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

Denver, Colorado                         April 7, 2017

Science and the Courtroom: How Modeling Is Changing The Game

 

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

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

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

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

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

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

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

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

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

Gracen Short


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

        Denver, Colorado                         April 7, 2017

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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