Rand Props., LLC v. Filippini, No. 66933, 2016 WL 1619306 (Nev. Apr. 21, 2016) (holding that: (i) a person who has acquired a right to a quantity of water from a stream may take it at any point of the stream and may change the character of use as long as it does not affect the rights of others; (ii) stock water rights on public lands pass by chain of title in Nevada; and (iii) a private party may convey a stock water appropriation certificate).

On June 7, 2011, Daniel and Eddyann Filippini (“Filippini”) filed a complaint to adjudicate stock and irrigation water rights on Trout Creek against Julian Tomera Ranches, Inc. (“Tomera”), and Rand Properties, LLC. (“Rand”). The Sixth Judicial District Court, Lander County adjudicated the case on April 8, 2013, and established priority dates for each party’s stock and irrigation water rights. Rand appealed to the Supreme Court of Nevada on grounds that the district court erred in its finding of priority dates, stock water rights title passage, and conveyance of a stock appropriation certificate.

First, Rand asserted that its priority date began in 1869, and that the district court erred by finding that Rand’s priority date began in 1901. The district court found that a change in the place of use on Trout Creek by Rand’s predecessors in interest created a new appropriation instead of a continuation of the chain of title because it occurred before statutory enactment of a law allowing for one to change the place of use. By setting a later priority date, the district court did not rule on whether Rand had proper title to its claim dating to 1869.

The Court overturned the district court, finding it relied on an erroneous conclusion of law. The Court looked to Nevada common law and held that a person who has acquired a right to a quantity of water from a stream may take it at any point of the stream, and he may change the character of its use at will as long as it does not affect the rights of others. The Court then vacated and remanded the issue for further proceedings as to Rand’s connection to the chain of title.

Second, Rand argued that the district court did not sufficiently explain its decree that Filippini’s priority date began in 1871 through a connection by title to a predecessor in interest named James Hughes and lacked the evidentiary support of a conveyance. The petitioner claimed that Filippini did not offer evidence that established a connection of title between 1891 and 1897. The Court concluded the district court’s ruling relied upon was insufficient. Under the district court’s ruling, it did not need to rule on the connection of title because it held that Rand’s priority date did not predate 1897. Accordingly, the Court vacated and remanded for further proceedings on the issue.

The Court then turned to the district court’s finding that a predecessor in interest named J.R. Bradley established the domestic stock water priority date held by Filippini in 1862 because Bradley’s outfit drank and diverted water from Trout Creek. The district court found that federal grazing permits acted as a proxy for establishing stock water rights and that proof of a chain of title is unnecessary for stock water rights on public lands owned by the United States and that each party held federal grazing permits. The Court disagreed, finding that stock water rights on public domains pass by chain of title in Nevada and that federal grazing rights and water rights are separate issues. Subsequently, the Court vacated and remanded to the district court to find on the issue of the party’s current rights to the disputed stock water that had passed by a chain of title.

Finally, the Court overturned the district court’s decision to prohibit the conveyance of a grazing certificate to Rand. Leroy Horn originally secured the certificate, certificate 12160, by building the Trout Creek pipeline to water his 600 cattle on a federal grazing allotment in 1979. In 1989, Horn agreed to sell his grazing preferences to Tomera and to sell Badger Ranch to Filippini in a three-way contract. The contract included the federal grazing privileges and all water rights, including stockwatering rights used in connection with the land. However, when Rand purchased Trout Creek Ranch from Broughton in 2009, the deed purported to convey certificate 12160 to it. On appeal, Rand argued that, because a Nevada statute requires conveyance of water rights by deed, Tomera cannot be the proper owner, and Rand was a bona fide purchaser nonetheless.

The district court relied on a Nevada statute prohibiting conveyance of stock water appropriation certificates to conclude that Rand could not own certificate 12160. The district court found that Rand could not put the water to beneficial use under the statute since it did not possess a grazing preference for 600 cattle at the place of use. The Court concluded that the district court erred in determining that the statute prohibited the conveyance to Rand; although the statute prevents issuance of a certificate from the State Engineer, it does not prohibit conveyance of certificates by a private party. Nevertheless, the Court found that Tomera could be the proper owner, since the conveyance occurred prior to the enactment of the statute requiring a person to obtain title to a certificate by deed. The Court then vacated and remanded to the district court to properly review Rand’s bona fide purchaser defense.

Accordingly, the Court reversed the judgment of the district court and remanded for further proceedings.

 

Dalton Kelley

A stock watering tank in Nevada. Flickr user Thure Johnson, Creative Commons.


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

Denver, Colorado                         April 7, 2017

The Clean Water Act and The Scope of Federal Power

(Scroll down for full video of panel)

For this panel discussion, David Ivester, Melinda Kassen, Peter Nichols, and Paul Kibel each spoke about a different aspect of the Clean Water Act (“CWA”) and its various intersections with federal power.

First, David Ivester, partner at the land use, environmental, and water law firm Briscoe Ivester & Bazel, detailed the background of the CWA and the two different types of jurisdiction contained within it. Simply put, the CWA regulates discharges of pollutants from point sources into navigable waters. Under the relevant definitions, pollutants include dredge or fill material and navigable waters are simply “waters of the United States.” The CWA governs two types of jurisdictions: geographic and activity. Geographic jurisdiction allows the CWA to protect all waters with a “significant nexus” to traditionally navigable waters. This theory derived from three Supreme Court opinions interpreting the CWA. First, in United States v. Riverside Bayview Homes, the Court upheld the Army Corps of Engineer’s claim that the CWA’s geographic reach includes wetlands adjacent to navigable waters. Then, in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (“SWANCC”), the Court found that Congress did not intend the CWA to reach isolated, non-navigable, intrastate waters. Finally, the Court in Rapanos v. United States issued a plurality opinion holding that the CWA extends only to relatively permanent, standing, or continuously flowing bodies of water and those wetlands attached to such bodies of water. Interestingly enough, Kennedy’s concurring opinion in SWANCC used a significant nexus as a test for determining CWA jurisdiction.

Mr. Ivester then discussed activity jurisdiction of the CWA, specifically in reference to plowing. An Army Corps of Engineers regulation excludes plowing as a discharge. Mr. Ivester then pointed out that, while the regulation defines and excludes plowing, it does not include redistribution of soil that changes any water to dry land. Finally, Mr. Ivester showed a picture of a freshly-tilled land asked the audience to consider whether plowing had occurred.

Next, Melinda Kassen, Interim Director of the Theodore Rooosevelt Conservation Partnership’s Center for Water Resources, explained the CWA’s statutory and regulatory landscape, specifically focusing on the “waters of the United States” rule. First, Ms. Kassen discussed various health and safety issues with rivers prior to the CWA. For instance, rivers were burning and life within them was dying. Even following the Water Quality Act of 1965, these same issues persisted. As a result, Congress passed the CWA in 1972. From around the 1970’s until 2006, the CWA utilized a definition of the “waters of the United States” that included all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, and streams.

Moreover, a series of opinions – elaborated in depth by Mr. Ivester – examined this definition, and Ms. Kassen pointed out interesting parts of two of the opinions. For instance, in SWANCC, the court held that waters need not literally be navigable, yet it also said that all words must have meaning. Moreover, in Rapanos, the Court required a significant nexus to navigable waters alone or in combination with similarly situated navigable waters. In this opinion, the Chief Justice himself mentioned that the best way to deal with the continuous stream of navigable water issues was to adopt rules. Finally, in 2015, the agencies adopted a rule defining the waters of the United States using connectivity and bright line theories. For connectivity, the rule required some form of nexus to a river, stream or body of water. The rule also introduced what Ms. Kassen referred to as “bright lines.” That is, the rule dictates that waters within a given distance of navigable waters are automatically within the definition. Many states objected to this rule and filed suit. The Sixth Circuit consolidated all of the cases and as recently as January 20, 2017, the parties filed the opening briefs in the case. Moreover, President Trump issued an Executive Order in February 2017 regarding the waters of the United States rule.

Finally, Ms. Kassen closed by asking the audience to consider who will implement the next version of the CWA. Originally based on cooperative federalism, the CWA did not maintain that mantra for long, especially in the expensive permitting process. For example, only two states currently issue their own 404 permits. Simply put, states are forced to do more in carrying out the CWA, but those states lack sufficient funding to provide the necessary services. As a result, CWA enforcement drops and a downward spiral may continue.

Peter Nichols, Board Member of University of Colorado Law School’s Getches-Wilkinson Center for Natural Resources, spoke third, and he discussed the intersection of water quality and water quantity. Specifically, he discussed physical water transfers and question of whether these transfers that do not add anything else to the destination body require permitting under Section 402 of the CWA. First, Mr. Nichols noted that, for most transfers, the destination body sees no impact. However, other transfers can exceed or contribute to exceeding current water standards by introducing more suspended solids such as nutrients and metals. Moreover, the National Pollutant Discharge Elimination System (“NPDES”) permitting include discharge limits that concern primarily with contamination. Thus, water transfers must meet NPDES compliance standards and often involve a water treatment plant.

At this junction, Mr. Nichols pointed out that compliance with NPDES standards for water transfers is difficult for three reasons. First, permitting, treating, and transferring are expensive practices, making the process almost economically infeasible. Second, the transfers must operate among a range of differences in water volume and water quality, presenting a technical challenge to transfers. Finally, transfer sites are limited and environmentally difficult to operate. Faced with these challenges, a transferer really only has two options. On one hand, it could cease waters when transfers do not meet the standards. This presents a problem, as stopping during a critical time may result in a chronic lack of water for the season. On the other hand, the transferor may continue transferring water and take the fines. Regardless, high NPDES standards lead to a significant reduction in water transfers and net loss of water supplies.

Mr. Nichols noted that this issue has occupied water transfers from the 1970’s through today. For example, the EPA’s water transfers rule in 2008 exempted certain water transfers from NPDES permitting requirements. Parties challenged the rule, and the Eleventh Circuit consolidated all of the cases, only to dismiss them for lack of jurisdiction. The claim reappeared in the Southern District of New York, which vacated the order. However, varying rulings still persist. Even this year, the Second Circuit held that water transfers do not require NPDES permits. Finally, Mr. Nichols laid out the bottom line of his presentation: that Western residents rely on water transfers daily. In many cases, these transfers are economically, technically, and environmentally impossible to meet. The critical issue here arises from concerns about traditional federal deference to the state water law.

The fourth and final panelist, Paul Kibel, professor of environmental, natural resource, and water law at Golden Gate University School of Law, detailed how the state of California is protecting instream flows. Mr. Kibel. First, he explained that fisheries are facing decline in California. Traditionally, the state has a robust commercial fishery industry with salmon stocks playing an important role in the economy. Moreover, federal laws and agency work has usually kept water in streams for fisheries. However, these fisheries face a future with uncertainty concerning continued support.

After laying out the problem, Mr. Kibel explained three major impacts of reduced instream flows on fisheries. First, the reduction in instream flow results in seawater intrusion into rivers, raising their salinity. Moreover, as the freshwater supply meeting the oceans decreases, the intrusion increases, pushing salt water further and further up the deltas. Increased saline levels in the water can even affect the fish. For instance, the Delta smelt lives well in brackish waters, but it dies in saline waters. Second, reduced instream flow results in increased water temperature. Without much water coming downstream, the rivers warm and, in some cases, decimate fish populations. Third, reduced instream flows result in slack water conditions. Then, these slowly flowing waters grow algae and parasites, which can harm the fish.

Next, Mr. Kibel gave examples of federal laws playing a big role in keeping instream water flows steady then explained how California has safeguards if the water rushes out. First and foremost, the Clean Water Act compels the EPA to review state water quality standards. Moreover, states also have the power to propose beneficial uses to the EPA for approval. Pursuant to this authority, the California State Water Board is updating its water plan to establish base instream flows for tributaries of the San Joaquin River. Next, Section 7 of the Endangered Species Act requires drafting biological opinions during consultation. Additionally, courts have upheld these biological opinions supporting instream flows for salinity and temperature concerns. Third, the Winters Doctrine allows tribes to hold federal water rights to fulfill the purposes for which reservations are created. This authority includes rights to instream water for supporting salmon stocks. Next, the National Environmental Policy Act compels creating Environmental Impact Statements, and Kibel pointed to the California Water Fix as a situation where an EIS protected water and salmon. Finally, Section 10 of the Federal Power Act requires non-federal dam permits to protect fish spawning.

What happens, Mr. Kibel posited to the audience, when these federal powers no longer support instream flows in California? Luckily, California has its own protections in place. For instance, California’s state Clean Water Act requires appropriation similar to the federal statute. Similar to the court-supported federal ESA, California courts have also held that state agencies have the authority to protect instream water for public services. As a response to the Winters Doctrine, both the California Constitution and its Water Code operate under a reasonable use law. Under this scheme, unreasonable methods of diversion are unlawful, which protects instream flows from improper diversion. Where biological opinions may not be available, the California Fish and Game Code requires dam operators to release enough water to maintain downstream fishers. Even better, this provision applies to federal dams within the state. Finally, Section 401 of the CWA requires the federal government to obtain water quality certification from the states for certain activities. While the state is considering the effect of a project on its waters, it may impose instream requirements on those water quality certifications to protect them.

 

Connor Pace

 

 


Lingenfelter v. Lower Elkhorn Natural Res. Dist., 881 N.W.2d 892 (Neb. 2016) (holding that (i) a farmer’s uncontroverted claim that he had received approval to irrigate his land did not constitute approval by a Natural Resource District to irrigate those lands; (ii) a Natural Resources District’s cease-and-desist order against the farmer was proper because the district created a rule that prohibited farmers from irrigating undesignated land without obtaining approval; and (iii) the district’s rules of land designation were not arbitrary and capricious and did not violate the farmer’s due process or equal protection rights).

The Nebraska Ground Water Management and Protection Act (“Act”) created twelve Natural Resources Districts (“NRDs”) within the state. NRDs have authority to regulate ground water. The NRDs’ legislative purpose is to develop, manage, utilize, and conserve groundwater and surface-water. NRDs set limits on total ground water usage, require practices that promote the efficiency of ground water usage, and “limit or prevent the expansion of irrigated acres.” This authority allows NRDs to protect groundwater quantity and quality. State legislators deemed this protection as “essential to the general welfare.” Since the Act’s adoption in 1975, NRDs have gained increasingly more authority to regulate Nebraska’s groundwater. By 1996, the NRDs’ authority was extended to regulate surface water that was hydrologically connected to groundwater.

The Lower Elkhorn Natural Resources District (“District”) is the NRD that regulates groundwater in northeastern Nebraska. The District has the authority to require reports and issue cease-and-desist orders in order to “administer and enforce” the Act and its goals. The District designates two types of lands that may be irrigated. First, it designates “Historically Irrigated Acres” as lands that were irrigated for at least one year between 1999 and 2008 or that are enrolled in a conservation plan. The second designation, “New Groundwater Irrigated Acres” covers other irrigated lands. The District sets rules that govern other irrigated lands. District Rules 13 and 15, promulgated in 2009, prohibited irrigators from receiving a certification for New Groundwater Irrigated Acres without a variance. Rule 14 outlines the certification process and requires either approval by the District’s board of directors or a “look-back” acknowledgement by the District that the land was irrigated between 1999 and 2008.

Lingenfelter, a farmer, purchased Rehfeld farm, located within the District, to use its well to irrigate the nearby Dunaway Farm. Prior to purchasing the farm, Lingenfelter met with a District employee. At this meeting, Lingenfelter and the employee calculated the amount of water available at the Rehfeld Farm. After purchasing the farm, Lingenfelter used the Rehfeld Farm well to irrigate the Dunaway Farm until 2013, when he received a cease-and-desist letter from the District. The letter explained that his irrigated land, which hydrologically connected ground water from the Rehfeld well to surface water on his other land, would likely be prohibited irrigation of New Groundwater Irrigated Acres under Rules 13 and 15.

Lingenfelter requested a hearing with the District over the cease-and-desist letter and sought the District’s certification of his water use. Before the hearing, he received a preliminary decision that the District would not approve his water use and that to continue irrigating, Lingenfelter had to obtain a variance. At the hearing, Lingenfelter could not show that he irrigated that land between 1999 and 2008, nor could he show that the land was certified. The District upheld the cease-and-desist demand, and Lingenfelter appealed to a district court.

Lingenfelter appealed under two causes of action. First, he requested judicial review of the District’s cease-and-desist order. Second, Lingenfelter requested a declaratory judgment that the District’s Rule 14, as well as its rule that defined Historically Irrigated Acres, violated his rights under the Nebraska Constitution and exceeded statutory authority.

Under the APA, the district court reviewed the District’s decision de novo. Under the first cause of action, Lingenfelter argued that the cease-and-desist order was not supported by the facts Lingenfelter presented. Lingenfelter first argued that he received approval to irrigate the Dunaway Farm in the meeting with a District employee and thus the district court should estop the District’s cease-and-desist order. He also argued that the District misapplied its own rules in determining the Dunaway Farm was not “irrigated acres.” Finally, he argued that Rule 14’s look-back provision was arbitrary and capricious.

The district court rejected all of these arguments. First, it stated that Lingenfelter could not prove that the District employee approved his project beyond his subjective assumption that irrigating the Dunaway Farm was “not an issue.” Second, the district court determined that the District did not misapply its own rules when it abstained from deciding whether Lingenfelter’s land constituted irrigated acres. The district court found that this analysis was not relevant because the District issued a cease-and-desist order because Lingenfelter had failed to ask for a variance and not because he was irrigating an area without a Historic Irrigated Acres designation. Third, the district court rejected Lingenfelter’s Rule 14 argument as convoluted and misplaced and because the record was insufficient for review of an administrative rule.

Under Lingenfelter’s second cause of action, he requested that the district court issue a declaratory judgment that Rule 14 violated the Nebraska Constitution’s equal protection and due process clauses. He claimed that because the rule was arbitrary and capricious, it violated his rights to due process. The district court ruled that the District’s rules had a purpose of responding to recent drought conditions, and therefore they could not be arbitrary.

Lingenfelter appealed all of the district court’s decisions to the Nebraska Supreme Court, arguing the district court failed to estop the District’s cease-and-desist order, erroneously found his land to not be irrigated acres, and misunderstood his arbitrary and capricious argument, among other procedural complaints.

Lingenfelter argued to the Court that under the APA, the district court should have viewed the evidence in favor of the plaintiff and estopped the District’s cease-and-desist order.   To this point, Lingenfelter stated that if the district court had viewed the evidence in his favor then it would have understood his meeting with a District staff member as a confirmation that he could irrigate the Dunaway Farm with water from the Rehfeld Farm.

The Court disagreed and stated that because this was an administrative appeal, rather than a complaint to a district court, that the APA did not require the district court to view evidence in favor of the plaintiff. The Court also found that because Lingenfelter’s belief that he could irrigate the Dunaway Farm using water from Rehfeld Farm was contradicted, the district court properly abstained from finding in his favor under Nebraska case law.

The Court also upheld the District’s decision not to apply one of the two irrigation classifications, Historically Irrigated Acres and New Groundwater Irrigated Acres, to Lingenfelter’s land. The Court concluded that because the District chose to not apply one of the designations to the land, it was likely forcing irrigators to seek certification so that it could ensure the water would be used properly. Furthermore, Lingenfelter never offered any evidence that his land had been irrigated between 1999 and 2008. Therefore, the District’s decision was consistent with rules that prohibited New Groundwater Irrigated Acres and prevented any land that was not certified or Historically Irrigated from being irrigated.

The Court also addressed Lingenfelter’s request under the APA for a declaratory judgment that Rule 14 was arbitrary and capricious, and therefore unconstitutional. The Court first noted that causes of action under the APA’s declaratory judgment provision only apply to agencies. The APA’s declaratory judgment provision was inapplicable here because NRDs were not agencies, but rather statutorily created as political subdivisions. Therefore, Lingenfelter could not use the APA to request a declaratory judgment against the District.

Instead of opining on constitutional issues through Lingenfelter’s declaratory judgment, the Court reviewed the district court’s summary judgment on constitutional issues in favor of the District. The Court first reviewed Lingenfelter’s argument that Rule 14 violated his substantive due process rights.

Under the Nebraska Constitution, substantive due process inquiries require a determination of “whether a right in which the plaintiff has a legitimate property interest” was unconstitutionally taken from the plaintiff. A property interest is unconstitutionally taken if the government acted in a way that has no substantial relation to the general welfare. Lingenfelter argued that using water to irrigate the Dunaway Farm was a legitimate property interest and that Rule 14 arbitrarily and capriciously took that interest away. The Court rejected this argument, finding that Rule 14 was reasonably related to ensuring adequate groundwater supplies in Nebraska.

Lingenfelter’s next constitutional argument stated that violated his right to equal protection because it “divides landowners ‘into winners and losers based upon an arbitrary calendar date.’” Nebraska’s equal protection provision is identical to the United States Constitution’s provision. The Court approached this claim under a rational basis test because no suspect class was involved. The Court found Rule 14 was rational because it was driven by a policy that established a baseline of acres historically irrigated in order to conserve groundwater. Accordingly, the Court rejected both of Lingenfelter’s constitutional arguments.

Finally, the Court rejected Lingenfelter’s last three arguments that the District’s authority to make rules was “fundamentally unfair,” that there was insufficient evidence to determine whether Rule 14 was rationally related to the availability of groundwater, and that the district court misunderstood his arguments against the District’s adoption of Rule 14. The Court rejected the first argument because NRDs are statutorily authorized to make such rules. It rejected the second argument because it Act specifically refers to preventing droughts and because the Court properly reviewed the question de novo. The Court rejected the third argument because Lingenfelter did not explain how this error prejudiced the result.

Accordingly, the Court affirmed the district court’s decision and allowed the District to issue its cease-and-desist order without resistance.

Travis Parker

Image: A field in Nebraska. Flickr user Richard Hurd, Creative Commons.


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.


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

Separation of Powers: A Comparison of Administrative, Legislative, and Judicial Water Regimes

(Full video of the panel below)

This panel brought in three experts to discuss the benefits and drawbacks of water law regimes that are administrative, legislative or judicial in nature. Sturm College of Law Professor Tom Romero moderated the panel.

David Barfield, the Kansas Chief Engineer, spoke first and discussed the administrative regime. He explained the background of Kansas water law and the historical development of its administrative regime. The population of Kansas mostly resides in the wetter southeast, while most irrigation occurs in the west. This, combined with occasionally unavailable surface water, has led western irrigators to rely upon the groundwater of the Ogallala-High Plains aquifers. These aquifers do not interact with the surface stream and receive essentially no recharge.

To deal with these issues, Kansas has used several different water regimes. Before 1945, Barfield explained that Kansas used a judicial regime with few water laws. The state instead relied on the common law of riparian rights. The courts also interjected some elements of prior appropriation, creating a confusing mix of doctrines. In 1944, the Kansas Supreme Court decided this system no longer worked. The legislature responded, passing the 1945 Kansas Water Appropriation Act. Barfield said this legislative regime lasted from 1945 to about 1978. During this period, the legislature entered interstate compacts, partnered with the federal government to improve water storage, created an office dedicated to water planning, and much more. In 1978, the legislature made major amendments to its water law, shifting Kansas into an administrative regime. This put the chief engineer in charge of administering the state’s water system. The chief engineer’s duties include managing permitting, all prior vested rights, all prior appropriation rights, any changes of water rights, and any other issues that may come up. While this system effectively manages the state’s water, it has not fully addressed groundwater overdevelopment.

To deal with the overdevelopment problem, the Kansas legislature passed the Groundwater Management District Act, which created five groundwater management districts. In each district, the locals adopt management programs for groundwater use, subject to chief engineer approval. However, Barfield said, these plans have at best slowed down aquifer depletion. He said solving this problem requires solving hundreds of smaller problems. One of the problems he identified is the worry that conserving water will result in losing water rights. To address this, Barfield has eliminated “use it or lose it” within closed management districts. The irrigators’ water rights will no longer lose their water right by non-use. Barfield said since this elimination irrigator have reduced their use of the aquifers. While the issues persist, Barfield explained that Kansas’ administrative regime has been working towards solutions.

Rich Gordon, a former member of the California State Assembly spoke next to discuss the legislative regime. He discussed California’s blend of prior appropriation and riparianism. California’s prior appropriation roots date back to the 1849 Gold Rush. The miner’s used first-in-time, first-in-right to determine water rights. In 1850, California adopted riparian rights in its constitution, but by 1851 California recognized prior appropriative rights as equals with riparian rights. In 1914, California established a permit system for its appropriative rights. This led to a system with three types of rights: pre-1914 appropriative, post-1914 appropriative, and riparian. On their own, riparian rights are difficult to quantify without stream-wide adjudication. But only a few streams have received these. Groundwater poses similar issues because its only regulations have been court imposed. In addition, the majority of California’s water is in the north, while most of its need for water is in the south. With this variety of rights, difficulty of quantification, limited control of groundwater, and geographic disparity, California’s water rights system has become difficult to navigate.

With these difficulties as a baseline, Gordon explained that California’s legislature only gets involved to respond to crises or to headlines. California’s recent drought provided both. Gordon noted the significance of the legislature passing the Sustainable Groundwater Management Act (SGMA). SGMA aimed to address the subsidence issue resulting from groundwater over-pumping. Originally, the act would have fully regulated groundwater basins. However, because it resulted from compromise (as legislation tends to do), SGMA instead requires local governments to establish groundwater sustainability agencies to manage wells. Though later questioned about the actual adoption of these agencies, Gordon said he believes that people will prefer local control over a state imposed system.

Gordon also discussed the major issue resulting from California’s premise that most of the state’s water can be stored in snowpack. The state does not have the capacity to store water outside snow pack. Combine this with California’s penchant for wet or dry years (rather than average years), and the state cannot capture the benefit of the wet years to make up for the dry years because of its lack of storage. One of the solutions the legislature has put forth, has been allowing public entities to obtain water rights for captured storm water. Gordon concluded by describing the difficulty of working in the legislative role. Because legislation requires compromise, it is difficult to fully solve real problems.

Finally, Greg Hobbs, a retired Colorado Supreme Court Justice, spoke to discuss the judicial regime. He began by detailing the evolution of Colorado’s water regime. Congress carved Colorado out to cover the head waters of five great rivers—the Platte, the Arkansas, the Colorado, the Republican, and the Rio Grande. After Colorado’s gold rush in 1859, agriculture became a huge industry, because it was “rumored that the miners liked to eat.” Colorado needed the prior appropriation system because it allowed moving water from rivers to farms. An early draft of the Colorado Constitution declared water to be the property of the state, left to the legislature to distribute, but the influence of farmers led to a different final wording. Instead the constitution embraces prior appropriation by declaring the water of the natural stream to be the property of the public, subject to appropriation. The early Colorado Supreme Court case, Coffin v. Left Hand Ditch, firmly rejected the existence of any riparian water rights.

The Colorado legislature later gave the district courts the responsibility to decree water rights. According to Hobbs, the legislature did not trust itself or an administrative apparatus to hand out water rights. He said the legislature did not want to require the people ask the government to use water. By putting the decision into the courts, the legislature instead trusted the people with their own water. In 1881, the legislature created the State Engineer to enforce those decrees and administer the system of water rights.

Unfortunately, these judges did not have a full view of the streams. The 1969 Act addressed this by creating seven water divisions, each based upon a major river basin.
Each with a water judge, an alternate water judge, and a water referee. The referee works with the parties to investigate the water rights and attempt to obtain a consent decree. The act also explicitly recognized tributary groundwater within the priority system, because new wells had previously forced 1860s water rights to be curtailed.

When questioned about the cost of the court system limiting access, Hobbs noted that it still provides the best protections. In 1969, the Colorado legislature considered several options, including administrative and political regimes. These were all rejected in favor of the water court system and the water referee. This system provides extensive protection for everyone’s water rights and, Hobbs asserted, without these protections Colorado would not have such an extensive water market.

Hobbs explained that by splitting the water regime into a system of checks and balances—water rights decreed by the court, administered by the executive branch, and problems solved by the legislature—Colorado avoids the pressures that could be applied on any one branch to not enforce the doctrines of prior appropriation in some circumstances. Hobbs expressed worry about the pressure faced by administrative agencies that both hand out water permits and enforce those permits.

With each panelist having discussed their regimes, Romero moved the panel into question and answer. He asked the panelists how their regimes could benefit from a change or borrow from the other regimes to improve or address the challenges posed by social, political, and environmental issues. Gordon said that, while Californians never want to admit they can learn from others, their system is convoluted and would be better off with a more coordinated system that could better address groundwater. Barfield said that Kansas has already borrowed extensively from other states to create their system. He said, contrary to Hobbs’ worries about an administrative regime, that chief engineers can certainly do it all. He does not foresee further changes to Kansas’ system. Hobbs noted that the downstream states keep Colorado honest. Through compacts, Colorado has been forced to consider other states, and better administer its own waters. Similarly, Hobbs explained that other interests, including reserved water rights, and public lands continue to impact considerations of water rights within Colorado. The panelists then fielded questions from the audience until they ran out of time.

Each panelist discussed how the unique history of their state molded the regime it now uses. It is the unique challenges faced by each state that has created differing water systems that, mostly, work to create efficient use and administration of water.

 

Rioux Jordan


Granite Cnty. Bd. Of Comm’rs v. McDonald, 383 P. 3d 740 (Mont. 2016) (holding the Water Court did not err in its interpretation of a 1906 decree stating a reservoir owner must release not less than 1200 miner’s inches of water for senior downstream appropriators during irrigation season, while also enjoining downstream users from demanding more than the natural flow of the creek above the dam in times of shortage).

This case came before the Supreme Court of Montana as an appeal from a decision of the Water Court regarding the decree from a 1906 case, the interpretation of which clarified disputed water rights between Granite County (“the County”) and McDonald, a private party.

The rights under dispute in this case arose from the terms of the 1906 Decree in Montana Water, Electric and Mining Co. v. Schuh, decided by the United States District Court for the District of Montana. That court granted Montana Water, Electric and Mining Company (“the Company”), the predecessor to Granite County, water rights associated with storage of Flint Creek water in the Georgetown Lake reservoir for the purposes of generating hydro-electric power. McDonald, who is a successor to one of the defendants in that case, objected to the County’s water right claims, two of which arise out of the Schuh Decree.

The root of the controversy in Schuh is the Decree’s seemingly conflicting language. The Decree states that during irrigation season, the Company must cause to flow into the channel of Flint Creek “not less than 1200 miner’s inches” of water below its electric plant, enjoining the Company from diverting water from the creek decreed to downstream users. At the same time, the Decree recognized downstream user’s rights were limited to the natural inflow of the creek. As a result, the Company was prohibited from releasing any amount exceeding that of the “average natural flow” which, during the irrigation season, does not “exceed 1200 miner’s inches” of water.

For purposes of this case the Water Court defined “natural inflow” as that amount of water that would pass through the creek without interference from the dam and defined “storage water” as water from the natural flow of the creek that was impounded for use during times of low natural flow.

Applying the analysis in Schuh, the court had to determine whether the Decree intended that the reservoir release 1200 miner’s inches of storage water throughout the irrigation season, or whether Granite County was only required to release to downstream users that amount equivalent to the natural inflow of the creek above the dam. McDonald argued that the wording in Schuh required the County to maintain a constant flow of not less than 1200 miner’s inches of water for senior downstream appropriators to use at all times during irrigation season regardless of the natural flow of the creek into the reservoir. The County contended it was only required to release the natural inflow of Flint Creek, and not to release storage water from the reservoir when the natural inflow from the creek fell below 1200 miner’s inches.

The Water Court looked to other decisions of the Montana Supreme Court, explaining that limiting downstream users to the natural conditions of a stream at the time of appropriation and not considering storage water as part of the natural flow of a creek was consistent with established Montana Law. The Water Court further explained that Montana case law has recognized that downstream appropriators may not demand release of storage water exceeding the natural inflow of the creek. Though the Schuh Decree did not state this explicitly, the language of the Decree implicitly recognizes this principle. The Schuh court’s decision was consistent with the law as it applies to storage rights, which recognizes natural flow may only be impounded for storage purposes when there is enough water to satisfy rights of senior downstream appropriators. However, a reservoir is not required to release lawfully impounded storage water to downstream appropriators in times of low natural flow.

In interpreting seemingly conflicting statements in the Schuh Decree, the Water Court determined the Schuh court did not intend for downstream users to receive a benefit that the law did not provide; in this case, the mandatory release of storage water is the unintended benefit. Instead, the Schuh court’s instruction that the Company release 1200 miner’s inches “at all times” was designed to ensure that the water that was used in the hydroelectric plant was returned to the creek and not diverted elsewhere. It was not meant to be interpreted that the Company release 1200 miner’s inches at all times during irrigation season regardless of natural flow levels of Flint Creek. The Water Court held this was consistent with the County’s contention that it was not required to release storage water for downstream appropriators to use during times of shortage.

The Supreme Court affirmed the Water Court’s decision, concluding that the Schuh Court did not intend for downstream appropriators to have a right to water stored behind an upstream dam as long as the dam operator released that amount of water which would naturally flow through the stream without the interference of the dam.

The final issue the Water Court contemplated was McDonald’s assertion that principles of claim preclusion estopped the County from contending that it was not required to release 1200 miner’s inches of water at all times during irrigation season. The Water Court dismissed a res judicata argument on grounds that both parties agreed the point under dispute was the interpretation of rights the Schuh Decree already recognized, and interpreting a decree is not the same as re-litigating issues of fact already decided in it. The Water Court next considered McDonald’s claim of judicial estoppel. The court dismissed the claim, finding her argument failed because she showed no evidence the County intended to commit fraud or abuse the judicial process, thus failing to demonstrate all the elements of judicial estoppel.

The Supreme Court affirmed the Water Court’s dismissal of McDonald’s estoppel argument, holding the Water Court properly applied the principles of claim preclusion upon which McDonald relied.

In a specially concurring opinion, Justice McKinnon agreed with the opinion of the court that downstream appropriators have no right to water stored behind an upstream dam as long as the dam operator releases that amount of water which would naturally flow through the stream without the interference of the dam. She concurred specially to opine that the Schuh Decree established a quantity of natural flow above the dam only, and this did not enjoin senior downstream appropriators from using in excess of 1200 miner’s inches when the natural inflow of the Flint Creek exceeded 1200 miner’s inches. Similarly, the Decree did not require the Company to draw from its reservoir to supplement inflow rates when they dropped below 1200 miner’s inches.

Megan McCulloch

Image: Flint Creek in Montana. Flickr user Tim Gage, Creative Commons.


In Water is for Fighting Over, John Fleck[1] takes a positive outlook on the future of the Colorado River, despite its decreasing quality and flow. As a recurring theme, Fleck sets his sights on debunking the titular assertion and a variety of other Western water myths that propagate scarcity, conflict, and disaster. He highlights different instances of collaboration, conservation, and collective water-share efforts by communities utilizing the river that put these myths to bed. Fleck spends the pages convincing readers that fighting over scarcity of water resources never eradicates issues, but utilizing less water collectively could help save the flow of the Colorado River for years to come.

Chapter one, “Rejoining the Sea,” describes how water distribution should be handled in the Colorado River Basin. Fleck makes observations about different areas of the U.S. drying up through drought or over-allocation of water resources and the ways in which cities make do with less water in these circumstances. As a solution to this issue, he points to the role “the network” can play in resolving difficult water disputes. Fleck believes this informal group of experts—engineers, lawyers, environmentalists, and water managers who all deal with the river and its allocations, conservation, and management on a daily basis—is essential to better management of the Colorado River. This sort of collaboration is what Fleck believes will alleviate the multitude of allocation issues facing the Colorado River Basin year after year.

Chapter two, “Water Squandered on a Cow,” outlines water apportionment disputes and wasteful irrigation practices in Colorado, specifically highlighting improved farming routines associated with the alfalfa crop. Fleck begins the chapter by explaining where the Colorado River’s water actually comes from: snowmelt. The issue with the Colorado River is that most of the time there is not enough snowmelt water to fulfill every entity’s legal entitlements. When there is not enough water, the Colorado River Compact first fulfills its duty of water allocation to those senior rights holders who put their allocations to beneficial use. This means the agricultural communities are characteristically safe in times of water shortage because their rights are first priority when the water is short. Yet, studies show that alfalfa is still able to produce a crop without water for a season (albeit at a lower yield). This means cities and other essential—but more junior—water users can “borrow” water in times of dire shortages from alfalfa farmers and compensate for the loss in crop yield. Fleck takes issue with the fact that farmers and municipalities only take advantage of this preservation tactic when all parties need to take a huge cut in their allocations for conservation purposes. Instead, he would like to see protection practices such as these taking over the agricultural industry by choice rather than necessity. In light of the senior rights system and the ability of crops to survive with little water for a season or two, the myth of farmers and crop-growers running out of water is, in most cases, exaggerated.

Chapter three, “Fountains in the Desert,” highlights the triumphs of Las Vegas’ water management system despite its dry climate and miniscule allocation of the Colorado River. The focus of conservation has been so effective that Las Vegas does not use its full apportionment of water from the Colorado River, and while its water use decreases, the city’s population continues to grow. Surprisingly, in a city known for its hedonistic qualities, the community managed to reduce its water usage by twenty percent because of its willingness to participate in government conservation efforts without fighting back. Las Vegas accomplished these reduction efforts during a significant population boom, further debunking the myth that a population increase compels an increased need for water.

In chapter four, “Negotiating the Rapids,” Fleck points out the value of informal conversations to river management. He identifies how many of these types of interactions are so successful because, in these informal settings, individuals speak as individuals, not stakeholders for their place of employment. Fleck provides one example of a group created as a result of an informal conversation: the Yuma Desalter Working Group. One of the federal government’s senior water managers formed this group during a rafting trip on the Colorado River. After a weekend of hanging out by the river, drinking beer, and casually discussing current water issues, the group met later on and came up with plans to reduce the dry-up risk of lower Colorado River Basin users while, at the same time, maintaining the wildlife and habitat at the Cinega de Santa Clara. Fleck credits the accomplishments of this group to a breaking down of professional conversational barriers before digging into the issues, obviating the worry that people of different backgrounds and beliefs will refuse to compromise.

Chapter five, “Arizona’s Worst Enemy,” provides an example of the consequences of unwillingness to compromise. Fleck describes Arizona’s various actions that denote its historical belief that “water is for fightin’ over,” the main myth that this book aims to engage. This contentious attitude continues to cause issues for Arizona beyond the original refusal to sign the Colorado River Compact in 1922, the agreement that created an interstate Colorado River share system. After officials refused to compromise, Arizona received its first break from detrimental allocation sizes in court: Arizona sued California and prevailed in obtaining the water it believed it needed to survive, even though Arizona would soon find itself trading water for California’s help transporting it into the state. The ongoing lawsuits between Arizona and California are still long from over, and the outcome of this suit only amplifies the allocation issues the Colorado River Compact presented. Fleck believes compromise will be even more imperative if redistribution occurs in terms of allocations, and he does not predict Arizona will be willing to cooperate in the future either.

Chapter six, “Averting Tragedy,” describes how compromise, rather than fighting, alleviated the first instance of potential groundwater exhaustion in Los Angeles County’s West Basin (“West Basin”). Finding new solutions to groundwater pumping and finding an imported water supply to replace the salty groundwater were proving to be difficult tasks for city water managers. The difficulty came about because each community continued pumping groundwater without regard for its neighbors. Political scientist Elinor Ostrom studied the disregard for neighboring communities that plagued this situation, and she found that it caused severe interstate agency rivalries. She believed, much like Fleck, that informal conversation, or what she called “cheap talk,” was the best technique for getting communities to come together and compromise. As a result of “cheap talk,” the West Basin Water Association materialized, and all but one of the communities joined together to combat the issues as a team. Not until the court ordered the lone holdout community to participate did the reckless groundwater pumping completely stop. Fleck concluded that sometimes the courts are the only entity that can successfully set rule-breakers in their place for the greater good, further proving that fighting over water is not the best solution to large scale problems.

Chapter seven, “Turning off LA’s Tap,” details another successful instance of compromise over conflict in California. The state has a historical tendency to claim upper basin states’ unused water allotments without permission. While this forms a temporary fix for California’s drought issues, eventually upper basin states needed to save water rather than spend it. This trend caused conflict between California and upper basin states, and eventually all seven states banded together to address and resolve the conflict in 1990. With the input of all seven states regarding California’s request to receive the surplus water each year, a protocol for handling river allocation proposals was born, and the states agreed that nothing would pass as law without approval from all seven states. When the compact states did not approve the surplus request, California needed to create a soft landing for itself by decreasing its river use, starting with the places it used water the most: local agricultural or urban communities. Despite its efforts, California failed to reduce usage, and the government stepped in and slashed the overused allocation to its originally defined amount. Although this action was a harsh wake-up call for California, the other six states felt the original allocations were fair, proving once again that compromise, albeit as a result of a little government intervention, is often necessary to drive revolutionary changes.

Chapter eight, “So Cal Cuts Back,” shows California’s efforts to dial back water usage as demanded by the government. As a fix for this, the metropolitan communities formed a management system. The original objective of this group was to find a way to supply the urban areas with the amount water they required. This tactic quickly failed as all three water storage areas dried. The Metropolitan Water District (“Metropolitan”) governance realized it needed to abandon the plans and changed focuses. The spotlight turned to groundwater recovery and the recycling of water previously unfit for human use. Fleck illustrated a state’s ability to manage a change in allocation or a shortage in resources by banding together with its individual communities, demonstrating the importance of exploring alternatives before succumbing to the fear of water scarcity.

Chapter nine, “The Great Fallowing,” lays out the history of the Imperial Irrigation District (“Imperial”), the district with the most water allocated from the Colorado River. In order to eliminate the frequent flooding that would jeopardize the lower river valley, the district created The Hoover Dam and the All American Canal. The dams evened out the flow, making year-round irrigation possible. Once these structures were set up, Imperial’s wasteful practices of hoarding water became more apparent among its residents: farmers continued to overestimate the amount of water they needed, creating an excess of runoff, and the sea began to rise and flood the nearest farmland. When other states expressed concern, Imperial chose to join together with the water-hungry Metropolitan, and it promised a share of its unused water if Metropolitan could come up with a way to conserve Imperial’s water. The practices soon turned a surplus into a deficit, and the agricultural community had to learn how to farm with less. This instance points us back to the notion of efficiency in agricultural techniques. Fleck once again challenges local governments with this chapter to look into this scarcity strategy, not only in times of scarcity but in everyday irrigation practices.

Chapter ten, “Emptying Lake Mead,” highlights the trials of keeping the Lake Mead and Lake Powell Reservoirs relatively full while fulfilling Mexico’s water distribution requirements. Lake Mead’s level was dropping quickly, and policy debates began about shortages that the Colorado River Basin states had never encountered. When Lake Powell surpassed Lake Mead in dry-up potential, the network of water collaborators came together just as it did to create the Colorado River Compact in 1922. It came up with a plan, to which all states agreed, that required proportional allocation cuts when the water was low for each state. When 2014 rolled around and Lake Mead was still declining, Fleck says it was apparent that the deal did not go far enough in terms of cutting back. The network had a lot more work to do to stop the depletion of both reservoirs.

In chapter eleven, “Who’s Left Out,” Fleck addresses, once again, the importance of inclusiveness. During the change in operations at the Glen Canyon Dam, electricity consumers were left out of the conversation. New water management around the Salton Sea did not think to include the public health community when making the changes would impact the surrounding air quality, and when the Bureau of Reclamation conducted its “Colorado River Basin Water Supply and Demand Study,” it failed to mention large stake holding Native communities entirely. When these issues were brought up, Fleck was careful to point out that the changes often had a sizable impact on Native American tribes, who are very rarely included in the conversation. The Colorado River Compact rarely mentions the Native communities, and decision-makers did not invite any of them to participate in water conversations. Lastly, when making influential decisions about water management, the host often fails to consult or invite environmentalist groups. Fleck believes that leaving out these groups can harm the progress that “network” groups are making by slowing down the process and requiring revision of previous decisions for inclusiveness.

Chapter twelve, “A Beaver Returns to the Delta,” further discusses inclusivity, and shows how collaboration between formally feuding groups can help to undo much of the damage we have done to the Colorado River over the years. Fleck explained that after the Colorado River Compact creators divided the river, they found that dry spots would emerge in arid seasons, and the wildlife would migrate until the river started flowing again. Most recently when the river started flowing again in the previously dry Colorado River Delta, Mexico, the United States, and environmental groups met to devise a plan to keep the water flowing through this delta. This plan, titled Minute 319, was the first of its kind that mentioned environmental implications and wildlife preservation. This collaboration felled two myths. The first was that environmentalists and water managers could not work together to achieve common goals. The second was that the delta was dead, and that rejuvenation of wildlife and surrounding communities was impossible due to the growing water demands and the consistent population booms alongside the Colorado River.

In chapter thirteen, “Conclusion,” Fleck wraps up his book by highlighting the issues with over-allocation, hoarding of rights, and “use it or lose it” laws, and by stating the major issues and providing potential solutions. He believes that every state will need to understand each other’s needs and work together to solve the problems of the Colorado River. Fleck also warns of the media’s ability to shape the viewpoints of people or the tone of events. He finally stresses the importance of communication, and he reminds us that a simple informal conversation or meeting could solve problems that the many entities of the Colorado River face each year.

In conclusion, Water is for Fighting Over serves as a call to collaborative action for those sharing and managing water stemming from the Colorado River. Fleck provides a positive outlook on the future of the Colorado River if communities find ways to come together for conservation efforts and management rather than turn to fighting over every last drop. The book supplies a comprehensive history of systematic inefficiencies and the collaborative ways that we can address them in the West. Fleck illustrates the various instances that he believes debunk the myths that create sleepless nights for many who depend on the Colorado River’s allocation system. He shows that water is not for fighting over, but it is for sharing and finding solutions to its management as the years go on.

 

Rebecca Spence

[1] John Fleck is a former journalist for the Albuquerque Journal, and the current director of the University of New Mexico’s Water Resources Program. He maintains a blog touching on topics regarding water and climate in the West, and he sends out periodic email newsletters with updates. Water is for Fighting Over is his second book. His first book, The Tree Rings’ Tale, is a book for middle-school-aged students about the climate of the West.


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.