35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

The Future of Indian Water Right Settlements in an Age of Uncertainty

 

Jennifer Gimbel, a senior research scientist at Colorado State University, moderated the panel discussion entitled, “The Future of Indian Water Right Settlements in an Age of Uncertainty.” Gimbel began her introduction by acknowledging that certainty is the main goal when identifying water rights; states and water users want to know what belongs to Indians and how they want to use it. Gimbel introduced two of the most pressing sources of uncertainty—funding and resources.   Over the last few years, states “ponied up” a considerable amount for successful settlements. Nonetheless, states want to maintain control over water, making it difficult to determine how water rights should be administered.

Pamela Williams, Director of the Secretary’s Indian Water Rights Office in the U.S. Department of Interior (“Department of Interior”), began her discussion by quoting Secretary Ryan Zinke:

I believe Indian water right settlements are a critical part of the United States government’s responsibility for tribes across the country. During my time as a Montana congressman, I fought [to ratify] the Blackfeet Nation’s water compact because water is both life to the Tribe and also a key resource for the surrounding community. Not only is water an economic driver, it is an important component of [Blackfeet Nation’s] culture and traditions. As Secretary of the Interior, I recognize the importance of maturing these resources.

Williams then said that water right settlements are not over, they will continue. By Williams’s count, over the past thirty years, Congress enacted thirty-one settlements. The Department of Interior is “hard at work” on the eighteen settlement negotiations in place and are implementing the recently enacted settlements.

Williams continued by discussing the way in which the Department of Interior handles Indian water right settlements. A group called “Working Group on Indian Water Right Settlements,” which is composed of high-level decision makers, including all assistant secretaries and the Solicitor, makes recommendations to the Secretary of Interior regarding Indian water right settlements. The Secretary’s Indian Water Rights Office coordinates Indian water rights settlements through teams in the field that include representatives from, inter alia, the U.S. Bureau of Indian Affairs, the U.S. Bureau of Reclamation (“Reclamation”), the Solicitor’s Office, and the U.S. Department of Justice.

In 1990, the Criteria and Procedures for Participation of Federal Government in Negotiating for Settlement of Indian Water Rights Claims was published in the Federal Register. Williams clarified that these Criteria and Procedures are not regulations, but rather they are guidelines agencies and administrations follow to determine what settlements it will support and the extent of federal contributions. Since the 1990 publication, every administration has applied the Criteria and Procedures with varied interpretations. Williams acknowledged that some individuals think they are poorly written, while others think they are a masterpiece of flexibility.

Williams then discussed a recent development regarding negotiating water rights settlements. In February 2015, Representative Rob Bishop, Chairman of the United States House Natural Resources Committee, sent a letter to the Department of Interior and the Department of Justice outlining the process that the House Resources Committee would follow when entertaining Indian water rights settlements. Specifically, he requested a formal statement from the Department of Interior and Department of Justice affirming post-settlement compliance with his additional criteria that emphasize compliance with the 1990 Criteria and Procedures focusing on financial aspects of settlements. The Department of Interior complied and provided statements on binding water right settlements, including the four passed in the 114th Congress. Those four included Blackfeet Water Rights Settlement Act – a “tremendous victory” – Pechanga Band of Luiseno Mission Indians Water Rights Settlement Act, amendments to the San Luis Rey Indian Water Rights Settlement Act, and Chocktaw Nation of Oklahoma and the Chickasaw Nation Water Settlement. Williams noted the Bishop process is functioning—although it is not followed in the Senate, it is followed in the House.

Vanessa Ray Hodge, an attorney at Sonosky, Chambers, Sachse, Endreson & Perry, continued the discussion by focusing on the Criteria and Procedures applied to Indian water rights settlements. The 1990 Criteria and Procedures purport to guide Indian water rights settlement negotiations. Hodge noted that the sixteen criteria were developed in response to a Federal executive branch desire to have a more principled negotiating role and intended to outline general policy goals that water settlements should reflect. These include substantive goals such as federal waivers, legal claims, appropriate financial contribution (including federal government and non-Indian parties), and procedural goals such as how to budget the settlements, types of funds to create settlement, and calculating infrastructure cost.

At the time the 1990 Criteria and Procedures were developed, Congress passed few settlements. Indian water rights settlements significantly increased and, over time, the Department of Interior and Department of Justice developed a specific approach to their application of criteria and procedures for settlements. Hodge opined that Department of Interior generally applies those procedures to all Indian water rights settlements, notwithstanding factual histories or circumstances related to individual tribes and their specific negotiations. In that regard, Hodge believes that, although the 1990 Criteria and Procedures are useful, they should be updated to reflect a more holistic approach to Indian water rights settlements.

Maria O’Brien of Modrall Sperling in Albuquerque, NM, took a step back from the technical discussion and first asked, “Why should we care about Indian water rights settlements?” The answer, she said, “Start[s] with the premise that Indian water rights require a source and certainty of access to supplied water to sustain homelands and economic development.”

Indian water rights settlements play a significant role by acting as a mechanism for solving a “complex conquest over water.” Thus, O’Brien continued, irrespective of ever-changing administrations, we will continue needing Indian water right settlements. Conflicts over water are consistent, and a myriad tribes throughout the United States are still without water rights settlements.

Settlements allow flexible, creative approaches and solutions to issues involving infrastructure and water allocation—issues that could not be addressed by simply quantifying Indian water rights in the context of litigation. Settlements, as opposed to litigation, unite states, the federal government, tribes, and other significant water users, which can provide varied resources not limited to financial contributions, such as modeling resources and technical assistance. These broad contributions enable the settlements to move forward and solve disputes over Indian water rights as well as local concerns about the water supply in a way that is not possible when resorting to litigation.

O’Brien then discussed a recent success in Indian water rights settlement arena — Oklahoma’s first Indian water right settlement between Choctaw Nation of Oklahoma and Chickasaw Nation. Congress enacted this Indian water right settlement in December 2016, after five years of negotiation. It started with litigation, but Oklahoma and the Tribes decided to “roll up their sleeves” and reach a settlement. The federal government participated in the negotiation and was instrumental in its success. O’Brien considers every settlement to be unique, and in this one, Oklahoma and the Tribes needed work through policy issues that sourced their mutual conflict for many decades. Although settlements are unique, common issues do prevail, such as a mutual desire to reach a resolution and identify core principles at issue. It can take a substantial amount of time for parties to articulate their individual needs. Even so, settlements are favored over litigation because they encourage resolution rather that frame settlements as purely adversarial.

Next, Williams discussed the way in which the federal government funds these settlements. In 2009, from the same Omnibus Appropriations bill that enacted the Navajo Water Rights Settlement Act, Congress created a reservation settlement fund that is apportioned from the Bureau of Reclamation fund containing billions of dollars. The reservation settlement fund only applies to settlements with a Bureau of Reclamation component and does not relieve financial pressure on the Bureau of Indian Affairs. The reservation settlement fund is intended to last until 2029 and provide roughly $120 million per year for certain identified settlements. These include the Crow and Blackfeet Tribes in Montana that settled for roughly $400 million each, and the Navajo Tribe in Arizona that settled for one billion dollars.

Finally, O’Brien extended the dialogue by differentiating the types of available funding. She first explained that congressionally enacted settlements rely on discretionary funding which only authorizes appropriations for each individual settlement. This discretionary funding is given to the Bureau of Indian Affairs and the Bureau of Reclamation (when projects involve a water settlement component) when the agencies ask for funds in their programmatic budget to fulfill financial obligations when settlements are enacted.

On the other hand, the 2010 Claims Resolution Settlement Act provided mandatory congressional funding for Indian water rights settlements enacted under this statute. For Congress to appropriate mandatory funding, it must find a same-year offset, meaning Congress reallocates funding from one program into another needing the mandatory funds. One of the first Indian water settlements receiving mandatory funding was the Crow Tribe Water Rights Settlement Act, which is almost fully funded, unlike the discretionary funding for the Pechanga and Blackfeet Tribes water rights settlements which are funded over time.

 

Gia Austin

Image: Lake Powell and Grand Staircase-Escalante as seen from space. Flickr user NASA, not copyrighted.


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

Eugene, Oregon        March 2–5, 2017

Transboundary Water Issues: Challenges and Opportunities

Presented by: Eric Benjaminson, former United States Ambassador; Todd Jarvis, Oregon State University; Austen Parrish, Indiana University School of Law; Fatima Taha, Oregon State University.

This panel consisted of four panelists who discussed separate challenges that attorneys and other professionals face when solving transboundary water issues.

Todd Jarvis, a hydrologist and professor at Oregon State University, began the discussion by outlining six issues anyone working in transboundary water agreements should be ready to face. Jarvis began by explaining the issue of conceptual models, which can be important—especially for groundwater—as they help fill in the gaps for our imperfect knowledge of groundwater formations. The problem, he noted, is that professionals working in different countries often use incompatible conceptual models and thus cannot even come to a basic mutual understanding. Second, Jarvis addressed the scope of regional authority. Some countries allow local management, whereas others use national legal frameworks, and while transboundary issues suffer from political tensions, local management can be particularly political. Third, a lack of data can prevent countries from wanting to agree to solutions. Fourth, boundaries can change, which can compound other issues associated with transboundary water agreements. Fifth, Jarvis discussed how “dueling experts” can hold back transboundary water agreements. He noted that hydrologists in particular can often come to different results depending on who is asking them to make a specific finding. When experts fail to come to a consensus, politicians and other stakeholders can cherry pick data and use it to their advantage indefinitely. Sixth, Jarvis stated that transboundary water agreements are expensive to reach. Small issues can delay agreements by decades and cost millions of dollars.

Next, Eric Benjaminson, a former United States Ambassador to Gabon and to São Tomé and Príncipe and former United States Economic Minister Counselor in Canada, discussed how international disputes over Devils Lake in North Dakota reflect the challenges that professionals working in transboundary water disputes must face. Following a local plan to allow a spillway to help drain the lake during times of high water, an international fight began. The plan for Devils Lake would have had a negative impact in Canada, notably on Lake Winnipeg, the eleventh largest freshwater lake on Earth. The Canadian government opposed the plan for decades and believed that it violated the international Boundary Waters Treaty. In 2005, North Dakota constructed the spillway. To protect their interests, Canadian diplomats requested, among other things, that the United States submit the case to the International Joint Commission. The United States refused to do so, but it agreed to conduct some studies on invasive species that could spread as a result of the spillway. But for the United States, the fact that the federal government largely lacks jurisdiction over the lake making it more difficult fto intervene than would be the case with other lakes. Despite Devils Lake being relatively small, it has exhausted a massive amount of diplomatic energy between the United States and Canada.

Austen Parrish, dean of Indiana University’s Maurer School of Law, presented next, arguing that one way to solve transboundary water issues is to shy away from a model that encourages local authorities. He stated that small scale attempts to fix transboundary water issues invariably fail, and such challenges require large-scale and complex solutions. Local authorities can be hyper-political, and lose perspective of the end goal. To show how localized solutions are ineffective, Parrish discussed difficulties that the Confederated Tribes of the Colville Reservation faced when a Canadian mining company, Teck, polluted the tribe’s water supply. Teck intentionally discharged more than ten million gallons of slag and effluent into the Columbia River.

The tribe sued Teck under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) more than ten years ago. It is uncertain how CERCLA will apply across an international border. Despite Teck’s admission that it intentionally dumped slag and effluent, the tribe has yet to receive any payments or other remedy. The Confederated Tribes of the Colville Reservation won an award in federal district court last year, but the case is currently under appeal. The appeal will further delay any chance the tribe has at remedy. There are likely two ways that this litigation could conclude: the court could find Teck liable and impose massive fines under American domestic law, or there may be a diplomatic resolution between the two countries before the court reaches a decision. Regardless, what is evident is that old treaties and strategies to solve transboundary issues may no longer work. Without a transboundary agreement over actions such as Teck’s, it is much harder for United States citizens to seek justice. Parrish used this example to show how vital it is to have transboundary agreements that are respected at a high level of international policy. Without such an agreement, citizens are left to fight under domestic laws and uncertain precedents.

Fatima Taha, a graduate student at Oregon State University, concluded the presentation by discussing her research into resolving transboundary water issues. Taha has developed a live-action “serious game,” designed to encourage effective transboundary negotiations. In this game, players participate on teams of three. Each team represents a country and its three players participate as a head of state, an agriculturalist, and an environmentalist. Each country must work with other countries to coordinate the development of food grains, meat, dairy, and a healthy environment. This development is symbolized by each team’s accumulation of “notes,” which can represent water and commodities. Negotiations between teams can quickly fall apart through news of extreme drought or war. Overall, Taha’s game helps participants de-politicize issues and seek an equitable solution that makes sense for all parties involved. Taha believes the game’s simplicity and practical use—as well as the enjoyment its players report—add to the growing understanding that “serious games” can develop critical thinking among participants in ways that other experiences cannot.

Matthew Kilby

 

Image: Sunset at Devil’s Lake in North Dakota. Flickr user Jimmy Emerson, DVM, Creative Commons.


35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

The Public Trust Doctrine: A Modern Debate Over a Classic Doctrine

 

Three speakers came together to discuss their views on the public trust doctrine as it applies to the current state of water law. Jennifer Harder moderated the discussion. She is a professor of law at the University of the Pacific, McGeorge School of Law, in Sacramento, California. The first part of the discussion was led by Buzz Thompson of O’Melveny & Myers, who is also a professor at Stanford Law School. He was followed by J. Craig Smith of Smith Hartvigsen, PLLC, located in Salt Lake City, Utah. Cynthia Koehler, co-founder and executive director of WaterNow Alliance, a non-profit organization based in San Francisco, concluded the discussion.

Thompson introduced the panel topic and provided general background information regarding the public trust doctrine and its application to the area of water rights. He informed the audience that the application of the public trust doctrine to water law sports about fifty years of legal history. Yet, this doctrine remains extremely controversial as it exposes a variety of legal puzzles. Only a handful of state courts have written on the subject; for example, both the California Supreme Court and the Hawaii Supreme Court published landmark opinions regarding the public trust doctrine in water law. Generally, states recognize that water is a public resource, exclusively owned by the state, even if states also recognize a variety of water rights held by private individuals.

Thompson pointed to several concerns regarding the public trust doctrine. Some believe that the doctrine will give courts a license to engage in strong judicial intervention. Others feel that this doctrine is simply a form of broken judicial takings. Yet still, others are worried that this doctrine is anti-majoritarian because the legislature may not be able to override judicial opinions on the applicability of the doctrine. There is an even split amongst courts who have addressed this topic; states such as California have applied the public trust doctrine to their state consumptive water laws, while other states, including Colorado, have explicitly rejected the application of the doctrine to water rights. At this time, it is unclear as to whether applying the public trust doctrine will yield positive or negative consequences.

Smith followed Thompson’s introduction with his views on the public trust doctrine in the context of the prior appropriation system. He does not believe that the public trust doctrine should be applied to water law where the prior appropriation doctrine governs and private property rights are at stake. Smith feels that this public trust movement reflects the general unease the public feels about private property rights over a public resource. For example, in Utah, like in many arid western states, private water rights held by individuals or private companies are key to the value of their property holdings. The properties of many land owners would be essentially worthless if those private water rights are taken away. The value of the land is tied to the water rights that comes with it. Smith believes that the well-established prior appropriation system works well and will continue to work well, even if we are not comfortable with the idea.

A current case in Utah arose from a unique situation created by a clash between the public trust doctrine and prior appropriation. The questions posed were: whether water is a public resource; if the public has a right to access the water, to what extent would that encroach on the rights of private individuals; can a certain amount of limited trespass be allowed through private property to access water sources; and should this sort of access be limited to only navigable waters? Smith concluded that in the future, state legislatures must pick a side because the two doctrines conflict with each other on a fundamental basis. If both doctrines exist together, there will be much confusion and inconsistences in state policies and laws, which will in turn hurt those who has invested an immense amount of resources in water infrastructure and legislation.

Koehler took the opposite view in her discussion of the public trust doctrine in water law. She began by noting that the public trust doctrine is actually quite old, extending back to England and the concept of sovereign ownership – the monarchy owns resources that benefit the citizenry and hold such resources in trust. This idea immigrated to the United States and several U.S. Supreme Court cases in the Nineteenth Century established that each state, as its own sovereign, has the right and responsibility to hold public resources in trust for the benefit of its citizens. Although Koehler agrees with Craig that the public trust doctrine impose limitations on private enterprises, she believes that this is necessary to protect the interest of state citizens. The key question to ask is: to what extent is it acceptable for the public trust doctrine to limit private property rights?

Koehler demonstrated situations where the destruction or damage to natural resources and the environment is so severe and so prevalent that the state has a duty to step in and intervene. States have an obligation to preserve the value of such resources for future generations. Water, like other aspects of nature – the land, the sea, the air, is a different type of property, public property. Such property cannot be parceled out and used in the same way as other more traditional kinds of private property. To withhold access to water would have a significant impact on the general population and society as a whole. Koehler feels that to view water as a resource equivalent to other types of private property is misguided and dangerous. This kind of view, when reflected in policy and law, will only cause harm to state citizens and to the state’s natural environmental, as well as, create irreparable damage to natural resources and alter our nation’s environment permanently.

Tina Xu

Image: A walking path follows along Salt Creek in Death Valley, CA. Flickr user nate2b, Creative Commons.


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

Eugene, Oregon         March 2–5, 2017

Film Presentation of Paya: The Water Story of the Paiute

 

Presented by: Jenna Cavelle, Director; Harry Williams, Bishop Paiute Tribal Member & Activist; Jacklyn Velasquez, Big Pine Paiute Tribal Member & Vermont Law School; and Chris Morrow, Viterbi Graduate School of Engineering.

The landscape in Owens Valley—in arid Inyo County—contains evidence of long-standing irrigation practices predating the American West’s colonial era. These dried up channels and diversions come from the people who traditionally inhabited Owens Valley. Today, the descendants of those people belong to the Bishop Paiute, the Big Pine Paiute, and a number of other tribes. The film Paya: The Water Story of the Paiute explores a series of extensive pre-historic irrigation systems in the Owens Valley and argues that evidence of early beneficial use may help establish a substantial water right for the region’s present Indian tribes. The film frames the exploration by discussing intervening historical injustices that prevented local tribes from conducting irrigation.

To establish a substantial water right, the local tribal members recognized a need to establish evidence proving long-term use. To this end, it is easy to establish that pre-historic irrigation channels actually existed, but it is much more difficult to show the water quantity used. Nevertheless, there is much evidence verifying the extent of prehistoric irrigation channels. First, there is historic evidence proving the the existence of an irrigation system from 1856, when surveyor Alexey W. Von Schmidt marked ancient irrigation channels on maps he prepared. Second, oral traditions suggest that irrigation practices occurred. Harry Williams, a Bishop Paiute tribal member, remembered hearing about the channels when he was a child. Third, various archaeological studies suggest the existence of these channels. Finally, many of these channels are still visible today. Combining data, the film estimates that native people constructed over sixty distinct networks of ditch systems in the Owens Valley.

The more difficult task for Williams and others is to prove the quantity of water that flowed through these irrigation systems. So far, the local community has only been able to gain a rough estimate of the water quantity that could flow through one of the streams. Scaling this estimate up area-wide, local tribes could have access to tens of thousands of acre-feet each year if they successfully applied for a water right. Unfortunately, estimating hydrologic flows could be cost prohibitive.

The indigenous people of Owens Valley irrigated the land until the Owens Valley Indian War, which ended in 1863 and resulted in the removal of the native populations. Even after being allowed to return home, Indians could not purchase land. As a result, the Bishop Paiute and other tribes experienced a “forced, sudden amnesia,” and lost their irrigation practices.

The rapid population growth of Los Angeles exacerbated this sudden amnesia. In 1905, the City of Los Angeles approved the Los Angeles Aqueduct and began purchasing water rights and land in Owens Valley. Since then, the City of Los Angeles has pumped hundreds of thousands of acre-feet per year from Owens Valley. Williams says that the way his elders described the land in Owens Valley is very different from the way it appears now. He links this change to the Los Angeles Aqueduct.

If tribes can establish beneficial use predating the aqueduct, they could prevent the Los Angeles from diverting massive amounts from the Owens Valley. However, Los Angeles has long been militant in its Owens Valley litigation and owns vast quantities of the area’s land. For local Indian tribes to establish a water right, they must identify and prove the existence of evidence that can accurately describe the prehistoric beneficial use of people in the area.

After the film concluded, the film’s director, Jenna Cavelle, along with Williams and two other contributors, hosted a question-and-answer session. Cavelle stated that the film has created a movement within the local community that sees this effort as chance to establish a substantial water right. Unlike many tribes, the Big Pine Paiute and others in the Owens Valley never received a federal “Winters” right to water, so the prospect of establishing a first-in-time, first-in-right beneficial use for the tribe is a first step that has invigorated many locals.

The largest issue facing the tribal communities is the funding needed to accumulate enough evidence. Developing and presenting this portfolio would require archaeologists, biologists, attorneys, hydrologists, engineers, and geologists. The cost alone of estimating water quantity flows would be astronomical. Cavelle hopes that screenings of this film will help raise awareness and encourage viewers to contribute to the tribes’ efforts.

Matthew Kilby

 

Image: A small rainstorm over the Owen’s Valley. Flickr User, JesseLeeRoper, Creative Commons.


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

Eugene, Oregon        March 2–5, 2017

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

 

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

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

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

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

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

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

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

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

Matthew Kilby

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


35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

Agricultural Water Conservation: Is It Really So Simple?

 

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

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

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

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

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

Tina Xu

 

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

 


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.


24th Annual American Bar Association Environmental, Energy, and Natural Resources Law Fall Conference

Denver, Colorado                                October 5-8, 2016

A Glass Half Empty – Flint, Environmental Justice, and America’s Drinking Water Infrastructure Problem

At the 24th Annual American Bar Association Environmental, Energy, and Natural Resources Law Fall Conference in Denver, a panel of three professionals in the field of environmental justice tied themes of environmental justice to the history, issues, and lessons learned from the recent drinking water crisis in Flint, Michigan.

Randy Hayman, from Beveridge & Diamond in Washington, D.C., opened by stating that the Safe Drinking Water Act (“SDWA”) is the most important piece of legislation the United States Congress has ever passed, because “water is life.” The SDWA gave U.S. citizens assurance that their water would not be contaminated by anything that could cause serious health problems. Considering the necessity of water to human survival, Hayman said the SDWA is inherent to environmental justice.

The majority of Hayman’s statements were about the history and execution of the SDWA. Many regulatory checks were put in place by Congress to ensure that everyone is confident their water is safe to drink and use for everyday needs. Other than wells serving fewer than twenty-five people, every public water system is subject to the rules of the SDWA, and failure to meet the standards set forth by the law can result in fines of $25,000 per day. The damage does not just end at the fine, however. Public confidence in officials erodes when a community violates SDWA rules. Therefore, public officials face the dilemma of whether to publicize the existence of a water crisis, because failure to solve the problem swiftly result in the public’s trust quickly diminishing.

The moderator asked Hayman to elaborate on the Lead and Copper Rule, a health standard that minimizes the amount of those contaminants in public pipelines. Lead and copper particles enter the water stream from pipes, pollution, and natural processes. As long as the amount of either remains below a specified “action level,” the water is still considered safe for human consumption. An action level is an amount of contamination that will require additional action from water system administrators, including treatment, public notification, or exposure minimization. Exceeding an action level is not a violation itself—nor is it necessarily a health and safety hazard—but it could indicate the existence of a water-pollution problem. According to Hayman, because education about safe contaminant levels is insufficient, news of a community’s water getting contaminated at all sometimes causes panic. Hayman suggested officials should take greater steps to inform the public about lead and copper, since it is only when those measurements rise to very high levels that they become a potential threat to health.

The second speaker was Quentin Pair, a professor of environmental justice at Howard University School of Law who also works in the environmental justice division at the Department of Justice. According to Pair, environmental justice is the civil rights of the Twenty-First Century. In his discussion, Pair said the themes of the civil rights movement are tied directly to modern environmental justice because the Environmental Protection Agency’s definition of environmental has very similar language to Title VI of the Civil Rights Act – equal treatment is emphasized in both. He mentioned how critical it is to consult the general public first about environmental issues, rather than waiting for elected officials to take notice. He believes grassroots organizing can begin to solve environmental problems much more efficiently and effectively than any other public resource because local community members know which issues are most important to their neighbors than elected officials.

As part of his discussion, Pair shared the story of the beginning of modern environmental justice in Warren County, North Carolina. Beginning in 1973 a large landfill was used to dispose of contaminants without the knowledge or consent of one of the poorest counties in the state, the populations of which were more than seventy percent black at the time. This controversy was addressed in several lawsuits, including United States v. Ward in 1982. This trend has since continued, and three out of every four disposal facilities in the country are located in minority and low-income communities. According to Pair, race is the most significant determinant of the location of these disposal facilities across the country. He said that in order to talk about environmental justice, it is impossible not to consider how much damage environmental racism has caused.

Michelle Wilde Anderson, a law professor at Stanford who focuses on state and local government, was the final speaker on this panel. She brought the discussion full-circle by connecting what the other speakers discussed to the Flint crisis. She described the professionals who initiated the documentation of the contaminated drinking water in Flint, including a pediatrician who investigated the doubling and tripling of lead levels in her patients’ blood. Those professionals did what Pair criticized public officials for not doing: they listened to the community and learned what was wrong.

Wilde Anderson also described how the cause of the crisis was a revenue problem rather than a spending problem. Because of an abundance of deferred spending and loans in the 1970s, Flint did not have the resources to meet local needs. Public infrastructure suffered as a result of the lack of resources, and old systems that were not properly maintained grew more vulnerable to leaking contaminants over time. Ultimately, she said, the decision to rebuild these outdated infrastructure systems is left to the taxpayers, and the longer those systems go without repair the more likely health hazards are to occur in the near future. Wilde Anderson views Flint as a warning or a wake-up call to the nation because old pipeline systems will fail without better and more regular maintenance.

The panel then accepted questions from the audience. One audience member asked how federal agencies, including the Environmental Protection Agency (“EPA”), could do a better job dealing with environmental injustice. Pair suggested those problems could not be solved without providing more funding for environmental justice, which Congress has denied. He further noted that many communities do not trust the federal government to solve all of their problems, so the EPA currently has neither the political nor the financial support needed to tackle those issues. Another audience member asked how local communities can recognize access to safe drinking water as a basic human right. Wilde Anderson answered by saying that leaders do not try hard enough to make water available to communities that cannot afford it, so communities fall short of recognizing access to safe drinking water as an essential human right. The costs associated with delivering water to these communities are high, and not many cities have completed these critical delivery infrastructure projects.

Travis Parker

Image: “There’s Something in the Water.”  Property of Live Once Live Wild, Creative Commons.