Tension over declining water rights has been rising in Nevada’s Diamond Valley almost as fast as the water table has been falling. Some believe a new water-market approach will finally solve the valley’s troubled water supply. But will it work?

The Diamond Valley of central Nevada has been over-appropriated since the 1960s. In 2014, a rancher with the most senior rights holder in the valley initiated legal action to halt pumping for junior irrigators. Alfalfa farmers, who use about two hundred irrigator systems to produce 120,000 tons of hay every year, have responded with furor over the suit—and have even been blamed for illicit cattle killings at the ranch. In 2015, water right wrangling culminated in the state engineer declaring the basin a Critical Management Area, requiring water-rights holders to develop a groundwater management plan or face the mandatory curtailment of pumping.

In response, researchers from Duke University Nicholas School of Environment and Eureka County officials have developed a novel water market scheme in which traditional water rights will be divided up into shares for barter. Researchers said they imported many of their proposed ideas for Diamond Valley from Australia. The plan, which is currently under consideration by the state engineer, proposes moving Diamond Valley away from the traditional prior appropriation model (and its central tenet of seniority) in favor of a system based on tradable water “shares.” Researchers and supporters of this approach—including many local farmers—believe that a water market will ease tension among water users in the valley as well as help replenish an over-appropriated basin. While the plan faces numerous logistical and legal hurdles before implementation, many across the drought-ridden West are nevertheless watching how things progress in the Diamond Valley to see if this type of water market can offer new solutions for an age-old problem.

What is a water market?

Before analyzing the details of the Diamond Valley plan, it is first necessary to discuss the basics of water markets in the West. All prior appropriation states have at least some form of water market—that is that common law or statutory legal framework allows a water right to be sold from one person to another. Most of these transfers are permanent; however, some forms of water markets allow for a more temporary trading. The process for transferring water rights under this system can be expensive, bureaucratic, and risky. Water markets, like the one proposed for Diamond Valley, attempt to improve efficiency and flexibility through commodification, which refers to the “unbundling” of water rights into its component parts: water and property divided into separate interests. Water users can then buy and sell these unbundled water rights as a fungible commodity.

The commodification of water resources is not a new invention, and not all commodification schemes are water markets with a profit motive. Many water commodification systems are already in use in the American West, such as mutual ditch companies, which are non-profit corporations formed to furnish water to shareholders. A mutual ditch company stores and transports irrigation water for use by its shareholders in return for payment of assessments for operating costs.

Another type commodity scheme is a water bank, which is a tool for leasing water for a limited period on a voluntary basis between water rights holders and users. It provides temporary transfers of water entitlements based on how much and when a water user needs more water without a permanent change in water rights. Several states have experimented with the possibilities of a water bank. For example, Colorado implemented one on the Arkansas River in the mid-2000s, however no transactions have occurred.

Other states have experimented with commodification in large-scale water projects. Farmers in California’s Palo Verde Valley have entered into an agreement to lease a portion of their water with the Metropolitan Water District, the water agency that serves Los Angeles, San Diego, and much of the rest of urban Southern California. The model seeks to protect farmers even from their own financial temptation. In addition to an up-front payment of $3160 an acre, the agency pays them eight-hundred dollars an acre for fallowing portions of their farms each year, and has invested six million dollars into the community.

Another example of water marketing is the Colorado-Big Thompson (C-BT) project. The C-BT project provides supplemental water to municipalities and irrigated farms in Northern Colorado through tradable C-BT units. Each unit entitles the owner to a pro-rata portion of the project’s water supply. Transfers of C-BT units are not subject to water court review, and may be accomplished easier than a traditional transfer subject to review by the state water court system, where individual litigation and review may take years. As a result, real estate developers often purchase C-BT units to support new development projects in Northern Colorado.

How will Diamond Valley’s Water Market Work?

Nevada water law, like most western water regimes, is based on the prior appropriation system. In prior appropriation, seniority governs allocation and the oldest water rights are preserved at the expense of the more junior rights in times of shortage. In a stark departure from prior appropriation, the Diamond Valley plan is proposing that all water rights holders in the valley become shareholders in a total allocation of both ground and surface water. The plan calls for implementation of four changes: (1) “unbundling” of present water rights into shares and allocations for management of “long- and short-term interests” and third party impacts; (2) development and implementation of “sharing plans” to sustainable use; (3) appointment of a board comprised of experts, in partnership with the state engineer, to “prepare, plans, and oversee implementation of the new system”; and (4) establishment of registers and metering systems to “finance private investment and increase the speed and transparency of water rights and volumes trades.”

In their proposal for Diamond Valley, researchers explain:

“In an unbundled system, the component of a water right that defines the long-term interest is defined as a share. The water that is available for use within a time period (e.g., year or season) is then defined as a seasonal allocation. A share can be thought of as a perpetual entitlement to a portion of any water that is allocated for use. A seasonal allocation can be thought of as an acre foot of water available in a particular season. In an unbundled system, this acre foot can be used, traded, or, with adjustment for losses, saved for use in a subsequent season. The number of seasonal allocations a person receives is a function of the number of shares he or she holds in that particular water resource. When an allocation is made, it is recorded in a water account, but not recorded on a share certificate.”

To unbundle the existing water rights, the plan calls for a board—appointed by Eureka County officials—to determine the total amount of water available and then make allocations each water year in proportion to the number of shares held before the start of the that irrigation season.

In order to transition to the new system, the plan envisions that the board would initially assign shares on a basis of one share per acre-inch of the original right and then applying a formula—a so-called “seniority coefficient”—to account for seniority so that those giving up more senior water rights would get more shares in return. Valley shareholders can then buy and sell allocations with county water officials tracking usage through water meters. The plan also proposes that the board annually reduce allocations per share for two to three decades until the water table of the aquifer stabilizes.

Proponents of the water market argue that the ability to trade shares will reduce risk of abandonment or waste. Under prior appropriation’s beneficial use doctrine, farmers were forced to use their water or risk legal abandonment and forfeiture of their water right. However, under the market’s scheme, farmers will be able to get money for their surplus water by selling their allocations to others who need more. This would increase efficiency basin-wide as it would take away the need to use extra water for the sake of preventing abandonment.

What legal challenges will Diamond Valley need to overcome?

One significant legal issue in Diamond Valley will be how the water market can address the anti-speculation doctrine. This doctrine, codified under Nevada Revised Statute 533.040,

expressly prohibits a water right from being transferred to parties who do not beneficially use the water. The anti-speculation doctrine seeks to prevent “hoarding” of water by non-users, which could distort supply for farmers and artificially inflate prices. In a traditional prior appropriation system, beneficial use staves off speculation, but in a water market, many worry that ‘water barons’ might stockpile shares to drive up prices, making it unaffordable.

In response, academic proponents of water markets have argued that water rights are usufructuary, and that a water right different from ownership of the water itself. Water’s usufructuary nature makes it a semi-privatized—yet community-based—resource, and not an ordinary commodity. For instance, as compared to oil, wheat, or some other traditional commodity, private interests own the product and private entities buy and sell that product. However, water will still be the property of the public, but profit will now be available through trading that public product. By avoiding full privatization of the resources, water-market proponents argue that speculators will avoid water-right investment because of the risk of government or community regulation, thus preventing unwanted water monopolies.

Another problem has been the “buy and dry” of rural communities over the past few decades where agricultural-to-municipal water transfers have left local farming communities economically strained. In the buy-and-dry scenario, a rapidly growing municipality upstream buys senior water rights from rural farmers downstream, re-diverting it elsewhere. With no water left to farm the land, the fields—and the towns with less of a tax base to rely on—begin to dry up, further depressing the local community. One of the most striking examples of this phenomenon is Crowley County, Colorado. Similarly, in California’s Palos Verdes Valley, farmers have filed a lawsuit alleging that the Metropolitan Water District (“MWD”) is creating a water bank out of their fallowed fields and forcing the traditional farming culture out of the area. The farmers argue the MWD is using monetary pressure to reduce water use on their land, so that saved water can then be shipped to coastal, Southern California cities. In the case of Diamond Valley, what would prevent outside entities from buying up shares and exporting allocations out of the valley? Proponents have argued that, as compared to Crowley and Palos Verdes’ agreements with far off urban areas, shares in this system will be divvied up among all irrigators in the valley. To cope with this, the plan proposes charging “exit fees” for water users who want to permanently transfer water out of the system. Further, the yearly reduction to stable levels may make water right investment, coupled with the expense of transportation and infrastructure development, impracticable to a “high and dry” scenario because outside interests will not be able to rely on fallowing fields as a means of acquiring water.

A final issue will be how any trade or sale of shares (and the resulting change of use of that water) would protect any existing rights from injury—the no-injury standard will need to be addressed. Nevada requires that the state engineer review water right transfer applications to ensure the transfer will “not conflict with existing rights.” This rule creates enormous disincentives to transfer by driving up the transaction costs of any exchange, typically requiring a fact-specific, time-consuming, and expensive inquiry into return flows, irrigation ratio efficiencies, and consumptive use patterns to predict the impacts of a proposed transfer. However, in the case of Diamond Valley, injury issues would likely not surface under the proposed plan because the trading of shares/allocations around the valley would not affect any other shareholder because they have their own independent allocation of water, especially since most irrigators rely on pumping, not on surface flows. Of course, this assumes that proper enforcement exists and that all shareholders follow the rules.


In addition to the implementation challenges described above, plan proponents also have to get buy-in from the state and local irrigators. The final groundwater plan requires approval by half of the irrigators and the state engineer. And even if approved, the plan could also face challenges in court as well. Nevertheless, the Diamond Valley’s proposed water market represents either an exciting opportunity for innovation or another failed challenge to the hegemony of the prior appropriation doctrine in western states. While a water market includes the possibility of many solutions, its implementation stands as a direct challenge to many century-old standards of water law.

Ryan Hull

Image: View north along Nevada State Route 278 near Eureka Airport in Diamond Valley. Wikimedia user Famartin, Creative Commons.




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Hurricane Harvey brought more than fifty inches of rain that submerged thirty percent of Harris County, Texas. A storm of this caliber would have devastating impacts on any city, however, Houston’s aging infrastructure and expansive areas of impermeable pavement left it uniquely exposed. The city of Houston is situated only fifty feet above sea level on old swampland, forty miles from the coast.

The city’s stormwater drainage system is composed primarily of a series of natural bayous (slow moving rivers) and man-made channels that divert runoff out of the city and into the Galveston Bay. Many of the city’s bayous are inadequate to handle normal rainfall, much less a major hurricane. “The main bayou through downtown, Buffalo Bayou, is pretty much still a dirt mud channel like you would have seen 100 years ago,” says U.S. Geological Survey hydrologist Jeff East.

Additionally, Houston’s lack of zoning regulations further exacerbated the cities flood vulnerability. Houston, a rapidly growing city of nearly 2.4 million residents, does not require builders to use flood mitigation techniques such as permeable pavement and green areas to better absorb rainwater, or retention ponds for runoff. As a result, the city has expansive areas or pavement and impervious surfaces “that make it extremely difficult for the water to drain into the soil. Instead, it runs into the bayous and, in this case, into people’s homes,” says Sam Brody, a professor at Texas A&M, Galveston.

In response to the changing weather patterns across the country, cities such as Chicago have turned to green infrastructure as a way to work alongside the traditional infrastructure to more effectively manage stormwater under these conditions.

Need for a New System

Chicago has the largest wastewater capture quarry, water treatment facility, and water treatment plant in the world. However, Chicago still continues to experience significant flooding from stormwater runoff. In the past five years, there have been approximately 181,000 claims totaling over $753 million in flood-related property damage.

Brenna Berman, Chicago’s chief information officer, says that the city is, “still getting the same amount of rain annually that we got [in the past] but it’s coming at a different rate than it once did. However, we’re getting rain more quickly, rain for a shorter period of time, most likely due to global warming.” Therefore, the same solution does not work the same in every location.

A Greener Solution?

In response, Chicago has been installing green infrastructure to hold and treat stormwater. Currently, Chicago is in the midst of a five-year, $50-million plan towards creating ten million gallons of stormwater storage in hopes of reducing stormwater runoff by up to 250 million gallons per year. Permeable pavement has been installed in bike lanes and alleys, which allows for water to be soaked into the ground rather than flowing into the sewer system. Additionally, there are bioswales, tree pits, and infiltration planters, which are areas of vegetation and soil collecting and filtering stormwater that prevent flooding and allow cleaner water to enter the sewer system. Although there are a number of green infrastructure solutions available, there is not much data available regarding which types work best and how well they are working. That’s where City Digital comes in.

City Digital, a partnership of companies based at University of Illinois’ UI LABS, heads the pilot project which combines sensors and cloud computing as an innovative solution to stormwater runoff. The project aims to develop the next generation of sensing and monitoring tools for green stormwater infrastructure. The partnership is comprised of large, multinational companies including Microsoft, ComEd, Siemens, Accenture, Tyco, and HBK Engineering, as well as academic institutions such as the University of Illinois, Illinois Institute of Technology, Northwestern University, and Argonne National Laboratory.

These companies, universities, and the City of Chicago are collaborating together to identify and solve large-scale infrastructure challenges in order to develop solutions that can be broadly commercialized.

How it Works

Beginning in August of 2016, City Digital has been installing low cost sensors and innovative software tools throughout the city in order to monitor and evaluate the city’s current green infrastructure.

The ultimate goal of this smart green infrastructure monitoring is to create a system of sensors that combines weather information with surface and groundwater monitoring to evaluate the amount of water present, whether or not it is entering the green infrastructure, and what the water undergoes once it enters the infrastructure. Additionally, the system will measure the pH levels and the temperature of the water. Above the ground, the sensors work to monitor the weather conditions, such as precipitation amounts and air pressure levels. Below ground, the sensors monitor soil moisture, chemical absorption rates, and water quality to determine if the infrastructure is managing the water as intended.

The data collected by the sensors is then communicated via cellular network into an analytics platform. There, the effectiveness of the various green-infrastructures can be monitored in real time. As of this past spring, there are six sites throughout Chicago that are transmitting more than 20,000 streams of real time data that translate into site specific recommendations for green infrastructure being built in the future.

Ultimately, the purpose is not only to determine if the green-infrastructure is working, but where and when certain types of green infrastructure are most effective. Specifically, whether the green infrastructure is preventing rainwater from entering the sewer system and what green designs work best for different types of rain and lengths of the storm.

Supporters of the pilot project urge that smart green infrastructure monitoring can be a low-cost alternative to traditional monitoring. Joshua Peschel, one of the key players of the Chicago pilot project says, “the traditional way of monitoring stormwater infrastructure, if done at all, is with expensive measurements that are often very sparse in space and time. This project seeks to fill the data gaps by adding unique measurement techniques and intelligence to these new green streets in Chicago.”

By providing innovative, low cost monitoring for green infrastructure, the pilot project is changing the way not only Chicago, but cities all over the world address stormwater issues. The pilot project is designed to create a pathway to commercialization so that successful pilots can easily and directly be extended throughout other areas of Chicago and even further to other cities both nationally and globally.

A Nationwide Concern

Pollution generated by urban stormwater runoff is not limited to Chicago. According to Larry Levine, a senior attorney in the Natural Resource Defense Council’s water program, “Stormwater runoff is one of the largest water pollution issues facing the U.S. today.” While Chicago’s stormwater project stemmed from concerns regarding flooding, other cities across the country are turning to green infrastructure to solve serious pollution issues that are destroying important natural waterways.

In Seattle, Washington the Green Duwamish River faces many threats to its health and sustainability due to pollution from stormwater runoff. In the Puget Sound region bordering the river, like many other regions in the U.S., was largely developed without stormwater controls due to lack of information and understanding of the harmful effects of polluted runoff. As a result, polluted runoff threatens the salmon, economy, and health of the communities that depend on the viability of the Green Duwamish River. Specifically, uncontrolled stormwater runoff from surrounding developed lands can cause flooding, erosion, and toxic contamination. In response, King County, who manages the area, is aiming to implement a similar green infrastructure to Chicago’s stormwater pilot project.

Other cities across the country such as Philadelphia, New York, and Portland have also been implementing stormwater projects over the past few years with federal funding. Further, Levine notes that these stormwater runoff control projects address the key issue of nonpoint source pollution (“NPS”) in the Clean Water Act. While it is relatively straightforward to regulate point source polluters such as a manufacturer releasing chemicals into a river, it is increasingly difficult and costly to regulate NPS because it comes from many diffuse sources.

States report that NPS is the most significant single source of water pollution in the country. However, with rise of green infrastructure and stormwater control programs across the country, a much-needed remedy to NPS could be on the horizon.


Although the likelihood of a storm like Hurricane Harvey hitting Houston again is slim, what will continue to plague and pose the most severe threat to the area is stormwater. Without a change in infrastructure, as seen in the Chicago Pilot, the city will continue to face devastating impacts from average rainwater runoff.

Alicia Garcia

Image: A “green rooftop” – An example of green infrastructure that can help naturally divert, collect, and filter stormwater. Pixabay user StockSnap, Creative Commons. Chicago Storm Water Pilot Project


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The popularity of craft beer has been steadily increasing as more people want to support small, local businesses and desire a more complex tasting beer. As demand for craft beer has increased, so has supply. By the end of 2016, there were over 5300 craft breweries in America, with another 2000 in the planning stages—a seventeen percent increase from 2015. The Brewers Association categorizes an American craft brewery as “small” if less than six million barrels a year, “independent” if less than twenty-five percent of the brewery is owned or controlled by a non-craft brewer industry member, or “traditional if the majority of beer derives flavor from traditional brewing ingredients and their fermentation).

While beer lovers the world over can appreciate a good craft beer, behind the industry lies a slew of adverse environmental consequences. One of the most pressing environmental issues craft breweries are facing is the processing and disposal of wastewater. When brewery wastewater is dumped into public waters without being treated, it can cause plant, algae, and bacteria growth, which all lead to reduced oxygen levels and can eventually lead to the eutrophication of a body of water, making it uninhabitable to most aquatic life. This is mostly an effect of the solid waste in brewery wastewater – including spent grains, yeast, and hops – that can weigh up to fifty pounds per barrel of beer produced.

Production and Regulation

Water is the most essential part of the brewing process. Not only does water make up about ninety percent of the actual finished product, it is used in every part of the production process from growing hops to cleaning the equipment after a brew. As a result, one barrel of beer takes about seven barrels of water to create using traditional methods. Accordingly, breweries use an enormous amount of water. The United States produces more than twenty million barrels of beer a year, and although craft breweries only contribute to twenty percent of total U.S. production, the craft brewing industry can potentially place a huge strain on water supplies. However, craft breweries have shown themselves to be sustainably minded and oriented toward conservation. Many craft brewers have been able to decrease the amount of water used in production from seven barrels to just three per barrel of beer.

The Clean Water Act (“CWA”) regulates the discharging of all pollutants discharged into United States waters. The CWA has specific requirements for discharging industrial waste into publically-owned water treatment facilities. Unlike most domestic wastewater, brewery wastewater is high in sugar, alcohol, solids, and temperature which municipal water treatment plants were not designed to process. For this reason, breweries are often required to pre-treat their wastewater before sending it to municipal treatment plants. Violating the Clean Water Act can lead to enormous fines, which can cripple a craft brewery as most are relatively small businesses. Yuengling, a major craft brewery out of Pennsylvania, was recently charged with allegedly violating the CWA by the Department of Justice for not pre-treating its wastewater. Although both parties entered into a consent decree—a settlement agreement where the defendant does not admit liability—the brewery still had to pay 2.8 million dollars in penalties for violating the CWA as part of the settlement. Aside from the CWA, municipal water regulations may also affect craft breweries by limiting certain types of pollution such as: biochemical oxygen demand (BOD), chemical oxygen demand (COD), total suspended solids (TSS), total dissolve solids (TDS), and pH. Such local regulations can also carry huge fines if violated.

Wastewater Treatment Advances

Managing wastewater is one effective way that craft breweries have found to reduce overall water consumption – saving water and simultaneously reducing costs of operations. Bear Republic Brewing Company out of Sonoma, California has installed a bio-electrically enhanced wastewater treatment mechanism called EcoVolt in response to the crippling drought that California breweries are facing. EcoVolt is unique as the first and only industrial-scale, bio-electrically enhanced treatment system. The system introduces electrically active organisms that eliminate up to ninety percent of the biological oxygen demand—a pollutant. The system also converts carbon dioxide into biogas—mixtures of gases—hat can be used to generate heat and electricity for Bear Republic’s production process. EcoVolt allows Bear Republic to reuse around twenty-five percent of its wastewater, which cuts down the amount of water used for production to 3.5 barrels per barrel of beer instead of the traditional seven. As an added benefit, the system cuts Bear Republics’ baseload electricity use in half. Savings in both water and energy use have cut the brewery’s operational costs by hundreds of thousands of dollars annually. As Bear Republic has proven, installing new wastewater treatment systems is an effective way to save water and simultaneously reduce costs of operations in the long run. However, it is often too expensive for smaller microbreweries to install.

New Belgium Brewing Company out of Fort Collins, Colorado utilizes a different treatment process than Bear Republic. New Belgium uses microbes to consume residual biomass leftover from the brewing process. Aside from cleaning the water, the microbes also produce methane that is collected and turned into electricity that powers New Belgium’s production process. After being exposed to the microbes, the water is sent through an aerobic digester, which breaks down any remaining organic matter through the use of oxygen. New Belgium claims that its wastewater comes out so clean after the aerobic digestion process that the brewery could legally discharge it directly into the nearest river if it so wished.

As of now, wastewater is generally banned for human consumption, however Clean Water Services in Oregon is trying to change that. Oregon regulations have long allowed treated wastewater to be used for the industrial processes of the brewing process, but not as a part of the final product to be consumed. Clean Water Services petitioned the state for permission to use wastewater that has been treated with the company’s “high-purity” treatment system in beer, and were granted limited permission to do so. As a test run, Clean Water Services gave its treated wastewater to the Oregon Brew Crew, whose members made small batches of beer for a sustainable water brewing challenge. The company has recently installed its “high-purity” system at the four wastewater treatment plants it owns and operates in the Portland area, and the purity of the water exceeds even the most stringent standards for water quality. Clean Water Services is so confident in the effectiveness of its treatment system that it claims it can turn sewage into drinking water.


Although craft brewing is a water-intensive process, the industry has fortunately proven itself to be highly water conscious and dedicated to conservation. Most craft breweries are installing advanced wastewater treatment systems to offset both costs of production and costs to the environment. Although such options still remain relatively expensive, advanced wastewater treatments have proven to be a financially strategic option for those craft breweries that can afford it. Furthermore, such treatment options have the potential to cut a craft brewery’s water use in half, and in places where it may soon be legal to include wastewater in the finished product, water use could potentially be cut even further. Especially in the West, where drought periodically plagues the land, it is important that these advances in wastewater treatment continue to proliferate.

Jeremy Frankel

Image: Craft Beer Sampler. Flickr user QuinnDombrowski, Creative Commons.



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RJ Alexander, Sustainable Craft Brewing: The Legal Challenges, TriplePundit (June 6, 2012), http://www.triplepundit.com/2012/06/legal-issues-in-beer-brewing.



The highly-anticipated EPA study “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States” (“study”) released in December 2016, sent shockwaves through media outlets due to a change in the language of the study’s major finding from the draft version that emerged in June 2015. The 2015 draft stated that the EPA “did not find evidence that” fracking mechanisms “have led to widespread, systematic impacts on drinking water in the United States.” In contrast, the new study revealed conclusions that describe “how activities in the hydraulic fracturing water cycle can impact—and have impacted—drinking water resources and the factors that influence the frequency and severity of those impacts.”

Because ambiguity in the study’s findings can be construed to support different sides, the study provides fuel for both anti-fracking activists and industry supporters. Nevertheless, the study also provides scientific insight into the process that can be used by state and local policy makers to create tailored regulations to mitigate potential water contamination risks. Thus far, the federal government has not passed any legislation directly addressing fracking, so much of the regulation has been left to state and local governments. Further, with the new administration’s plans to reduce the size of the EPA and roll back environmental regulation, state and local governments will likely continue to be the major source of fracking regulation.

The study provides local governments with much needed data about when risks of contamination are greatest and the factors that contribute to the occurrence and severity of contamination. Local governments can use the data to create targeted mitigation procedures and regulations to ensure that cheap energy sources can continue to be tapped while protecting valuable drinking water resources.


The Study

The goal of the EPA’s study was to assess the potential for activities in the fracking water cycled to impact the quality and quantity of drinking water, and identify factors that affect the frequency and severity of those impacts. The study broke down the fracking water cycle into five stages to examine the potential for contamination of drinking water during each stage. The stages and activities of the fracking water cycle are: (1) water acquisition; (2) chemical mixing; (3) well injection; (4) produced water handling; and (5) wastewater disposal and reuse. Each step will be summarized in turn along with policy recommendations.


Water Acquisition

Water acquisition is the first stage in the fracking process where ground water is withdrawn or surface water is transferred to make fracking fluids. The study found that fracking uses a small percentage of water relative to total water use with some notable exceptions. Notable for state and local governments, the EPA concluded that, despite fracking using a relatively small percentage of water, fracking water withdrawals can affect the quantity and quality of drinking water resources by changing the balance between other local demands. The EPA found that water management strategies could be used to reduce the frequency and severity of such impacts.

To address water acquisition concerns, local governments should explore alternative sources to be used for fracking in order to preserve freshwater resources for other uses. Incentivizing the recycling of produced water and tapping alternative resources such as brackish water to be used in the fracking process would mitigate the impact that fracking water acquisition has on local resources.


Chemical Mixing

Chemical mixing is the stage in the fracking process where water is mixed with sand, proppants, and other additives at the wellsite in preparation for injection. The EPA found that spills of fracking fluid and additives during chemical mixing have reached surface water resources in some cases and have the potential to reach ground water resources. Large volume spills have the greatest potential to reach ground water resources, and highly concentrated spills have the potential to most severely impact drinking water resources. Naturally, large volume spills have the potential to increase the frequency of impacts on drinking water, and groundwater impacts would likely be more severe than surface water impacts given that it is generally difficult to remove chemicals from groundwater resources.

Chemical mixing concerns require regulations to mitigate the potential for spills, especially when large volumes or highly concentrated mixtures are being handled. The oil and gas industry could play a major role in spill mitigation by adopting standard mixing and handling procedures.


Well Injection

Well injection is the point in the water cycle when fracking fluids are injected into a production well in order to free oil and gas molecules from the targeted rock formation. The EPA found that water in the injection stage has impacted drinking water resources due to mechanical failures that have allowed gases or liquids to move to underground drinking water resources. The study highlighted the importance of the distance of vertical separation between the targeted rock formation and drinking water resources by highlighting cases of contamination where little or no vertical separation existed between the targeted formation and drinking water resources existed.groundwater in Pavillion, Wyoming.

Geological surveying can be used to analyze whether adequate vertical separation exists between the targeted formation and drinking water resources. However, this is a limitation identified by the study because most of the geological information is proprietary to the operator and is not readily searchable by the public. The study asserts that the presence of casing, cement, and thousands of feet of rock between drinking water and the target formation can reduce the frequency or impacts during the water injection stage. However, when inadequate vertical separation exists, local governments should impose permitting requirements based on environmental impacts studies in order to mitigate instances of contamination during the well injection stage. Additionally, casing and cement integrity should be monitored before and after injection, and pressure should be monitored to ensure that the barriers did not fail during the process.


Produced Water Handling 

Produced water handling is the stage when water returns to the surface after fracking and is transported for disposal or reuse. The EPA found that spills of produced water during the water handling stage have reached groundwater and surface water resources in some cases. Like water spilled in the mixing stage, large volume spills have higher potential of reaching groundwater resources. Furthermore, the saline produced water can potentially migrate through soil into groundwater resources, leading to longer-term groundwater contamination.

As with mixing concerns, produced water handling impacts can be mitigated by enforcing standardized collection and handling procedures. Minimizing human error could greatly reduce the frequency and severity of spills while handling produced water. Also, creation of response mitigation plans for when spills do occur would reduce the severity of impact from spills.


Wastewater Disposal

The wastewater disposal and reuse stage typically involves the injection of produced water into disposal wells. Water is sometimes disposed of by using evaporation ponds and percolation pits also. Wastewater is sometimes put to beneficial uses such as irrigation if the quality is high enough, or it can be treated at water treatment facilities and discharged into surface water resources. Additionally, an increasing percentage of produced water has been reused in the fracking process. The EPA found that aboveground disposal of fracking water has impacted the groundwater and surface water in some instances, particularly where water was inadequately treated before discharge into surface water resources. Disposal in lined and unlined pits has also impacted groundwater and surface water resources, particularly because unlined pits provide a direct pathway for contaminants to reach groundwater. The EPA also noted that disposal wells have been associated with earthquakes in several states, thus reducing the availability of their use.

Each method of disposal and reuse presents unique problems that require collaboration between the industry and local governments. Increasing the availability of water treatment facilities is an attractive solution, because treated water could in turn be used for other beneficial uses. However, treatment is expensive and would likely require public and industry investment. The potential to turn produced water into useable water could help Colorado communities that have growing domestic needs as well as growing industrial needs meet their growing water demands. Funding mechanisms such as tax-exempt bonds, public improvement fees, or tax increment financing could be used get water treatment facilities built. Additionally, depending on which entity would have the legal rights to the newly cleaned water, water could be sold on the open market to help service the debt that was incurred by the entity to build the facility.



In conclusion, fracking continues to play a vital role in helping the United States achieve its energy goals. The study provides an initial roadmap of areas for local governments to target potential risks of drinking water contamination during the fracking process in a meaningful way. The study has set local governments up to create targeted mitigation procedures and regulations to ensure that cheap energy sources can continue to be tapped while protecting valuable drinking water resources.

Dalton Kelley


Envtl. Prot. Agency, Draft: Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (June 2015), https://www.epa.gov/sites/production/files/2015-06/documents/hf_es_erd_jun2015.pdf.

Coral Davenport, Reversing Course, E.P.A. Says Fracking Can Contaminate Drinking Water, The New York Times (Dec. 13, 2016),


Timothy Cama, Trump Team Plans Big Cuts at EPA, The Hill (Jan. 23, 2017, 9:57 AM),


Envtl. Prot. Agency, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (Dec. 2016), http://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=530159.


Image: A natural gas drilling rig on the Pinedale Anticline, just west of Wyoming’s Wind River Range. WikiCommons user Bureau of Land Management, Creative Commons.”

Recently, a court in India has made a dramatic decision to give rivers legal rights in an attempt to curb pollution. While India’s Supreme Court overturned the ruling as legally unsustainable in July, this continues a global trend of recognizing the rights of water sources as opposed to just those that use the water. Potentially, this trend could come stateside, offering a unique way for Native American tribes to protect waters they consider sacred.


The Rights of Rivers in India

The high court in Uttarakhand, India, where the Ganges River originates, recently granted the Ganga and Yamuna rivers and their tributaries rights as “living entities.” This gives the river and its tributaries, regarded as holy by millions of Hindus, the same rights as people, making the harming the river equivalent to harming a person. The ruling also appoints three officials to represent rivers as legal guardians. In theory, these guardians may then sue on behalf of the rivers for damages since their title gives them legal standing,

This is the court’s most recent attempt to address the pollution problem affecting rivers that supply water for forty percent of India’s population. Critics, including the courts, have called national government efforts ineffective at slowing the estimated two billion liters of waste entering the river each day. Economic development and population growth are primary culprits for this waste.

To support its decision, the Uttarakhand court cited a recent New Zealand law that also grants a river the same legal rights as people. The Whanganui iwi Tribe worked with the government to recognize the Whanganui River and grant it protections as an ancestor. Similar to the court ordained decision in India, this law also appoints legal guardians charged with protecting the river. The river has the same protections from harm as a Whanganui iwi tribal member.

In July 2017, the Supreme Court of India reversed the ruling at the urging of the local state government in Uttarakhand. The Court cited complications in implementing the law across jurisdictions, since the Ganges runs through much of India. And it noted the ruling would allow actions against the river, such as murder or wrongful death claims for people killed in floods. Despite this setback, the ruling remains an novel solution to a severe problem.


Rights of Water Sources in the U.S.

The idea of granting legal rights to inanimate objects, specifically natural resources, is not alien to the United States. There are advantages to granting a water source specific rights, discussed at length by Cristopher Stone, Professor of Law at the University of Southern California, in a 1972 journal article. Stone argued giving an entity like a river judicial standing, or a right to sue for a perceived harm, would allow for greater justice for ecological harms. For example, if a polluter dumps in a river, the only current avenue for recovery is for those non-river entities harmed by the pollution to sue. If pollution doesn’t significantly bother a downstream user, or that user is a polluter itself, that individual may not ever bring a suit and the harm would go unchecked. A river could sue for the entirety of harms suffered.

U.S. Supreme Court Justice Douglas agreed with Stone, in a dissenting opinion also authored in 1972, Sierra Club v. Morton.  His dissent cited public concern for nature and ecology, and called for those with a meaningful relation to water to be able to speak for it. He used the analogy of ships and corporations, both of which have legal personality that grants them rights in litigation. While stirring, this view has failed to gain traction in the following decades.

A likely cause for this is that it could be politically unpopular. The Blaze, a conservative U.S. news source, pushed back against the New Zealand law. Ironically, it attacks the law for one of the same reasons Stone argued natural resources should have standing. The Blaze article is concerned with giving rights to non-living entities, when New Zealand does not recognize rights for unborn children because it does not ban abortion. As Stone himself recognized, there is difficulty in getting Americans to accept an inanimate object has standing. As an example, he cites the backlash from corporate personhood, a debate that still goes on. And at a more technical level, water as a commercial commodity with multitudes of competing interests and disagreement over what constitutes “public interest” and “beneficial use” in the American West’s established prior appropriation system complicates matters.


Recognizing Sacred Sources: Difficulties and Consequences

However, there is one avenue where an attempt to give a water source standing could arise, mirroring New Zealand’s legislative approach. America could potentially work to recognize water sources as having rights as a sacred part of Native American history and culture. University of Montana Profess of Law Michelle Bryan recently explored this possibility and its challenges in a Natural Resources Journal article.

Indigenous groups across the world treat waters as sacred in several ways. Like the Maori, water sources can have spiritual significance and consider the sources as an ancestral member of the tribe. Alternatively, the waters can have ceremonial value, or locational significance to a tribe, such as for a creation story. Unfortunately, there is little legal protection for sacred water on a global scale. Tribes have few alternatives to protect what they have not legally been appropriated. These sources can be “vulnerable to diversion, consumption, contamination, and other impacts that damage the very essence of what makes them sacred.”

Recognizing sacred water rights challenges the traditional prior appropriation schematic factors of: beneficial use, diversion, seniority, abandonment, and public interest. First, sacred water currently lies outside accepted ideas of beneficial use. Second, since sacred waters’ value exists typically in place as part of the source, it is difficult to show diversion. Third, these rights would likely be subject to senior, preexisting rights. Fourth, where use is difficult to show, rights are subject to abandonment, or the idea of “use it or lose it.” Finally, many states require water uses promote public interest, which is vague, but seems to prefer economic benefit over social utility.

States sometimes have statutes that define in-stream uses like fishing rights to avoid diversion and abandonment by non-use. And several federal doctrines offer some relief for tribes. The Winters Doctrine, for example, reserves water rights for tribes that vest upon creation of the reservation, in amounts “sufficient to fulfill the purposes of the reservation.” This water reservation is independent of both beneficial use and loss by non-use. The Winters decision allows relating back water use to creation of the reservation, which can give tribes a higher seniority than water rights holders who perfected their rights after reservation creation. Unfortunately for tribes, fixing these rights can be limited to Practically Irrigable Acreage, the minimum water the tribe needs to sustain itself agriculturally.

Success stories are rare. For example, members of several Native tribes were unable to show sufficient harm to their religious practices to prevent construction of a solar energy facility that would cut off their access to the Salt Song Trails in the Southwestern United States. Professor Bryan notes the difficulties coupled with a lack of state and federal support means the stars must align to protect a water source as sacred to a tribe. And other rights holders understandably get nervous when their rights could disappear or reprioritized.

Bryan suggests negotiating treaties with tribes, like the New Zealand legislature did creating their law, that recognize sacred waters as a right inherent to the river itself and not with people. This would be a resurgence of the arguments put forward by Stone and Justice Douglas. However, negotiations would be a long process. It is also possible to protect water within our current system. Recognizing sacred waters as a legitimate public interest and beneficial use are key steps in this direction.

Bryan may underestimate the usefulness of the Winters Doctrine. She notes examples of tribes using it are becoming rarer, but perhaps this is because they haven’t fully explored its usefulness. However, at least one state has recognized an avenue to use the Winters Doctrine to preserve sacred water sources.

A 2001 Arizona Supreme Court decision involving the Gila River (In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source) recognized that the act of measuring a tribe’s minimal need by the Practicably Irrigable Acreage standard is antiquated. Instead, the court suggested several factors to consider in deciding what a tribe needs, notably including a tribe’s history and culture. If their culture considered a water source sacred, they could reserve the minimum amount needed to preserve that source, potentially a significant amount. This would allow relating the right back to creation of the reservation, jumping other appropriators with junior rights.

If you close your eyes, you can almost hear other appropriators crying “foul!” Significantly appropriating a source this way would likely be a tough pill for courts to swallow, as well. But the threat of such a possibility could bring parties to the negotiating table. Tribes could have more bargaining power to be a part of the water allocation process, representing the tribe or river.

In Arizona, Rod Lewis, a Native American attorney involved in the Gila River adjudication has gained a seat on the Central Arizona Water Conservation District Board. He will have a voice for the tribe in state water allocation. From such a position, tribes could influence state water boards to further protect sacred waters, possibly influencing a formal recognition of sacred water as a beneficial use or as part of the public interest.

Recognizing sacred rights could have had implications for the Standing Rock and Cheyenne River Sioux protesting the Dakota Access Pipeline beneath Lake Oahe in South Dakota. Perhaps if the tribes could have sued not as themselves, but on behalf of the lake, they could have showed a greater potential for damage. The Tribes may have had a better shot at getting an injunction halting the pipeline if they could argue standing on behalf of this waterway.

In sum, giving water sources legal rights has moved from a hypothetical in law journals and dissenting court opinions to real statutory and common law around the globe. Perhaps it’s time America considered weaving it into its own system.

Michael Larrick

Image: “Indian at Sacred Lake” by Eanger Irving Couse, Wikimedia Commons.



Michael Safi, Ganges and Yamuna rivers granted same legal rights as human beings, The Guardian (Mar. 21, 2017, 7:44 AM), https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings?CMP=share_btn_link.

Dr. Afshan, Save The Ganges River, Scientific India (Jul. 24, 2014), http://www.scind.org/36/Social-Issues/save-the-ganges-river.html.

Eleanor Ainge Roy, New Zealand river granted same legal rights as human being, The Guardian (Mar. 16, 2017, 12:05 AM), https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.

Cristopher D. Stone, Should Trees Have Standing? Toward Legal Rights For Natural Objects, 45 S. Calif. L. Rev. 450 (1972), available at https://isites.harvard.edu/fs/docs/icb.topic498371.files/Stone.Trees_Standing.pdf.

Sierra Club v. Morton, 405 U.S. 727, 741 (1972), available at http://caselaw.findlaw.com/us-supreme-court/405/727.html.

Justin Haskins, Crazy environmentalism: New Zealand law gives river human rights – but not unborn babies, Blaze (Mar. 18, 2017, 10:55 AM), http://www.theblaze.com/news/2017/03/18/crazy-environmentalism-new-zealand-law-gives-river-human-rights-but-not-unborn-babies/.

Michelle Bryan, Valuing Sacred Tribal Waters Within Prior Appropriation, 57 Nat. Res. J. 139 (2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2803691.

In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 35 P.3d 68 (Ariz. 2001).

Jack Newsham, Feds Blast Tribal Claim To Holy Site At Solar Power Plant, Law360 (May 9, 2016, 9:37 PM), https://www.law360.com/articles/794209/feds-blast-tribal-claim-to-holy-site-at-solar-power-plant

Dianna M. Náñez, Gila River member becomes 1st Native American to have a vote on Arizona water board, The Arizona Republic (Apr. 3, 2017, 6:02 AM), http://www.azcentral.com/story/news/local/arizona-water/2017/04/03/gila-river-member-becomes-1st-native-american-have-vote-arizona-water-board/99826278/.

Jeff Baenen, Company: Oil in pipeline under Missouri River reservoir, Assoc. Press (Mar. 27, 2017, 11:57 PM), http://bigstory.ap.org/article/9f3a519d5a2c4d9090c51b7bd8deab25/company-oil-pipeline-under-missouri-river-reservoir.

Imagine living your life in a community with little or no access to a clean and safe source of water. Now imagine this problem existing in countries across Europe. This is the reality of the Roma people in Europe. But this is a reality that is beginning to change as the European Union (“EU”), countries like Slovenia, and the Roma themselves start to fight the legal battle of making water a fundamental right for all citizens. In the pursuit of access to running water, the Roma are on their way to getting access to running water—from online petitions to constitutional amendments.

For hundreds of years, the Roma people of Europe—also derogatorily referred to as “gypsies”—have experienced tremendous discrimination. This discrimination not only still impacts their socio-economic status and education levels, but it also impairs the fulfillment of their basic needs such as housing, sanitation, and access to safe drinking water. While reports of people unable to access proper drinking water in well-developed countries are not as shocking after the crisis of Flint, Michigan, these reports show there are people still fighting all over the world for fundamental rights such as water.

In November 2012, an online petition was launched to urge the European Commission to protect water as a human right and common good. It included three demands: 1) EU institutions and Member States should be obliged to ensure that all EU residents enjoy a right to water and sanitation; 2) water supply and management of water resources should be be subject to internal market rules, and water services should be excluded from economic liberalization; and 3) the EU should increase its efforts to achieve universal access to water and sanitation. The petition managed to collect enough signatures to require a response from the EU, and in December of 2014 the European Citizenship’s Initiative Right2Water started work on finding a solution to this long-standing problem.

In 2014, two Roma families, currently living in Slovenia, filed a lawsuit with the European Court of Human Rights. The case, Hudorovic v.Slovenia, still pending before the European Court, sheds light on the living conditions of Roma settlements. The Hudorovic family in the case describes their settlement as being caravan living and without access to basic infrastructure such as water, sewage, sanitation, and electricity. The water they do have access to is collected from the cemetery or a polluted stream, and sometimes from other established houses nearby. The second family in the lawsuit describes their settlement as “twenty housing units for two-hundred and fifty people,” lacking the same basic infrastructures as the first, resulting in gastrointestinal diseases among the children as well as a lack of dignity and privacy. In both instances, each family and their settlements have attempted to gain the proper permits and governmental aid in obtaining these infrastructures. Both have not succeeded and instead been denied of any help by the government.

This case however, is not unique to Slovenia. In 2011, the European Council (EC) declared that each EU country has a joint responsibility in changing the discrimination against the Roma across Europe. The EC solicited for strategic integration plans in solving this discrimination against the Roma from each country. In 2013 the EU made a recommendation on creating these plans, noting that the Roma were vulnerable to exploitation such as human trafficking and faced higher levels of poverty and difficulties accessing fundamental rights. The EC also explained that children who stayed in poor health, poor housing, and who suffered from poor nutrition were especially vulnerable to dropping out of school—and into trafficking and labor exploitation. Some of the proposed resolutions the EC set out for EU countries include increasing access to public utilities (such as water and sewage) as well as the desegregation of housing and education. While the EU does not have any specific language in its constitution declaring that water is a fundamental right (or requiring its member countries to do so), the UN does. The EU has simply given recommendations to its countries and allows each country to make this decision on its own.

Four years later, many countries are still lacking comprehensive integration plans on water and the Roma. In the report “Thirsting for Justice”, released in March 2017 by the European Roma Rights Centre (ERRC), seven countries were surveyed in their integration of the Roma ethnic group. The countries included France, Romania, Hungary, Moldova, Slovakia, Montenegro, and Albania. All but two of these countries had national strategies referencing water and sanitations in relation to their integration strategies. In every country besides France and Moldova, these integration strategies recognize the innate need and the effects that the lack of access to water can have on hygiene and pregnancy. The report states that seventy-two percent of Roma households in Romania, sixty-six percent in Moldova, and thirty-eight percent in Slovakia are still not connected to drinking water sources certified safe (or even inspected or maintained by government officials). Furthering this research, the United Nations Development Programme Regional Roma Survey (2011) found that forty-five percent of Roma living in households lacked at least an indoor kitchen, indoor toilet, indoor shower/bath, or electricity.

The ERRC’s report concludes urging state authorities to continue or to start adopting laws recognizing access to water as a fundamental human right. They urge state authorities to ensure safe water facilities are adequately provided to Roma neighborhoods and settlements, and to start considering the cost of not providing these centers to the Roma. The ERRC advises that the EC create better monitoring mechanisms in ensuring the social equity of water and sewage in the EU states while helping to find the funds and consider the costs of providing water pipelines to Roma communities within each state.

Though the reports seem grim and the shift to making water accessible seems slow moving, a beacon of hope emerged in late 2016. In November, Slovenia amended its constitution making access to drinking water a fundamental right for all citizens, the start of making water accessible to Roma citizens within the state. Slovenia became the first European country to make water a constitutional right and to prevent it from being commercialized. However, much work is yet to be done in implementing this new law in a way that applies it the 10,000-12,000 Roma people living within the country. As Branko Hudorovic aptly stated in his case (Hudrovic v. Slovenia), and echoed by Amnesty International, “The Roma do not need riches, what we really need is a water pipe for our children to wash and to be able to drink water when thirst.” With Slovenia’s new constitutional water right for all of its people and the EU’s still growing Right2Water Initiative, the Roma people may be able to see that need of accessible water soon be fulfilled, hopefully in a suitable time. Until then, all eyes will be on Slovenia in implementing this new constitutional water right for all citizens and the implications it will have across the European Union.

Kristina Ellis


Hudorovic and others v. Slovenia (third party intervention, pending), European Roma Rights Centere report (Sept. 23, 2015), http://www.errc.org/article/hudorovic-and-others-v-slovenia-third-party-intervention-pending/4423.

Slovenia: Constitutional Right to Water “Must Flow Down to” Roma Communities, Amnesty International, (17 Nov 2016), https://www.amnesty.org/en/latest/news/2016/11/slovenia-constitutional-right-to-water-must-flow-down-to-roma-communities/.

Agence France-Presse, Slovenia adds water to constitution as fundamental right for all, The Guardian (Nov. 17 2016), https://www.theguardian.com/environment/2016/nov/18/slovenia-adds-water-to-constitution-as-fundamental-right-for-all.

Roma Data, United Nations Development Programme, (2017) http://www.eurasia.undp.org/content/rbec/en/home/ourwork/sustainable-development/development-planning-and-inclusive-sustainable-growth/roma-in-central-and-southeast-europe/roma-data.html.

EU and Roma, http://ec.europa.eu/justice/discrimination/roma/index_en.htm.

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Effective Roma Integration Measures in the Member States 2016, (June 27, 2016), http://ec.europa.eu/justice/discrimination/files/roma-report-2016_en.pdf.

Council Recommendation on effective Roma integration measures in the Member States, Official Journal of European Union, (Dec. 9, 2013), http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32013H1224%2801%29.

European Roma Rights Centre report, Thirsting for Justice, (March 2017), http://www.errc.org/cms/upload/file/thirsting-for-justice-march-2017.pdf.

Water is a Human Right, http://www.right2water.eu.

Image: Roma girls near Miercurea Ciuc, Romania. Flickr user Rachel Titiriga, Creative Commons.

Over the last five months, Oregon lawmakers have been considering three bills that address the state’s ongoing inability to measure available groundwater as well as the state’s funding options for this much-needed research. Oregon’s agricultural industry, which accounts for eighty-five percent of the state’s water consumption, has been largely unregulated because the state’s Water Resources Department does not have updated knowledge as to how much groundwater is actually available. The long-term sustainability of water sources is an issue making its way to the forefront of many state legislatures, especially the agriculture-heavy states impacted by the recently unpredictable climate.

Oregon is one of many states that allows ranchers to pump water from underground sources, provided they obtain the proper permit. Oregon’s problem is that the state’s Water Resources Department has been handing out permits without knowing how much groundwater is available. Oregon Governor Kate Brown recommended in the 2017-2019 budget that the state double its capacity to perform groundwater research.

Oregon ranchers can legally extract nearly one trillion gallons of groundwater per year; however, a less established number is how much water the state collects per year from precipitation and other sources. The Pacific Northwest state has experienced an explosion of wells in recent decades as the state’s population continues to grow. There are an estimated 400,000 wells in the state, and the majority of well owners are simply on an honor system not to exceed their groundwater allowance. Even without consideration of recent droughts, it is clear that precipitation has not been replenishing the groundwater that Oregon ranchers are pumping. Over-pumping wells depletes Oregon creeks, which harms fish, and threatens communities as well as wildlife.

A permitted rancher is allowed to drill, so long as the well will not have a substantial impact on any river or lake. However, wells within a mile of a stream are subject to stricter rules in the state. The Oregon Water Resources Department is the state agency that appropriates groundwater and allows irrigators to dig new wells. The department is required to make sure the added stress of a new well will not drain an aquifer; yet up until one year ago, even when regulators suspected harm, permits were still being given out. Recently, state officials realized that the lax permit process was depleting Oregon’s water, forcing the department to stop processing new applications. The department contends that they lacked sufficient data to realize sooner that the over-approval of permits was causing water shortages. The department’s budget and staffing has remained stagnant over the past thirty years. Oregon lawmakers have made efforts to increase the department’s budget ever since it was cut in the last recession, but there has been enormous pushback from ranchers and other agricultural interests who have brought lawsuits and organized bills to stop state regulators from imposing water restrictions.

The most recent full-scale review of Oregon’s groundwater supply was conducted in 1968 by the federal government, which found that there was a shortfall of 11 billion gallons of water. The 1968 study found that in Harney Valley, one of Oregon’s nine key agricultural areas at risk of over-pumping, precipitation returned eighty-five billion gallons of water per year, while Harney Valley ranchers are permitted to withdrawal ninety-six billion gallons of groundwater per year. There is a major problem between the supply and demand of groundwater in Oregon’s agricultural areas, and since 1968, water use has only increased.

Current state-funded researchers have analyzed Harney Valley’s groundwater supply and expect to finish their study by 2020. However, Harney Valley is one of eighteen drainage basins in the state that require additional research to determine how much groundwater is actually available. At the current state spending levels, Oregon’s current research team will not complete studies of all eighteen basins until 2096. The state would suffer a major water crisis if Oregon ranchers continued to over-pump while waiting for research results during this seventy-nine-year gap. Oregon’s Water Resources Department suggested that completion of the water basin studies would cost between forty-five million and seventy-five million dollars.

Governor Brown proposed a new budget plan in December 2016 that requested 1.8 million dollars devoted to a new team of researchers to study the underground water sources in Oregon. Under the plan, five new field workers would be hired to perform research projects every five years. The new plan proposed an increase in funding for Oregon’s Water Resources Department of nine percent, bringing the departments total spending to $118.6 million. The Governor recognized that ongoing development in combination with drought conditions have forced Oregon into an unsustainable state.

Oregon lawmakers have also been presented with three bills that address the issue of how to pay for an expansion in the state’s groundwater studies. Oregon Representative Ken Helm introduced all three bills,

Fee for groundwater research

The first bill would charge water users, both business and agricultural, a one hundred dollar annual fee with a cap that would go towards groundwater research. Pursuant to the bill, personal wells would be exempt. Former Oregon Governor John Kitzhaber proposed a similar one hundred dollar fee in 2013 but pulled all support for the fee just one day later due to significant backlash. If passed, the first proposed bill would raise roughly eight million dollars in the 2017-2019 biennium for the Water Resources Department. Outside of the electricity costs of operating their water pumps, water users in Oregon currently pay nothing for the water they use.

Mandatory monitoring

The second proposed bill would require water users to install a measuring device that captures the rate and amount of water at each point it diverts from the water source. The state currently has no way to measure how much water well owners, who are on an honor system not to over-pump, use. Measuring devices can cost up to a few thousand dollars. While the measuring device is seemingly a one-time investment for water users, the device may require additional costly maintenance.

Budget increase for more groundwater research

The third bill proposed calls for $8.2 million in general fund dollars to help pay for the groundwater research expansion. The public’s response to the proposed bill is mixed, with some farmers applauding the legislative action and others disgruntled by the undue burden placed on water users. The third bill was endorsed by the House Energy and Environment Committee and passed on to budget writers in Salem, but in June, legislative budget writers approved a Water Resources Department budget that had no additional money for groundwater studies.

Oregon’s policy has been to approve permits for new wells so long as there appears to be no potential harm to neighboring water sources. Despite the lack of data behind the actual amount of groundwater available in the state, Oregon’s policy in the past has been to approve the building of new wells. One year ago, however, state officials halted all permit approvals. Governor Brown’s budget plan suggests her understanding, with many in agreement, that it is impossible to determine the potential harm to neighboring water sources when the state does not have sufficient knowledge on how much groundwater is available. In response to the proposed legislation, Oregon’s policy of approving wells may become much stricter. The state may choose to adopt a statute similar to Colorado’s. In Colorado, applicants who wish to build new wells have the burden of proving that enough water already exists before a permit is granted. Colorado’s Division of Water Resources also publishes annual reports on groundwater level data collected by the division available to the public. Another potential response is to adopt a more stringent cap of total water use where users can buy and sell water rights, similar to the common practice in Australia. Oregon could also choose to charge a per-gallon fee on owners of water rights.

A stricter approach to the way Oregon allocates well permits may be in the state’s future, but it could take multiple legislative sessions before legislation is passed. Lawmakers did support one water-funding bill this session, projected to bring in $838,000 in the next biennium through increased fees on water rights applications and transfers. The fee increase is a slow start as Oregon continues to fall behind on the measuring of its water usage. Helm will potentially revive the bills in the next short legislative session in 2018.



Kelly House & Mark Graves, Water giveaway threatens livelihoods, wildlife, The Oregonian (Aug. 26, 2016), http://www.oregonlive.com/environment/index.ssf/page/draining_oregon_day_1.html.

Andrew Theen, Gov. Brown asks to expand groundwater studies following Oregonian investigation, The Oregonian (Dec. 3, 2016), http://www.oregonlive.com/environment/index.ssf/2016/12/gov_kate_brown_asks_to_expand.html.

Andrew Theen, Draining Oregon: Lawmaker wants groundwater tracking and fees to speed up research, The Oregonian (Dec. 22, 2016), http://www.oregonlive.com/environment/index.ssf/2016/12/lawmaker_now_is_a_good_time_to.html.

Andrew Theen, Draining Oregon: Lawmakers plan hearings on 3 water bills, The Oregonian (Mar. 21, 2017), http://www.oregonlive.com/environment/index.ssf/2017/03/draining_oregon_lawmakers_will.html.

Andrew Theen, Draining Oregon: Bill to fund $8.2 million in groundwater studies passes key hurdle, The Oregonian (Apr. 14, 2017), http://www.oregonlive.com/environment/index.ssf/2017/04/draining_oregon_bill_to_fund_8.html.

Andrew Theen, Draining Oregon: Water bills dry up in Legislature, The Oregonian (June 29, 2017), http://www.oregonlive.com/environment/index.ssf/2017/06/draining_oregon_water_bills_dr_1.html.

Nick Harrington & Peter Cook, Groundwater in Australia (The National Centre for Groundwater Research and Training, 2014), http://www.groundwater.com.au/media/W1siZiIsIjIwMTQvMDMvMjUvMDFfNTFfMTNfMTMzX0dyb3VuZHdhdGVyX2luX0F1c3RyYWxpYV9GSU5BTF9mb3Jfd2ViLnBkZiJdXQ/Groundwater%20in%20Australia_FINAL%20for%20web.pdf.

State of Oregon, Governor’s Budget 2017-2019, http://www.oregon.gov/das/Financial/Documents/2017-19_gb.pdf, (last visited Mar. 27, 2017).

Ground Water Levels, Colorado Division of Water Resources, http://water.state.co.us/groundwater/Levels/Pages/HydroGeo.aspx, (last visited Mar. 27, 2017).

43 Or. Rev. Stat. § 520.025 (2016).

Image: Welcome sign for Harney County, Oregon. Flickr user Ken Lund, Creative Commons.

Order Concerning the Application for Water Rights of High Valley Farms, LLC (14CW3095)

Earlier this year, Colorado got its first taste of how the state sees marijuana cultivation within the framework of its water law regime.

In an order which may have far-reaching effects beyond Colorado’s flourishing cannabis industry, Division 5 Water Referee Susan Ryan held that it is proper to issue a new water right to a marijuana cultivator. Ryan issued this industry-favorable order despite the continuing prohibition of cannabis by the federal government. As the cannabis industry continues growing, states will be forced to confront an increasing number of conflicts between their internal water allocation and the supremacy of federal law.

As we have previously reported, the marijuana cultivation facility, High Valley Farms of Basalt, initially filed an application for an underground water right, surface water rights, storage water rights, and a plan for augmentation in 2014. High Valley amended its application twice in response to consultation reports and recommendations of the Division Engineer, which primarily focused on whether or not the company’s use of the new water rights were considered “lawful.” As part of the application process, the Division 5 Engineer requested that High Valley clarify how its application fit with the statutory concept of beneficial use in Colorado water law, specifically the phrase “lawfully.” High Valley responded to these inquiries by referencing the legalization of cannabis cultivation under Amendment 64 arguing that state legalization made High Valley’s proposed water use lawful and thus beneficial.

Perhaps the most important facet of High Valley’s application was that it was not claiming the use of any federal contract water or federal facilities. Using such water would almost certainly mean High Valley would have a harder time arguing federal law shouldn’t be a factor in the central beneficial use question.  In 2014, the Bureau of Reclamation announced a policy that federal water could not be used to grow marijuana.

The primary issue before Referee Ryan was whether the State of Colorado could lawfully appropriate High Valley water for cannabis cultivation despite federal prohibition of the plant within the Controlled Substances Act (“CSA”). This issue required Ryan to determine how the term “lawful” operates in the state water law statutes. In addition, Ryan examined whether there was a positive conflict between the Colorado statutes and the CSA.

At the beginning of her order, Referee Ryan began by discussing Colorado’s authority as a state to allocate its own internal water resources.  She reviewed the history of interaction between Colorado and the federal government regarding water rights, including the Mining and Reclamation Acts. Through this legislation, Congress established the federal policy of allowing states to construct and operate their own water regimes. Referee Ryan cited California Oregon Power Co. v. Beaver Portland Cement Co., which is United States Supreme Court precedent that supports the idea of “purposeful and continued deference to state water law by Congress.”

The concept of state deference is essential to the future of the marijuana industry in Colorado, which will require increasing amounts of water to operate, allocated primarily under Colorado water law. If Colorado is not allowed to allocate their own water for use in marijuana cultivation, the nascent marijuana industry may face some difficult questions down the road.

Next, Referee Ryan reviewed the doctrine of prior appropriation, which governs in Colorado, and the related concept of beneficial use under the Colorado Constitution. Under the prior appropriation doctrine, “a water right is a usufructuary right that is created when a specific quantity of water is applied to an actual beneficial use.” Regarding the interpretation of these doctrines, Referee Ryan noted that neither the Colorado Constitution nor state water statutes define the parameters of what constitutes beneficial use under state law, which leaves the question of whether growing marijuana constitutes a “beneficial use” open to interpretation by the state’s water referees and water judges.

Switching gears from water law to marijuana law, Ryan’s order next outlined the laws governing the cultivation of marijuana. Specifically, Ryan analyzed the proposed uses outlined in High Valley’s application. Ryan explained that the Colorado Retail Marijuana Code, adopted by the state legislature after recreational marijuana legalization, explicitly contemplated the supply of water for cannabis grow operations within the state.

To support this, Ryan discussed an Order issued by the Office of the State Engineer after legalization, which stated that, “Division Engineers shall allow Irrigation Water Rights to be used to irrigate any type of plant that may be legally grown under Colorado law.” This Order was originally cited by High Valley in its briefings to Division 5.

Nevertheless, while the water used by High Valley would be from local Colorado sources and the ultimate product can only be sold in Colorado, there is Supreme Court precedent regarding how interstate marijuana growing can invoke Congress’s Commerce Clause powers to regulate that activity. Referee Ryan considered Gonzales v. Raich, in which the Supreme Court held that Congress has the power to regulate local cultivation of marijuana even when it does not enter interstate commerce. In this case, however, there is no federal law at issue, therefore the dispute should be settled under Colorado water law, according to Referee Ryan.

Next, Referee Ryan went on to examine potential preemption issues between Colorado law and the CSA. She discussed the 2015 Coats v. Dish Network case in which the Colorado Supreme Court construed the term “lawful” in a state employment statute in the context of a Dish Network employee being fired for using medical marijuana. The Coats court held that the employment statute’s term “lawful” referenced both federal and state law, and as federal law does not allow for any marijuana use, employer Dish was within its rights to fire the employee for federally-unlawful medical marijuana use.

In the Colorado v. Crouse case the Colorado Supreme Court examined whether a Colorado law that required the return of seized marijuana conflicted with the CSA. The court held that the CSA does not preempt state law unless there is a positive conflict – where it is impossible for federal and state law to coexist.

In her analysis, Referee Ryan explained that a lawful appropriation of water does not require an analysis of the legality of the subsequent use of that water. Distinguishing Coats and Crouse, she argued that the case at issue did not involve federal water, and therefore the presumption of a state’s right to allocate its own internal resources applied.

Ryan then determined that no positive conflict existed here between the CSA and Colorado water law, as “nothing in the CSA prevent(s) High Valley from seeking to divert unappropriated water for a specified beneficial use.” Ryan reasoned that complying with Colorado water law here would not make it impossible to comply with federal law, and therefore no positive conflict existed, unlike in Crouse and Coats.

Overall, the final order declared that the term “lawful” in C.R.S. §37-92-103(4) references solely Colorado water law and nothing more. As the application of Colorado law in High Valley’s water rights case does not conflict with any provisions of the CSA, there are no federal preemption grounds to rule against the cultivation facility.

In sum, Referee Ryan ruled that Colorado law does not preclude High Valley from continuing with its application for water rights. For now at least, the order provides some certainty to a growing industry and it gives a glimpse of how the state may proceed in reconciling some thorny and unsettled patches of water law.

                                                                                                                                    Brian Hinkle

Image: A medical marijuana growing operation. Flickr User Colleen Ellioit, Creative Commons.


Ord. Regarding Issues Raised in the Summary of Consultation, In Re: The Application of High Valley Farms, LLC, No. 14CW3095 (Colo. Water Ct. Div. No. 5 2015).

Kathleen Cunilio, Can the Beneficial Use Doctrine and Cannabis Coexist in Colorado? U. Denv. Water L. Rev. Blog (Dec. 20, 2016), http://duwaterlawreview.com/can-the-beneficial-use-doctrine-and-cannabis-coexist-in-colorado/.

Brent Gardner-Smith, Water court referee finds it lawful to issue a water right to grow pot,  Aspen Journalism (Feb. 21, 2017), http://aspenjournalism.org/2017/02/21/water-court-referee-finds-it-lawful-to-issue-a-water-right-to-grow-pot/.

People v. Crouse, 388 P.3d 39 (Colo. 2017).

Coats v. Dish Network LLC, 303 P.3d 147 (Colo. 2015).

Gonzales v. Raich,  545 U.S. 1, 29 (2005).

California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935).