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

 

 


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


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

Denver, Colorado                         April 7, 2017

“To be a Coloradan, What Water Means?” Keynote Presentation by Ken Salazar, Former U.S. Secretary of the Interior and U.S. Senator

 

At the 2017 University of Denver Water Law Review Symposium in Denver Colorado, former United States Secretary of the Interior, Ken Salazar, offered his insight into what water means as a Coloradan.

Secretary Salazar began with how his history has defined what water means to him. His family has farmed and ranched the soils of the Rio Grande and its tributaries in the San Luis Valley since 1598. His family had priority number twenty-three out of the Rio San Antonio, and good and bad years affected his family’s crop. Secretary Salazar said he did not grow up rich, but he grew up surrounded by the Sangre de Cristo and San Juan mountains and the Rio Grande and Rio San Antonio. A lot of the divine providence that guided him through the experiences of serving the people of Colorado and the United States he said started in the San Luis Valley where he learned about the nexus between humans and the planet on which we survive.

Secretary Salazar applauded Colorado for being a pioneer in dealing with water issues, but warned that the state still has a long way to go. Colorado pioneered the doctrine of Prior Appropriation, which, despite criticism, has changed and evolved to become a working system. Other historic examples of where Colorado led the way include Colorado’s efforts to integrate ground and surface water uses in the 1960s and Colorado’s creation of the Instream Flow Program in the 1970s.

Secretary Salazar next identified two major water-related challenges facing Colorado: population growth and climate change. Colorado’s population is expected to nearly double in the next forty years. The challenge Colorado faces is how to supply those additional people and still preserve the open spaces its citizens have come to love. Secretary Salazar also briefly addressed climate change. According to projections, the Colorado River and the Rio Grande basins can expect to see a significant reduction in precipitation. So, as environmental demands increase, Secretary Salazar is hopeful that society will continue to recognize the importance of protecting and restoring America’s ecosystems.

In the face of such challenges, Secretary Salazar said it is important to look back on stories where Colorado has been successful. For example, he recounted a story from 1990 when he was head of Colorado’s Department of Natural Resources. California, in the midst of a severe drought, was preparing to litigate some of the miscalculations made during the drafting of the Colorado River Compact hoping to get a greater share of the water supply. Secretary Salazar oversaw a group of Colorado officials tasked with responding to California. Just when all hell seemed ready to break loose, Secretary Salazar and the group decided to send an olive-branch in the form of a letter. In that February 21, 1991 letter, which Secretary Salazar authored and Governor Roy Romer sent to Governor Pete Wilson of California, Colorado offered to collaborate. It said Colorado understood California’s needs, and that it was willing to work with the other Colorado River basin states and the federal government to assure that California would make it through the drought. However, the letter also indicated that Colorado wanted to be sure that any ensuing agreements were addressed within the Law of the River and that the framework of the law not be changed. A quarter century later, the February letter has stood the test of time and set a precedent for collaboration among the Colorado River basin states, the federal government, and the nation of Mexico. So, if collaboration was possible on such a litigated river, then it is possible that the tradition of collaboration might continue in the future.

“In the West, when you touch water, you touch everything,” concluded Secretary Salazar, quoting the late Congressman from Colorado, Wayne Aspinall. This is true today, and will remain true in the future. So, in looking for solutions, Secretary Salazar urged the audience to look back at the past to provide lessons for the present.

After sharing his insight, Secretary Salazar provided the symposium with an opportunity for questions, during which time the symposium raised four matters: the Sangre de Cristo mountains; the 1872 Mining Law; the Senate’s recent decision to exercise the “nuclear” option for confirming Supreme Court nominee Neil Gorsuch; and, Secretary Salazar’s opinion of current Secretary of the Interior, Ryan Zinke.

Secretary Salazar finished his keynote address with a message of hope. He said that even though nothing is certain because of the current presidential administration, the United States is a strong nation and a strong democracy. Time will pass and there will be new leaders. Climate change is not going away, it is an existential issue with which someone will have to grapple. Secretary Salazar pointed to energy innovation by the private sector and explained that he is not despairing. There will be a 2020 and a 2024. The United States of America has the capacity to grapple with these tough issues that affect Colorado, the nation, and the planet.

Trevor C. Lambirth


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?