“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

 

Denver, Colorado                          April 8, 2016

COLORADO RIVER COMPACT ISSUES AFFECTING THE NAVAJO WATER PROJECTS

At the University of Denver Water Law Review’s Annual Symposium, Assistant Attorney General and member of the Water Rights Unit of the Navajo Nation Department of Justice (“NNDOJ”), Stanley Pollack, spoke about issues and challenges the Colorado River Compact pose to the Navajo Nation’s water projects.  The mission of NNDOJ’s Water Rights Unit is to protect the water rights of the Navajo Nation.  The NNDOJ, as the Navajo Nation’s representative in state and federal litigation, is currently pursuing five general stream adjudications.

Pollack prefaced his presentation by focusing on various Colorado River issues and how interstate compacts put different restraints on Navajo water development, particularly in the context of drinking water projects.  Pollack emphasized the need to provide drinking water to the Navajo Nation.  Pollack pointed out that thirty to forty percent of the Navajo physically haul their drinking water in barrels.  Pollack illustrated this point with a picture drawn by an elementary school student from Lake Valley, New Mexico.  The picture was one of many drawings elementary school children submitted during the Navajo Gallup Water Supply Project (“Supply Project”) hearings.  The drawings were supposed to depict what water meant to the children and the importance of water.  The drawing Pollack showed was of a pick-up truck with two large barrels with the word “water” written on them in the truck’s bed.  This drawing demonstrated that there were generations of children within the boundaries of the Navajo Nation that do not think drinking water is something that comes out of a faucet, but from a barrel in the back of a truck.

Pollack then asked the audience to imagine themselves as members of the Navajo before the explorative efforts of the Europeans.  He showed aerial maps of what the Navajo Nation used to be in contrast to what it became after European migration and the establishment of the United States.  The Navajo called their homeland Dinétah, and it encompasses the land between the Four Sacred Mountains: Mount Blanca, in Southern Colorado; Mount Taylor, in New Mexico; San Francisco Peak, in Arizona; and Mount Hesperus, in Colorado.  What becomes evident, said Pollack, is that this is high desert country, subject to a dry and arid climate with little development.  He emphasized that the Navajo had been thriving in this area for hundreds of years, until the day when foreign people came along and began drawing boundaries on the land.

 

The first boundary was the establishment of the Navajo Reservation.  The reservation greatly reduced the land that the Navajo called home.  Next, state boundaries began forming and the Navajo saw the U.S. government parcel up its homeland, subjecting them to boundary lines the Navajo had no say in forming.  Then, in 1922, the Navajo saw the U.S. government divide the Colorado River Basin into an upper and lower basin.  Pollack explained that, once again, the United States subjected the Navajo to boundaries they had no say in forming, but must abide.  Pollack noted that with each boundary line came new political constraints on the Navajo.  The boundaries told the Navajo where they could and could not live and what they could and could not do on the land.  These restrictions imposed limits on what the Navajo could do with their water, and that, Pollack said, is what he wanted to discuss.

Pollack quoted the language of Article VII of the Colorado River Compact: “nothing in this compact shall be construed as affecting the obligation of the United States to the Indian tribes.”  He said that by this language, the rules and boundaries on the map should not apply to the tribes.  However, in reality, this is not the case.  The Navajo finds themselves almost entirely in the Colorado River Basin—upper and lower—and within the three states of Arizona, New Mexico, and Utah.  The geography of the Navajo Nation, Pollack said, makes it difficult to protect the water rights of the Navajo because there are so many entities at play, each with its own rules, regulations, and characteristics.

Pollack then rhetorically asked why, if the language of the compact really meant what it said, is providing water to the Navajo such a problem.  He answered this by saying that, as an attorney for the NNDOJ, he can litigate and litigate, but at the end of the day, only Congress has the power to authorize a water development plan for the tribes.  Therefore, Congress will use that power as it sees fit, and, ultimately, litigation is a “hollow exercise.”  Litigation yields merely paper water rights, and the people Pollack represents cannot drink water from the paper he might obtain in litigation.  Consequently, when the Navajo want to develop their water, they must go to Congress and request the funding necessary for that project.  In doing so, they have to make sure that what they want to do fits within the political systems in place.  Pollack explained that the Colorado River Basin is not just about where the watersheds are on a map or the water within the system, but rather the areas that can receive water because of the Colorado River System.

Pollack next discussed how the upper basin is composed of the parts of the upper-basin-states Lee Ferry serves.  Lee Ferry is the dividing point between the upper and lower basins.  The lower basin is composed of those parts of the states without the drainage of the Colorado River system.  This means any part of a state, whether in the upper or lower basin, is really part of the upper basin if water from the upper basin can serve it.

The only parts of New Mexico considered part of the Colorado River Basin are in the lower basin, Pollack said.  He then displayed a map and pointed out the Navajo Nation, the San Juan River Basin, and the New Mexico Water Rights Settlement.  The centerpiece of the New Mexico settlement, Pollack said, is the Supply Project.  He explained that there are two pipelines coming from the San Juan River that serve communities in the upper basin and lower basin in New Mexico, the Rio Grande area, and Arizona.  Pollack noted that this creates four different communities needing water delivery.  Delivering water from the San Juan River to communities in the upper basin of New Mexico requires little transportation because the communities use water from the upper basin.  Pollack further explained that the geographical location of the upper basin makes sending water to the Rio Grande very simple, but sending water to the lower basin more difficult because the lower basin has the drainage of the Colorado River System.

It is as odd paradox, Pollack continued, that the rules essentially encourage an out-of-basin use of water by sending water to the Rio Grande where there is no return flow to the Colorado River.  While, at the same time, the rules are set up against using water in the lower basin where there is the drainage of the Colorado River System because the waters below Lee Ferry can serve the lower basin.  However, in 2003, Pollack went to the Upper Colorado River Commission and persuaded the body to allow the Supply Project to deliver water from the upper basin to the lower basin, provided that the Supply Project consider the water use as an upper basin use.  What is important about this, Pollack said, is that the states can work together to find solutions to interstate problems even though the laws of the river on their face do not allow for such actions.

Pollack concluded his speech by introducing a pipeline project that he said is still “a pipe dream.”  The project, called the Western Navajo Pipeline, would deliver water to the Western portion of the Navajo Nation.  Pollack explained that the Western portion of the Navajo Nation is an area to which it is particularly difficult to get water because there are no sources of ground or surface water apart from the Colorado River.  This forces most Navajo to haul their water.  Pollack asserted that because it is so hard to get water from the Colorado River in the Grand Canyon, the Navajo should get water from Lake Powell.  Therefore, he proposed to pump water from Lake Powell above the basin, and then pump it down into the Western Navajo area.  Pollack thinks that the precedent set from the New Mexico settlement, as well as the Upper Basin Resolution from 2003, should allow this pipeline pipe dream to become a reality.

Tucker Allen


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

Denver, Colorado                          April 8, 2016

THE COLORADO RIVER SYSTEM:  PERSPECTIVES FROM THE LOWER BASIN

Ted Kowalski, Chief of the Interstate, Federal & Water Information Section of the Colorado Water Conservation Board, moderated a panel at the University of Denver Water Law Review Annual Symposium featuring three speakers addressing different perspectives from the Lower Basin.

The first speaker was Bill Hasencamp, Manager of Colorado River Resources, Metropolitan Water District of Southern California (“MWD”).  Hasencamp represented the municipal provider perspective on the panel.  MWD covers a one trillion dollar economy, 5,200 square mile service area, and—as one of the largest water providers in the country— approximately nineteen million residents.  Hasencamp explained how the drought in the 1990s forced Southern California to rethink the way it rationed water.  In response to the drought, Southern California devised an integrated resource plan for meeting reliability needs of the region.  The plan focused on agricultural to urban transfers and augmenting the dry year water supply with storage.  According to Hasencamp, the plan was effective, but maintaining the water supply has been a challenge for several reasons.

One challenge has been the geography of the delta between Northern and Southern California.  According to Hasencamp, the state water project receives water from the Sacramento River that comes into the delta from the North.  The pumps for both the state water and central valley project are both in the South.  Therefore, in order for the water to move between Northern and Southern California, it must move through the delta.  Unfortunately, fish swim too close to the pump and, in order to protect them, state and federal environmental regulations have forced Southern California to reduce pumping with increasing frequency.  Hasencamp explained that this year alone, during the worst drought in California’s history, California lost nearly a million acre-feet of water because fish were swimming too close to the intake.  In addition to fisheries, other long-term risks on the delta include seismic concerns with the bay area fault, as well as rising seal levels.  Hasencamp warned that if catastrophe hit, the delta could become an inland sea, and that this might prohibit the pumping of water for years.

Hasencamp then asserted that the focus needs to be on getting the delta functioning again in a way that will protect the environment and meet the water needs of the state.  Hasencamp explained that MWD believes the way to do that is through tunnels under the delta.  With tunnels, if a catastrophe occurred and the delta failed, Southern California would not lose pumping as the state could still receive water from the river upstream.  Tunnels would also ensure that Southern California could obtain water in a way that protects fish from pumps.  The plan is currently up for approval and Hasencamp is hopeful that it will pass.

Another challenge for California has been the apportionment on the Colorado River.  Hasencamp explained that a series of compacts and agreements give each state a certain allocation of the Colorado River.  After fifty years, California saw a dramatic reduction in its apportionments under the Colorado River Compact.  As a result, the state had to develop a plan to limit water intake in order to live within the reduced allocation.  In response, California developed a plan with other states to keep the Colorado River Aqueduct full until the year 2016.  Through the combination of special surplus water and agricultural to urban transfers, the aqueduct would theoretically have stayed full until 2016.  However, Hasencamp described a catch in the plan: Lake Mead had to remain at least two-thirds full.  Unfortunately, as he explained, MWD did not anticipate the worst drought in the history of the Colorado Basin.  As a result, Southern California did not receive the anticipated water from the river and instead had to shift its focus locally toward developing recycling, desalination, groundwater recovery, and conservation plans.  Hasencamp briefly discussed some of these plans including implementing agricultural conservation measures with Imperial Irrigation District (“IID”) to grow the same crops with less water; lining the American and Coachella canals; developing programs to incentivize farmers not to grow crops; entering a water sharing agreement with Nevada; and developing the Lake Mead Storage Program.  Hasencamp explained that even as the drought in California continues, extra water does exist.  Unfortunately, California cannot pump the water so they are still receiving drought allocations.  In conclusion, he suggested that fixing the delta would help to alleviate this tension.

The second speaker was Chuck Cullom, Manager of Colorado River Programs, Central Arizona Project (“CAP”).  He represented an agricultural and urban perspective.  To begin, Cullom gave a brief overview of the Colorado River System describing it as “the engine of the west.”  While not even in the top twenty largest rivers in North America, the Colorado has four times the annual run-off in storage capacity.  CAP delivers water to four million people in Arizona, provides water for cities and irrigation, and has the most diverse customer classes in the Colorado River system, serving eleven tribes, ten irrigation districts, and ten cities.

Like Hasencamp, Cullom emphasized the steady decline in Lake Mead and the implications it had for CAP.  Currently, the Lower Basin runs at a deficit of about 1.2 million acre-feet every year.  In accordance with the compact, MWD and California have invested billions to reduce their water use from 5.1 to 4.4 million acre-feet, and, still, Lake Mead is declining.  The decline undermines the effectiveness of these cooperative agreements.  Cullom explained that from CAP’s perspective, it must bear the burden of this shortage from what, it believes, is a shared obligation.  The Colorado River system is a linked system of seven states in the Lower Basin.  As the reservoir declines, the reductions grow.  When Lake Mead evaporates, apportionments do not factor in that reduction.  But through cooperative agreements, states have been able to define what shortages will look like in the Lower Basin.

During the first anticipated shortage, Cullom clarified that CAP’s underground water storage will diminish and agriculture customers could be cut by more than half.  In light of the persistent long term risk of shortage, CAP has developed several responses.  First, it has invested millions into storing water underground to protect users from shortages.  Second, like MWD and IID partners in California, CAP has begun storing water in Lake Mead to prop the reservoir up in order to avoid immediate shortage issues and reduce the risk of long-term shortage issues.  CAP has reduced annual diversion by between 140,000-180,000 acre-feet.  By the end of this year, CAP will have stored 345,000 acre-feet in Lake Mead.

Cullom concluded by emphasizing that the structural deficit creates a long-term risk to all Lower Basin Colorado River users and undermines the ability to become cooperative and collaborative partners.  CAP is attempting to follow the lead of California in developing proactive steps to reduce its use, but also is looking to collaborate and cooperate with Lower Basin partners to assist and share in those additional reductions.

The final speaker was Kevin Kelly, General Manager of IID.  He represented the irrigation perspective in a district with the largest number of agricultural to urban transfers in the nation.  According to Kelly, because California has been exceeding its 4.4 million acre-foot entitlement to the Colorado River, IID entered into transfer agreements to bring California “back in line.”  As Kelly explained though, “the only dangling question mark is the Salton Sea.”

According to Kelly, Imperial Valley is an economically-challenged community with 450,000 acres in active cultivation.  Because of the vast farmland and economic nature of the community, the recession of the Salton Sea will have devastating impact on the Imperial Valley.  When the Salton Sea issue first arose, the state of California took responsibility for handling it, focusing primarily on restoration.  However, as Kelly explained, California failed to fulfill its responsibility.  In 2014, in order to bring this issue to the forefront, IID filed a petition with its own state water board.  It informed California of its failure to meet the task of tackling the Salton Sea problem and requested the state board resolve the Salton Seat question as a condition of the transfers.

By the year 2047, 74,000 acres of lakebed will lay exposed, and the water elevation will be negative 249,090 feet.  To address the issue, IID suggests filling up the lakebed with habitat and renewable energy projects.  Kelly argued that renewable energy projects would be especially effective because the same exposed lakebed in the Salton Sea happens to correspond with this hemisphere’s largest untapped geothermal resource.  Kelly asserted that this resource could replace the lost generation at the San Onofre nuclear plant.  Yet, unlike the plant, the Salton Sea would have virtually no emissions.

Kelly noted that California has the most aggressive renewable portfolio standard in the nation as well as the most ambitious greenhouse gas reduction bills.  But in the last four years since San Onofre went down, air in California has become markedly more polluted.  According to Kelly, geothermal energy should be an integral part of the solution to filling up the exposed lakebed.  Kelly argued that IID could not enter another quantification settlement agreement when it is struggling to implement the first one.  At the end of his speech, he posed a rhetorical question: When you pit agriculture against all the other uses in California, who decides whose economic project is more important?  Kelly answered: “In a diversified economy in the southwest, agriculture needs to count for something.”

Neillie Fields


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

 

Denver, Colorado                          April 8, 2016

THE HISTORY AND IMPORTANCE OF INTERSTATE WATER COMPACTS

The 2016 University of Denver Water Law Review Annual Symposium focused on the topic of Interstate Water Compacts, both past and present.  The first speaker, retired Colorado Supreme Court Justice Gregory Hobbs, spoke on the history and importance of interstate water compacts, both in the United States as a whole and Colorado in particular.

Justice Hobbs began the Symposium by noting how interstate compacts illustrate the delicate mix of federalism that makes the United States unique.  His presentation centered around the story of Delphus Carpenter, a graduate of the Sturm College of Law and the father of the interstate water compacts created in Colorado.  Born in 1877, a year after Colorado became a state, Carpenter grew up in Greeley working the land.  After graduating law school, he became a practitioner in Greeley.  He was a strong believer in the prior appropriation doctrine.  Coloradans at that time, and settlers across the West, believed that they owned the water within their territories, but this view would soon prove incorrect.

Justice Hobbs noted the significance of 1902.,  During this year the Federal Reclamation Act took effect and Kansas sued Colorado over water rights in Kansas v. Colorado.  Moreover, both the Bureau of Reclamation and the Federal Government asserted that planned reclamation project should receive all unappropriated water.  Justice Hobbs explained that the states, including Colorado, were not happy with the situation that was developing in the West, a war of sorts for water rights.  In 1907, the Supreme Court finally issued its decision in Kansas v. Colorado, holding that a fact specific equitable apportionment analysis would control these types of disputes between states over water rights.  Justice Hobbs stated how Colorado “won” the first round of apportionment due to its settled agriculture across the state.

Next, Justice Hobbs discussed how the changing border of the United States in the late nineteenth century affected the development of water rights in the West, particularly in regards to Mexico.  At that time, homesteading was the philosophy of the West, and, when federal law granted a homestead it only included surface water rights.  Justice Hobbs asserted that this foreshadowed the eventual difficulty of adjudicating groundwater rights under interstate compacts.  Justice Hobbs remarked on the prescience of the framers of the Colorado Constitution, who declared that the water belonged to the public and the people.  This idea was part of the homestead philosophy, but had even deeper roots in the traditions of Native Americans who lived in the West long before Europeans had settled there.

Justice Hobbs then turned back to the story of  Carpenter.  He explained that Carpenter entered into this mix of uncertainty after graduating from law school.  Carpenter was a one term state senator.  Nonetheless, after he left office, the whole state of Colorado turned to him on a bipartisan basis to assist them in the growing number of disputes over waters within the state.  In 1908, the Supreme Court declared that the new reservations for Native Americans needed enough reserve water to sustain their populations and such water was not subject to any state doctrines.  Justice Hobbs discussed how it was a rude awakening for the states to learn that they did not own their own water.  Additionally, there was growing concern among the citizens of Colorado over lawsuits from downstream states.  At this time, Carpenter represented the Greeley Water District, and sought one hundred thousand acre-feet of water from the Laramie River—but Wyoming was not inclined to deal.  Justice Hobbs explained how all of these circumstances forced Carpenter to reconsider his belief in the prior appropriation doctrine, and prompted him to begin research on compacts to settle these disputes.

Justice Hobbs described how people in Colorado and the surrounding states were not receptive to the idea of the federal government issuing decrees to resolve these water disputes.  Carpenter and others wanted to rely on state sovereignty to resolve the disputes between the states and make binding contracts.  These negotiations began in 1922 in Washington D.C.  Justice Hobbs described how Carpenter brought detailed maps along with him to show plans to irrigate the entire Eastern Slope.  Carpenter also wanted the states to be able to use the water as they saw fit within their own borders.  By the end of the negotiations, he accomplished his goal of giving state courts the power to work within their own rules through compacts.  Carpenter also set the landscape for how courts adjudicate these water rights today.

Justice Hobbs closed his speech by describing the importance of water storage here in the West, especially as more and more people migrate to urban centers like Denver.  Justice Hobbs noted how Carpenter knew this when he worked as a state senator to establish the correct priority dates for the reservoirs in Colorado.  To illustrate this point, Justice Hobbs displayed various images of reservoirs across Colorado, including Cherry Creek and the Rio Grande Reservoir.  Justice Hobbs asserted that, following the 1922 negotiations, Carpenter laid the foundation from which eight more interstate compacts would arise.  However, Justice Hobbs pointed out that the success of interstate compacts does not ensure a conflict-free future.  Justice Hobbs finished his remarks by saying: “We want it all, and we think we can do it all.  But there is a limited water supply, and we share it.”

 

Brian Hinkle


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

 

Denver, Colorado                          April 8, 2016

Keynote Address

Introduction

Patricia Mulroy’s keynote address urged future generations of water law attorneys and policymakers to build upon the established partnerships that made the Colorado River Basin community so effective over the past two decades.  Consistent with the theme of the conference, “Conflicts and Cooperation: The Past, Present, and Future of Interstate Water Compacts,” Ms. Mulroy emphasized the importance of cooperation in the face of increased water challenges.  She further stressed the importance of shifting the conversation about water from a discussion about water rights, to one about responsibilities.  Throughout her keynote address, Ms. Mulroy praised the Colorado River Basin participants for their ability to form partnerships and take responsibility for various challenges.

As part of her work as a Senior Fellow at the Brookings Institution and former General Manager of the Southern Nevada Water Authority, Ms. Mulroy discussed opportunities to assess international water disputes and consult with international communities.  With this background in mind, she noted that the Colorado River Basin is not without disputes, but asserted that it is the most respected and functional river community throughout the world.  While the Colorado River Basin is a positive model for other water communities, it still faces a number of obstacles in the future.

Strength in Cooperation and Partnership

In highlighting the Colorado River Basin’s accomplishments, Ms. Mulroy attributed its strength to the partnerships that the Basin has formed.  Specifically, Ms. Mulroy said that the Colorado River Basin community derives its strength from its compact.  When looking at the compact, Ms. Mulroy said she sees a document, which in its most basic form, is a partnership.  The compact emerged when the parties recognized that the pillar of Colorado water law, “first in time is first in right,” cannot work between seven states.  As a result, the Colorado River Basin, as a community, created a compact to forge a path for seven equal partners.  Ms. Mulroy argued that this partnership and the parties’ determination to find a solution to issues gave the compact the strength to succeed.

Moreover, Ms. Mulroy noted that this partnership created a culture of cooperation and partnership that allowed the Colorado water community to flourish where others have failed.   Ms. Mulroy noted however, that this partnership has only emerged in the past few decades.  From the 1950s through the 1980s, the compact was least successful because the parties “jockeyed” to obtain preferrence.  However, events such as the litigation between Arizona and California, reminded all of the parties that litigation does not result in a system of winners and losers—only losers.  This lesson sunk in during the 1990s and into this century.  Since this epiphany, the Colorado River Bain community has journeyed back to achieve the underlying purpose and reasoning that helped form the compact initially—a partnership where all seven members are equal.  Ms. Mulroy said that the seven equal partners find opportunity where others find obstacles.

Impending Strains on Future Water-Related Conversations
In recognizing some of the obstacles facing the local water community, Ms. Mulroy pointed to two issues that have catapulted water to an issue of national importance.  She cited the Flint Michigan water crisis as one triggering event.  She argued that it was not the mistake initially made, but the fact that the water utility did not say anything to the community that will negatively impact Colorado River Basin conversations about water.  This betrayal eroded the inherent trust Americans have with their water providers. This loss of trust will weave itself into urban conversations and may hinder conversations regarding water resource management.

Next, Ms. Mulroy noted that the nation currently faces the immense task of determining how to replace the infrastructure that affects the nation’s ability to conserve, manage, and transport water.  Replacing the infrastructure will invariably become an additional tax burden at a time when the general public is resistant to more taxes.  Ms. Mulroy believes that these two issues, among others, will elevate the subject of water to a larger national dialogue.

Impending Strains on the Interplay between Interstate Compacts and Federal Laws

While the nation’s focus is shifting toward water and water scarcity, Ms. Mulroy noted the interplay between federal law and interstate compacts that could result in a serious strain on the ability to form partnerships.  Specifically, Ms. Mulroy pointed to three laws Congress enacted in the 1970s—the Clean Water Act (“CWA”), Safe Water Drinking Act (“SWDA”), and the Endangered Species Act (“ESA”) (collectively “Acts”)—that have the potential to impact the Colorado River Basin system and efforts to cooperate between the main participants.  While the Acts successfully accomplished Congress’ initial goals, Ms. Mulroy suggested that it is unclear whether the Acts are flexible or adaptable enough to meet the needs of a changing climate.

Ms. Mulroy strongly advocated for change—whether it is in administering the Acts or through substantive changes to the provisions of the Acts.  She urged attendees to evaluate the Acts and ensure that each has the capacity to adapt to changing environmental and political climates.  In emphasizing the importance of flexibility, Ms. Mulroy pointed to the success of the Habitat Conservation Plan in the lower Colorado River Basin and the Species Program in the Upper Colorado River Basin as positive examples.

Ms. Mulroy cited the California Bay Delta as one example where the parties’ apparent inability to cooperate hindered water discussions.  She asserted that this inability to cooperate —something she referred to as the “just say no” syndrome—overlaid with the CWA, SDWA, or ESA, has the potential to create a perfect storm which will result in the Acts completely crumbling.  Ms. Mulroy predicts that an attitude of “just say no” will impact every basin where the parties do not form a partnership.

Looking to the Future

Having provided examples of successful and unsuccessful effective partnerships, Ms. Mulroy quoted California Governor Jerry Brown’s statement that he was going to “get shit done” as the mentality parties must adopt as society enters tough drought cycles.  For the Western water community to continue to be successful, Mulroy emphasized that conversations need to shift from a discussion about water rights, to one about responsibilities.  In the face of a changing environmental and political climate, it will only become more difficult to have rational conversations about tough problems.  The willingness to find solutions, in the face of daunting challenges, must serve to unite the West.  While every community has its own culture, infrastructure, and laws to administer, Ms. Mulroy argued that future generations must cooperate to confront common problems and avoid litigation.

Ms. Mulroy concluded her remarks by stating that her generation is handing down a legacy of partnership to the next generation.  With that legacy comes the responsibility to continue the partnership as we confront the new, more extreme stresses that will strain the compact over the next few decades.  She reminded the next generation of lawyers that the guiding principle, which has permeated conversations about water in the West, is that failure is not an option.  We need to find a way to cooperate to find a solution that works for all interested parties.  She strongly urged the next generation to venture outside its immediate communities and go see what it is like in other areas of the world, to tell a story about our journey back to being full partners, and to start thinking about the laws in their flexible fashion rather than a rigid manner.  Failure is not an option.


ETHICAL PRINCIPLES AND OBLIGATIONS FOR WATER LAWYERS

Denver, Colorado                 November 16, 2015

As one portion of its two-part workshop, the Colorado Water Congress hosted a series of presentations concerning the unique interaction between the Colorado Rules of Professional Conduct (“Rules”) and situations that often arise in the practice of water law.

Stephen H. Leonhardt, a shareholder at Burns, Figa & Will, gave the first presentation. He used James P. Owen’s book Cowboy Ethics: What Wall Street Can Learn from the Code of the West to guide a water lawyer through various situations that he or she could encounter in practice. Starting with the precept “when you make a promise, keep it,” Leonhardt compared the book’s discussion of ethics with Rule 1.2’s guidance on the attorney-client relationship. He also mentioned that proposed amendments to the Rules address issues surrounding modern technology and social media. In closing, Leonhardt presented the maxim “remember some things aren’t for sale” to stress that expert witnesses should be a tool for the water court, not a weapon for one side to wield.

The second speaker was David S. Lipson, an expert in hydrogeology and a professor at the Colorado School of Mines. Lipson frequently appears as an expert witness before water courts. He outlined some of the reasons why expert witnesses are important in water law, and clarified their ethical role. He introduced the multidisciplinary nature of water issues, noting that they often require many scientific disciplines working together in order to solve large-scale problems. He cited the recent discharge of mining waste into the Animas River as an example of interdisciplinary cooperation. In dealing with such problems, multiple scientific disciplines must collaborate to diagnose the problems’ causes and formulate solutions for cleanup or mitigation. Next, Lipson addressed the ethical guidelines that bind professional expert witnesses: (i) professional engineers’ licensing requirements, and (ii) professional societies’ voluntary codes of ethics. He went on to explain the limitations that professional societies’ codes of professional conduct place on expert witnesses’ obligation to advocate for their clients. Lipson closed by emphasizing that experts should advocate for the data or objective facts above all else, while also keeping the public health in mind.

The third speaker was Cynthia F. Covell, co-founder and shareholder at Alperstein & Covell. Her presentation focused on a frequent conflict of interest that arises in water law: when water law practitioners represent organizations and individuals for long periods of time and across different water districts. Covell emphasized that water law practitioners today need to advocate for conflict resolution that allows clients to maintain their longstanding relationships. Covell stressed that “material” conflicts are often hard to define in such a complex area of practice. She also discussed American Bar Association Opinion 93-337 and the “issue” conflicts that arise in water law when a lawyer advocates on two sides of an unsettled legal question. The opinion cautions concern over the lawyer’s credibility and that water law appeals go directly to the Colorado Supreme Court. Covell concluded her presentation by asking audience members when they think representation of a former client clearly ends for purposes of the Rules. Multiple practitioners responded to her question by warning of broad initial engagement letters sent to clients, and noting that malpractice insurers recommend sending a closure letter to clients when appropriate.

The workshop ended with a set of hypothetical problems presented by Leonhardt and Covell. These problems addressed the evolution of the Rules surrounding issues of modern technology, including rules currently proposed for adoption, as well as the Colorado Bar Association’s Opinion 127: Use of Social Media for Investigative Purposes. The first problem involved a lawyer representing an environmental non-profit organization opposing a real estate developer’s plan to build a resort in a beautiful mountain area. The problem discussed the developer’s Facebook page and to what extent the lawyer could use information the page contained. Per Opinion 127, a lawyer may always view the public portion of a person’s social media page including posts. A lawyer may not request access to a private portion of a social media profile of a person represented by counsel in a matter without first obtaining permission. A lawyer also cannot delegate these tasks to a third party. In communicating through social media, a lawyer must adhere to the same rules that govern traditional communications. Leonhardt and Covell also went through a problem addressing the “issue” conflicts Covell discussed in her earlier presentation. In this problem, a lawyer represents client C in an unsuccessful appeal against K. The lawyer continues to represent C after the appeal. Later, K asks the attorney to represent her in another matter she wishes to bring under the same theories the attorney had raised in the earlier appeal. While there is no clear answer to the dilemma, the discussion brought up issues of professional image and integrity, as well as appearing before the same judges on repeated occasions.

In sum, the presentations all offered valuable insight into the ethical practice of water law in light of new technologies and increasing complexity in the field.


Denver, Colorado                                          November 16, 2015

Retired Colorado Supreme Court Justice Gregory Hobbs provided an introduction to the history of Colorado water law at an event hosted by the Colorado Water Congress on November 16, 2015. Justice Hobbs retired this fall after nearly nineteen years on the Colorado Supreme Court. During his presentation, Justice Hobbs covered the origins of water law in the state and explained some particularities that make Colorado unique, even among other Western states.

To begin, he said, “In Colorado, water is life and politics, and it contains all the things we love about our state.” Justice Hobbs explained that Colorado water is vital not only for those within the state’s borders, but also for a large portion of the country. Waters beginning in Colorado travel downstream to eighteen states and Mexico, and it is for this reason Justice Hobbs said sometimes the state is referred to as “the Mother of Water.” In fact, Justice Hobbs discussed how out of all the water that originates in the state, Coloradans are allowed to use only a third of it; the rest is reserved for users in downstream states. Over the years, nine interstate compacts, two treaties, and three equitable apportionment decrees have determined the amount of water Colorado owes downstream.

It is no accident Colorado became the headwaters for so many major river systems, Justice Hobbs said, but rather it has to do with gold, slavery, and the Civil War. He explained how after the Kansas-Nebraska Act (which allowed white settlers in each of the territories to decide whether to allow slavery), both the South and the North looked west to see how each territory would decide. By the time the South seceded and war broke out, the area now known as Colorado had already been experiencing a major gold rush along the Front Range. Shortly after, organizers carved the Colorado Territory out of the Utah, Nebraska, and Kansas Territories, and Congress allowed it to enter on the side of the Union. The logic, Justice Hobbs pointed out, was that it would keep the region’s mineral wealth out of the hands of Confederates and help the North’s war effort. Along with the gold flowing down from the Rockies, of course, came the streams themselves, several of which formed the headwaters of the region’s most important rivers.

But any discussion of water law in Colorado doesn’t start with the territory. In fact, Justice Hobbs spent much of his presentation on water and its uses in the region before white settlers came. From 550–1276 C.E.., the Ancestral Puebloans lived in the area of Mesa Verde. As dry-land farmers, the people developed several ways of maximizing use of the sparse water in the region, including building a reservoir that is considered even today “a civil engineering marvel.” During this period, the people experienced three great droughts, the third of which was severe and drove them out of the area. At the end of the period, the conflict over water became great, and in places like Hovenweep National Monument, ancient guard towers near valuable water sources show that water protection and enforcement was extremely important to the Puebloans.

Justice Hobbs also recounted John Wesley Powell’s contributions as an explorer and as a thinker of the West’s future. Powell saw that the area west of the Hundredth Meridian was fundamentally different from the lands to the east. This was the line that demarcated where average precipitation was less than twenty inches per year. Powell knew water availability would be the crucial issue in the West, especially if the land were to be used for agriculture. Powell presented many ideas to the United States government on how best to organize the region. But contrary to public opinion today, Justice Hobbs said that Powell did not actually advocate for watershed based state formation. Instead, Powell proposed river districts that existed within a state or across state lines, where members could decide among themselves on how best to manage their resource and settle disputes. Justice Hobbs pointed out that in many ways, Colorado enacted this exact idea in creating the state’s seven water districts. Each district comprises a single major watershed and each has both its own water court to adjudicate rights and resolve disputes, as well as a division engineer to enforce those rights. In terms of water administration this is unique in the West because most states use a state agency to oversee individual water rights.

Justice Hobbs also explained that Colorado’s water law system is unique to the region and is historically interesting. Colorado, like many other Western states, employs a form of water law called the Prior Appropriation Doctrine, which he summarized as “first in time in settling, first in line in times of drought.” This system abolished the common law Riparian system, which American courts brought over from England and used throughout the eastern United States. The Riparian system allowed only those landowners abutting the stream banks to divert its water for non-consumptive uses only. In this system, downstream users also have correlative rights to those upstream. Colorado chose to reject this system because of the aridity of the West and the fact that few homesteaders lived along streams. Justice Hobbs explained the rejection came from the fear that corporations could buy up the land along a water source and control its use. In his opinion, the Prior Appropriation system represents a “radical agrarian anti-monopoly doctrine based on agricultural use.”

Another significant point in the history of Colorado water law that Justice Hobbs discussed came in 1922 with the Colorado River Compact. The deal divided the waters of the Colorado between the seven states laying claim to its waters. Specifically, the compact divided the water between the Upper Basin and the Lower Basin, allocating 75 million acre-feet to the Lower Basin over an averaged ten-year period, 1.5 million acre-feet to Mexico, and the rest for use by the Upper Basin states. Colorado and the other Upper Basin states subsequently decided how to split up their allotment in 1948 with the Upper Colorado River Compact. Colorado secured fifty-one percent of the Upper Basin allocation. Justice Hobbs noted that in 1922 the states were assuming a yearly flow of more than 16 million acre-feet. The problem, he said, was that this amount overestimated water availability, especially in drought years. In fact, as recently as 1902, there were only 9.5 million acre-feet of water in the basin, something that the Upper Colorado River Compact drafters knew. This deal, therefore paved the way for storage to be an integral part of water in the West—a trend that continues today.

Justice Hobbs concluded his presentation by answering participant questions about the failure of recent water law legislation, including Senate Bill 23 in 2014 and House Bill 1259 earlier this spring. Justice Hobbs closed by saying that he has seen a lot of changes in Colorado water law over the course of his career and that he was excited for the changes that the future generation of professionals working in water might encounter.

The featured image is from John Wesley Powell’s second expedition down the Colorado River.  The photo is titled “The Boats in Marble Canyon” and is from about 1872.  This image is part of the public domain.


Denver, Colorado                                                                                               October 26, 2015

Members of the Colorado Supreme Court’s Water Court Committee focused their discussions on ways to improve efficiency and consistency among the State’s seven water divisions. Supreme Court Justice Allison Eid, chair of the committee, presided over the meeting. A permanent standing committee since 2009, the Water Court Committee works to “[identify] possible ways through rule and/or statutory change to achieve efficiencies in water court cases while still protecting quality outcomes, and [ensuring] the highest level of competence in water court participants,” according to the water court’s website.

For two hours, members engaged in a roundtable discussion of potential issues regarding water court procedures and rules to see if they might recommend any changes to the State’s seven water court judges and the Colorado Supreme Court. Among the topics were alternative dispute resolution, the role of the State and Division engineers in the early stages of a case, abandonment, and the duty to preserve evidence.

The Committee first addressed the idea that clients want to be more involved in the early stages of the water court process. Jennifer Ashworth, Project Engineer and co-founder of White Sands Water Engineers, Inc., said that some clients have expressed the desire to attend expert meetings, which are currently a series of confidential meetings in which engineers discuss their findings, agreements, and disagreements. Committee members – including David Robbins, president and co-founder of Hill & Robbins, P.C., and James Witwer, shareholder at Trout, Raley, Montaño, Witwer & Freeman, P.C. – pointed out that expert meetings are critical points at which engineers can work through dense technical issues among themselves and then report to the clients and their attorneys.

Committee members concluded that expert meetings may not be the place for clients to get involved, because settlement discussions could involve broader considerations about settling the case. They suggested there might be some point early in the process, perhaps an evaluation or mediation stage, where clients, attorneys, and experts could meet and attempt to resolve issues. John Cowan, Water Division One Water Referee, said judges already have the power to order mediation, but adding an express water court rule change for this may be helpful. At the request of Justice Eid, several members volunteered to study and report back on encouraging alternative dispute resolution in water cases.

Justice Gregory Hobbs, the Committee’s Chair until his retirement from the Supreme Court at the end of August of 2015, stated that if and when the State Engineer becomes a party in a water court case is another issue of concern. He suggested that the referee process might work better if the State and Division Engineers can consult in a non-adversarial way until it becomes clear that a water court trial may be necessary. Committee members discussed the issue that not every water division handles the referee process in the same way. State Engineer Dick Wolfe suggested that it may be helpful to hear from the water judges and referees about making the consultation process more consistent among the divisions. Justice Eid designated a sub-committee to look into this.

Next, Holly Kirsner Strablizky, Water Division Five Water Referee, suggested that there is confusion in the water law community about how abandonment cases should proceed. Particularly, she said that there is some misunderstanding among attorneys and judges on timelines and exactly what should happen when an abandonment action goes before a court. Justice Eid assigned Ms. Kirsner Strablizky and other members to study and report on this topic.

Mr. Witwer then presented to the Committee the issue of evidence preservation. Specifically, Mr. Witwer pointed out that the duration and means of the duty to preserve is unclear, especially in the electronic age and with regard to conditional water rights. He noted that preservation is especially important in water law cases because such cases can span years or even decades. He said it is particularly difficult to know exactly what information a client must retain and how long that client must keep the information to avoid spoliation issues at later proceedings. Mr. Witwer volunteered to head the subcommittee that will look into the issue.

Mr. Witwer also raised the concern that some cases involving specific disputes between individual parties go before the Supreme Court unnoticed, even though they may significantly impact water law in the state. He noted that this prevents participation by amicus curiae briefs. He suggested creating some informational system that would alert the water community more broadly.

Committee members also decided to focus on updating Continuing Legal Education water courses. At the meeting’s end, the Committee agreed to meet again in April and receive the reports from the subcommittees at that time.

The University of Denver Water Law Review would like to thank Retired Justice Gregory Hobbs for his help in preparing this piece.

The featured image is of the Colorado Supreme Court courtroom.  This photo belongs to Jeffrey Beall and is licensed under the Creative Commons Attribution 3.0 Unported License.


WATER AND ENERGY: COOLING WATER WITHDRAWALS AND LONG–TERM POLLUTION FROM FOSSIL FUEL EXTRACTION AND COMBUSTION

Denver, Colorado June 4, 2015

At the American Bar Association’s 33rd Annual Water Law Conference, Sherina Maye, the Commissioner of the Illinois Commerce Commission, moderated the first panel, which featured three speakers addressing the connections between energy production, water pollution, and consumptive use.

The first speaker was Charles D. Case, a partner at Hunton & Williams LLP. Mr. Case spoke about electric power generation, the management of coal ash, rules recently put in place in North Carolina, and rules implemented nationally by the U.S. Environmental Protection Agency (“EPA”). To familiarize the audience with the topic, he listed common elements of coal ash, or coal combustion residue (“CCR”). CCR is comprised of fly ash, typically captured by an electrostatic precipitator atop a coal furnace; bottom ash; slag; flue gas desulfurization residue, a byproduct of systems that remove the sulfur-oxygen compounds from power plant exhaust that otherwise would contribute to acid rain; and selective catalytic scrubber reduction residue.

Next, Mr. Case gave a brief history of coal use for electric power generation. He noted that coal production nearly doubled between 1970 and 1990, when the United States produced nearly one billion tons of coal. Mr. Case explained that coal use only recently started to decline due to increased alternative fuels use, such as natural gas, and increasing penetration of renewables in the United States’ energy mix. United States production of CCR peaked between 123 and 131 million metric tons in 2007 and 2008.

Mr. Case then gave a procedural overview of the history of the EPA’s CCR assessment program, which began in 2009. That program published its final rule (“rule”) on April 17, 2015. The rule treats CCR as a solid waste under the Resource Conservation and Recovery Act (“RCRA”) for the first time. The rule classifies CCR as non-hazardous waste under Subtitle D of RCRA, but the EPA has reserved the right to revisit that classification if it determines that CCR is hazardous. Mr. Case asserted that the possibility of reclassification has caused industry uncertainty, which may lead the U.S. Congress to address the issue legislatively.

Mr. Case explained how the rule addresses the leaching of contaminants into groundwater, release of contaminants into the air as dust, and the possible catastrophic failure of surface ash impoundments, but exempts beneficial use and re-use. He emphasized the importance of this exemption, because CCR is widely used as a concrete admixture.

Mr. Case continued to describe that the rule is self-enforcing through citizen suits or state action, yet contains no permitting requirements. The requirements include location restrictions relative to groundwater sources, wetlands, and seismic zones, as well as, liner and structural integrity criteria. The rule also contains specific requirements for groundwater monitoring and provisions for corrective action to remediate groundwater contamination. Facilities that do not comply with the rule regarding location restrictions, groundwater contamination, or structural integrity requirements must close within three years.

Mr. Case concluded his remarks by discussing the North Carolina coal ash management statute, commonly called CAMA, passed in 2014. He detailed some of the differences between the EPA rule and CAMA. For example, CAMA does not regulate landfills, but directly addresses seepage. CAMA also prescribes facility closure based on risk, and regulates beneficial use.

The next speaker was Frank Holleman, a Senior Attorney at the Southern Environmental Law Center (“SELC”). Mr. Holleman gave a talk titled, “Cleaning up the South: The Legacy of Coal Ash.” He began by stating that he considers the current methods of storing coal ash to be “dangerous, risky . . . and illegal.” To illustrate his point, he asked the audience to imagine that a long-time client came into the office and said he wanted to dig a big, unlined pit, on some property next to a major river, and fill it with millions of tons of industrial waste containing arsenic, uranium, radon, lead, molybdenum, and hexavalent chromium. The client would then fill the pit with water. To protect drinking water, the client would build a leaky earthen dyke. Mr. Holleman asserted that no lawyer would allow the client to make such a pit, but contended that is precisely what utilities in the southeast have been doing for years.

Mr. Holleman showed a map with sixty-one coal ash facilities in the southeast United States, twenty-five of which the SELC is currently suing. Mr. Holleman pointed out that most ash facilities are on major rivers. He discussed SELC’s strategy, which employed South Carolinian law to bring suit against coal ash impoundment operators forcing clean up actions. SELC then moved to North Carolina where it discovered every site in the state violated state law, federal law, or both.

Mr. Holleman discussed two high-profile coal ash spills, one at the Tennessee Valley Authority’s (“TVA”) Kingston site in Tennessee, and another at Duke Energy’s Dan River site in North Carolina. Both spills helped increase public awareness and action. Due to the increased publicity, the spills resulted in criminal charges filed against TVA and Duke Energy, the CAMA statute enacted in North Carolina, and all utilities in South Carolina agreeing to clean up their ash lagoons.

Mr. Holleman concluded with his view that the operation of an unlined coal ash pit can be criminal, even if the regulator permitted the activity. He stated that the EPA CCR rule is not a safe harbor. Rather, it is a bare minimum because an operator may still be open to criminal or civil liability even after achieving compliance.

The final speaker of the panel was Kelly Love, a Senior Attorney with the TVA. Her talk was titled, “River Management: Balancing Multiple Uses to Create Value.” Ms. Love gave a detailed talk of the design of power plant intakes to reduce impingement and entrainment of aquatic creatures as required by Section 316(b) of the Clean Water Act. She discussed various technology options, such as reducing the intake flow by implementing closed-loop cooling, exclusion through low-velocity screens, or using traveling screens that collect fish and return them to the river. These technology options have their trade-offs; for instance, closed-cycle cooling is low–use, but high consumption, because there is no return flow to the river.

The moderator, Commissioner Maye, asked the panel questions to conclude the session. The first went to Ms. Love on the impact of Section 316(b). Ms. Love replied she thought the overall impact would be low because of the variety of technology options available other than closed-loop cooling. Mr. Case added that Section 316(b) has site-specific provisions to balance fish impacts with increased water usage. Commissioner Maye then asked Mr. Holleman and Mr. Case about a coal ash lagoon operator’s potential criminal exposure. Mr. Case responded that most industrial activities have some criminal and civil liability if they are done improperly. He disagreed with Mr. Holleman’s view that operation of a coal ash pit is independntly illegal. Mr. Holleman responded by stating that almost every site he has seen is not necessarily criminally operated, but is at least civilly illegal. He said he had seen some seepages clearly visible from Google Earth, and that a knowing or negligent violation of the Clean Water Act is a criminal offense.

A final questioner asked whether there was a risk of contaminant leaching from concrete made of ash. The panel confirmed, based on EPA studies, leaching from concrete is very low. Mr. Holleman said that beneficial re-use of ash has to be managed in ways that do not backfire on the industry, for example, coal ash re-use in agriculture. Mr. Holleman warned that agricultural re-use would be inconsistent with the growing business of many grocery stores in natural and organic products. With that, Commissioner Maye thanked the speakers and closed the session.

The featured image is the American Bar Association image and is part of the public domain.