allow it to pump groundwater to a planned community subdivision and other projects. Pueblo’s application included its Certificate of Convenience and Necessity (“CC&N”), a certification provided by the Arizona Corporation Commission to public utilities. Pueblo sent its application to ADWR, the agency that reviews AWSD applications. Ariz. Rev. Stat. § 45—108 requires subdivision developments outside active water management areas to show the existence of an adequate water supply as designated by ADWR. Under ADWR’s regulations, an adequate supply requires continuously legally and physically available water to satisfy the proposed needs for at least one hundred years. BLM objected to the Pueblo’s application, citing failure to properly analyze availability of water under ADWR’s regulations.

ADWR rejected the objection and accepted Pueblo’s application. BLM appealed to the Superior Court of Arizona, which reversed ADWR’s decision. The lower court held that ADWR abused its discretion because ADWR failed to meet its statutory duty to ensure that the water source will be available for at least 100 years. The lower court found that ADWR’s definition of “legal availability” erroneously allowed a decision to be based solely on whether the applicant had a CC&N. ADWR and Pueblo appealed the judgment.

On appeal, the Court of Appeals of Arizona decided three issues: (1) whether ADWR’s interpretation of “legal availability” under the statute defining adequate water supply was valid; (2) whether ADWR should have considered BLM’s unquantified reserved water right in its AWSD determination; (3) and whether ADWR was required to consider the impact of pumping on the Conservation Area and local surface and groundwater.

First, BLM argued that ADWR failed to make a valid determination of legal availability when it accepted Pueblo’s application without initially considering the federal government’s senior, unquantified federal reserved right. The court disagreed with BLM, finding that ADWR’s interpretation of legally available was valid when the statutes and regulations were read together.

Legal availability is a two step determination under ADWR’s interpretation of A.R.S. § 45–108(I)(1). First, ADWR must find that the water company is using the water for a reasonable and beneficial use. Second, ADWR must find that the water company has a legal means of delivering the water. ADWR has determined under R12–15–718(C) that the second step means a private water company has a CC&N.

The court agreed with ADWR that Pueblo’s planned use of the water was reasonable and beneficial because they planned to supply a subdivision with the water, thus satisfying the first step. The court also agreed with ADWR that Pueblo demonstrated a legal means of delivering the water because it had a CC&N, thus satisfying the second step. The court explained that ADWR’s determination that the second step requires the company to have a CC&N should be given great weight because the Director is an expert in the field vested with broad powers to achieve groundwater conservation. The court explained further that the department’s requirement that a water company have a CC&N kept with the consumer protection purposes of the statute because it requires the utility to be sufficiently financially viable to deliver, store, and treat such water.

The court also noted that in addition to determining mere legal availability, the Director of the ADWR has a more involved duty to determine whether adequate water is available. To make this determination, the Director is obligated to consider physical availability, which required the director to consider the water already commited to approximately 200 users. The ALJ determined that the Director considered Pueblo’s proposed water source and the demands from other users, and that Pueblo demonstrated that sufficient water would be available for 100 years.

Second, BLM argued that ADWR should consider its unquantified federal reserved water right, which has priority over Pueblo’s. ADWR countered by arguing that determination of those water rights fell under the exclusive jurisdiction of the Gila Adjudication and could not be adjudicated by ADWR in this proceeding. The court agreed with BLM, finding that ADWR not only had jurisdiction to consider the BLM’s claimed right, but had a duty to do so.

The court interpreted the language of R12–15–716(B), which requires the Director to consider the existing uses of groundwater, to include the consideration of the BLM’s federal reserved right. The court found that requiring ADWR to consider BLM’s right was in keeping with the intent of the groundwater statutes to protect Arizona’s economy and welfare, and to provide a comprehensive framework for the management and regulation of grounrwate, without compromising the preservation of the conservation area.

The court stated ADWR could use its expertise and knowledge to create an educated estimate of BLM’s quantified water right. However, the court distinguished ADWR’s duty to consider BLM’s claim from quantifying it. The court explained that quantification was the exclusive domain of the Gila Adjudication.

Finally, BLM argued that Pueblo’s proposed pumping might interfere with the Conservation Area and local surface or groundwater. The court found that ADWR was not required to separately consider the impact of pumping on the Conservation Area and local surface or groundwater. The court did not want to impose an obligation beyond ADWR’s obligation to consider adequate water.

Accordingly, the court vacated the judgment of the superior court, and remanded the action to ADWR with instructions to consider the BLM’s water rights claim in its evaluation of Pueblo’s application.

Trevor C. Lambirth

Image: Snow above the San Pedro River valley. Flickr user Lon&Queta, Creative Commons.


University Of Denver Water Law Review Annual Symposium 2017: At The Confluence: The Past, Present, and Future of Water Law

        Denver, Colorado                         April 7, 2017

Evolving Water Law and Management in the United States: Delaware, Kansas, Montana, and Interstate Litigation

Professor John Peck of the University of Kansas School of Law introduced the second panel of the 2017 Water Law Review Symposium entitled “Evolving Water Law and Management in the United States: Delaware, Kansas, Montana, and Interstate Litigation.” Professor Peck chose these states because they represent a cross-section of the United States. He highlighted the major differences in rainfall between the states and explained that these states differ in the way they use groundwater and the rights applied to it.

Professor James May of the Widener University Delaware School of Law presented first regarding Delaware, which was the first state in the country to have water law. Delaware applies riparian water rights, which is mostly derived from the state’s common law.

Water use greatly affects the abundant wildlife in Delaware’s waters. The Delaware Bay Estuary is habitat for many water-dependent species, including migratory birds, marine turtles, horseshoe crabs, and twenty threatened or endangered species. Delaware has a high extinction rate—second only to Hawaii.

 

Furthermore, since the Swedes landed in Delaware in 1658 and first established water laws, water rights have been an important part of industrial development. Water law established through common law focused primarily on mill owners’ rights until the late Nineteenth Century.

Administrative agencies also manage Delaware’s water resources. The Department of Natural Resources and Environmental Control (the “DNREC”) is responsible for regulating water in Delaware and enforcing the Delaware Coastal Zone Act. The legislature passed the Act in 1971 to prohibit new heavy industry, bulk transfer facilities, and other non-conforming uses.

A compact between Delaware, New Jersey, Pennsylvania, New York, and the United States created the Delaware River Basin Commission (the “DRBC”) in 1961 to address and regulate a variety of water quality and quantity issues affecting the Delaware River Basin, such as permitting, water conservation issues, drought management, flood loss reduction, and recreation. The DRBC covers land under the Delaware River down to the low water mark in Delaware and New Jersey. New Jersey has been trying to get ownership of the land under the river back to the 1700’s and 1800’s, and as recently as 2008, but Delaware has always won those lawsuits.

Professor Peck began his discussion of water issues in Kansas with a general description of water in the state. Northeastern Kansas receives a great deal more rainfall than the southwest, but the west has most of the groundwater. There are several large aquifers in western Kansas, including the Ogallala, Great Bend Prairie, and the Equus Beds, as well as federal reservoirs. Kansas has two major river basins—the Kansas-Missouri River Basin in the north and the Arkansas River Basin, which starts in Colorado and flows down through Wichita and Tulsa, and eventually converges with the Mississippi River.

Professor Peck discussed the evolution and sources of water law in Kansas. The courts established most water law from the time Kansas got its statehood in 1861 until 1945, but there were very few cases. The state adopted common law at formation, including riparian water rights for surface water and absolute ownership for groundwater.

From 1945 to 1967, a mix of legislative and judicial actions managed water law. The legislature passed the Kansas Water Appropriation Act in 1945, which changed water rights from the common law doctrines of riparian and absolute ownership to prior appropriation. People using water in 1945 could get vested water rights, but people who were not using water in 1945 lost any rights the day the Act went into effect. Kansas citizens who lost their water rights brought claims alleging the Act was unconstitutional because it was a taking for which compensation should be paid, but the Kansas Supreme Court upheld the constitutionality of the Act by a six-to-one decision.

From 1967 to the present, administrative, legislative, and judicial processes have governed Kansas water law. By the 1960’s, users were depleting groundwater aquifers so, in 1972, the legislature passed the Kansas Groundwater Management Act, which permitted groundwater management districts to be set up for local control.

In 1978, the legislature made it a crime to divert water without a permit, except for domestic use, and created new districts for Intensive Groundwater Use Control Areas (“IGUCAs”). These IGUCAs gave the Chief Engineer extraordinary power, including the ability to change priority dates. The Chief Engineer established nine IGUCAs, including Walnut Creek, which includes the Cheyenne Bottoms wetlands at its eastern edge. The Fish and Game Commission (“FGC”) applied for a permit covering Walnut Creek to help preserve wetlands.

The Division of Water Resources issued several hundred permits in the alluvial of Walnut Creek after 1950, and by the mid-1980’s the creek began to dry up. After the FGC asked for assistance, the Chief Engineer set up hearings and issued an order, which found the total annual quantity allowed under the existing permits was well beyond the long-term sustainable yield, and the reasonable amount needed for irrigation was 12-14” per year. The order divided the prior appropriation rights into two groups. Those who had their rights before October 1965 had senior water rights, but those who acquired their rights after that date had junior rights. The order reduced senior rights from 18” per year to 12-14”, and junior rights from 18” to 6 ¼ – 5 ¼”.

Looking towards the future, former Governor Sam Brownback created a new program called the “50 Year Vision,” which addresses construction of the Missouri River Aqueduct, climate change, global warming, and interstate conflicts. The biggest question the program seeks to address are whether the state will mandate further water restrictions and if those restrictions will be constitutional. Professor Peck believes water issues affecting Kansas may require a change from cattle production since it requires so much water to produce a pound of beef.

Next, Professor Irma Russell of the University of Missouri Law School spoke about Montana’s water management. The eastern part of Montana may be dry, but there is a lot of rain and flowing rivers west of Missoula. Professor Russell analogized water users to a family and described additional water needs like another child joining the family. She believes Montana is a great example of water law in the western states because Montana demonstrates how water law relates to something larger than law as a controversy. In 1865, two decades before Montana became a state, the territory’s legislature passed an irrigation law. When the state’s Constitutional Convention met in Montana in 1972, the delegates agreed to include the right to a clean and healthful environment in their state constitution.

In terms of future challenges, Professor Russell believes it is necessary to find a unifying theme between different voices that have different interests to be able to see water law in an atmosphere of service and solicitude to the need to exist and to thrive. Senior and junior water rights holders’ reasonable interests weigh against these concerns. Peoplere always looking to what they have, how things are shared, and who has a right to it. That is the call of defending rights and figuring out how to live together and thrive together in the future.

Professor Burke Griggs, a visiting professor at the Washburn University School of Law, spoke last about the history of interstate water litigation. The Classical Period from 1900 to 1949 consisted of equitable apportionment and reticence; compact resolutions; and Congressional apportionments like the Rio Grande. Groundwater extraction and compliance with compact rules has dominated interstate water issues during the last fifty years. This phase of interstate water litigation has also dealt with groundwater modeling fights. Overall, cases have been more successful when the litigants used shared modeling.

Professor Griggs discussed a few examples of recent interstate litigation. In Mississippi vs. Tennessee, the Special Master found the Doctrine of Equitable Apportionment applies, so Tennessee did not trespass or convert water when it pumped groundwater out of the Mississippi Embayment Regional Aquifer System. In Florida vs. Georgia, the Special Master found that Georgia was probably harming Florida by over-pumping groundwater and starving Georgia’s oysterbeds, but since the U.S. Army Corps of Engineers was not a part of the lawsuit, the Court could not help.

Looking forward, Professor Griggs posed several issues likely to come up in the future of interstate water, such as how states will respond over the next fifty years as water in the Ogallala decreases and if there will we be compact litigation over water quality?


Clark Fork Coal. v. Tubbs

Clark Fork Coal. v. Tubbs, 380 P.3d 771 (Mont. 2016) (holding that the Montana Department of Natural Resources and Conservation’s (“DNRC”) rule that required groundwater developments to be physically connected was inconsistent with the plain language of the statutory “combined appropriation” exception to the exemption of certain groundwater developments from the permit requirement).

Montana uses a comprehensive permit system for water appropriation.  Groundwater appropriations of less than thirty-five gallons per minute and ten acre-feet per year can be exempt from the permit requirement.  The law also contains an exception to this exemption.  Under the Act, groundwater appropriators must acquire a permit if the “combined appropriation” from two or more wells or developed springs that draw from the same source exceeds thirty-five gallons per minute and ten acre-feet per year.  Over time, the DNRC promulgated rules to further define “combined appropriation.”  The first of these rules (“the 1987 rule”) explained that groundwater developments need neither to “be physically connected nor have a common distribution system to be considered a ‘combined appropriation.”  The DNRC replaced this rule in 1993 with a rule (“the 1993 rule”) that instead requires a physical connection to exist between appropriations to count as combined.  Using the Act and the 1993 rule, exempt appropriations of groundwater rose by about 3,000 each year, totaling about 113,000.  These appropriations consume large quantities of water.

In response, the Clark Fork Coalition (the “Coalition”), senior water users affected by this consumption, petitioned the DNRC to declare the 1993 rule inconsistent with the statute.  After the DNRC refused, the Coalition petitioned the First Judicial District Court, Lewis and Clark County to invalidate the 1993 rule as inconsistent with the Act and to reinstate the 1987 rule.  The lower court agreed with the Coalition, reinstated the 1987 rule, and further directed the DNRC to initiate rulemaking to develop a new rule consistent with this ruling.  While the DNRC did not appeal the decision, the Montana Well Drillers Association, the Montana Association of Realtors, and the Montana Building Industry Association (the “Well Drillers”) did.  On appeal, the Montana Supreme Court considered whether the lower court erred when it invalidated the 1993 rule, reinstated the 1987 rule, and directed the DNRC to initiate a new rulemaking.

The Court broke the first question into two parts: whether the rule was inconsistent with the plain language of the statute and whether the legislature’s subsequent amendments adopted the interpretation of the 1993 rule.  The Court explained that, when deciding if a rule is inconsistent with statutory language, it must first ascertain the plain language meaning of the statute.  If a statute does not have a plain language meaning, then it is ambiguous.  Once the Court determines whether there is a plan language meaning, it will determine whether a rule is inconsistent or in conflict with the statute.  If it determines there is an inconsistency or conflict, then the rule is invalid.  The Court explained that an agency’s “subsequent inconsistent rules” do not create ambiguity in a statutory terms.  Then the Court explained that statutory amendments do not change the intent of unchanged language.

Applying these rules, the Court examined the plain language meaning of “combined appropriation” using dictionary definitions and grammar rules.  First, it explained that “appropriation” refers to a quantity of water removed.  Second, the Court explained that because “combined” precedes “appropriation,” “combined appropriation” means a combined quantity of water, not a physically combined groundwater development.  This placement does not allow “combined” to modify anything but “appropriation.”  Because the term refers to quantity, and not method of removal, the Court determined that the 1993 rule “effectively swallow[s] up the underlying exception” because it limits the exception to structurally combined appropriations by enabling groundwater appropriators to pump beyond the statutory limit as long as they did not physically combine their pumping systems.  This contradicts the intent of the legislature because it allows combined appropriations of a greater quantity than authorized by statute.  The Court went on to explain that the legislature’s amendments, which continually lowered the quantity allowed for exempt ground developments but left the combined appropriation language untouched, did not adopt the 1993 rule interpretation of the term because it did not modify the combined appropriation language.  Therefore, the intent of the combined appropriation language remained the same, consistent with the plain meaning of the original words and unchanged by the 1993 rule’s interpretation.  The Court rejected DNRC’s 1993 rule.

The second question, whether the lower court erred by reinstating the 1987 rule, appeared to the Court as a question of first impression.  The Court first looked to federal Administrative Procedure Act (“APA”) case law that replaced an invalidated rule with the previous valid rule.  Then it compared this approach to the similar approach for invalidated statutes and looked through the Montana APA for potential inconsistencies. Finding no inconsistencies, the Court adopted the federal approach to invalidated rules and held that lower court did not err by reinstating the 1987 rule.

Finally, the Court considered the Well Driller’s argument that the lower court could not require the DNRC to initiate rulemaking consistent with the order.  The Court reasoned that, because courts have the authority to “pronounce a judgment and carry it into effect,” the lower court could require rulemaking to be consistent with its order.  However, the Court agreed that the District Court could not compel DNRC to initiate a new rulemaking.  Because it is the DNRC’s responsibility to adopt necessary rules, it is the DNRC’s decision whether or not to keep the reinstated 1987 rule.

Accordingly, the Court partially affirmed the lower court’s decision invalidating the 1993 rule.

Justice Jim Rice, dissenting.

Justice Rice dissented.  He did not find the plain language of the statute “clear on its face.” He found it strange that the Court’s ruling implied that the “DNRC inexplicably misinterpreted and misapplied a clear statute for the past 23 years.”  Rather, he thought the Court found the significant increase in exempt appropriations startling and acted as a legislative body to correct a perceived policy failing.

             N. Rioux Jordan

Image: The Clark Fork River, which runs through Montana. Flickr User Micah Sheldon, Creative Commons.


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

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

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

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

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

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

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

Reggie Norris

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