Wrenches, piping, transport trucks, and hoses. These are the tools of thieves in the American West of the Twentieth Century, and stealing televisions, cars, or wallets may not have the appeal it once did for a previous generation. Water, an increasingly in-demand resource, has replaced those quick moneymakers of yesterday as the new liquid gold quickly climbs the ranks as one of the hotbeds of theft activity across the country.

A bizarre incident in October 2016 in the small town of Erie brought to light the situation of water theft in Colorado. Thieves pumped out 100,000 gallons from a rental residence, equivalent to 2000 full bathtubs of water. The rental house owner became aware of her booming water bills after a four-month period of unnoticed automatic payments that were racking up significant charges. Once she realized the issue could be more than just a leaky faucet, she taped off the faucet, removed the handle, and shut off the valve under the house. Someone returned and removed the tape from the faucet, and when nothing came out they moved their efforts elsewhere. The water bill returned to normal charges, and police continue to investigate the issue.

As the United States passed its fifth year of less-than-average precipitation, and California’s third year of a declared drought state of emergency, Americans’ water usage must be monitored much more closely than in previous years. Besides the obvious health-related uses of water, we utilize water in agriculture, energy production, navigation, recreation, and manufacturing fields. Without the close examination of water distribution and usage, the effects of climate change could create real issues for each of these industries. And as the general public begins to become more aware of the scarcity—and thus value—of water, the number of water theft incidents throughout the country have also continued to grow.

In light of the increase of smuggling incidents, The Brookings Institution recently published a report analyzing the phenomenon of water theft across the globe. The report not only compares recent incidents of theft in various countries to identify multiple causes, but it also addresses the problems of defining what is water theft in the context of water as a human right and the various ways different countries approach water as a resource. Ultimately the report’s author calls for a wide range of measures to address the underlying causes behind water theft globally, one of which is stricter monitoring and enforcement in the allocation and use of water rights—while still recognizing that basic access to water for the poor is a necessity. The report suggests that punitive damages would help protect against increasing water scarcity, and a uniform set of laws or regulations could help to solve the issue in the future.

This fundamental disregard of enforcement or creation of laws may be one reason why the United States is starting to see so many of the same types of issues occurring so regularly. Without the uniformity of a system of water management, each local entity or state entity is required to create their own form of regulation and enforcement. As a result of this, the country has seen a variety of issues popping up, especially in places where water scarcity is a fear.

The incident in Erie has been repeated in a myriad of ways, not only in the West, but across the country. In New York for example, a small city’s mayor was accused of stealing water in 2004 by loosening the screws on his meter when he was overusing. In south Atlanta during the month of October in 2015, 160 people faced charges of water theft. All of these incidents involved tampering with the water meter or valves installed in the residence’s water box. One man, caught three times removing his service company issued meter, decided to install a pipe running to his house from his neighbor’s water meter box. The other incidents involved refusing to pay for water, stealing from neighbors, removing meters, or installing joiner pipes to trick the meter from measuring complete water usage.

In California and the Midwest, the drought has contributed to wells drying up. Some people, in response, decide to build a new well or pay to have water delivered by truck. Other people, however, have turned to taking water from neighboring wells that have not gone dry as a much cheaper and easier approach.

In addition to these household, private theft issues, there have also been instances of people stealing from public water sources. In March of 2016 in Boulder, a pair of men who worked for a ditch company had a permit allowing them to divert a certain amount of water for agricultural use. They applied for the permit using their work information, but took the water from the permit by truckload to sell at a complete upcharge to fracking companies. In Washington, water theft from fire hydrants caused loss of an estimated $145 million around the state in July 2016. People would hook up a hose to the hydrant and pump the water into trucks to be transported elsewhere. This is hazardous because hydrants could potentially deplete the water from the reservoirs. Firefighters, unless they are consistently checking the hydrants, would find out they were out of water only when they went to turn the hose on to fight a fire.

As the interest in the cannabis industry grows, so does the need for water by marijuana grow operations. This demand has inspired many water thieves to sell to black market grow houses across the West. These occurrences have taken place around the state, but most recently and most detrimentally, in the San Luis Valley in Colorado during August 2015. According to local officials the majority of the theft was happening in Costilla County, a county that requires grow operations to obtain local permits. The permits require the operators to disclose their water source because these cultivation endeavors require a large amount of water to operate. If grow operations continue to grow without a local permit, finding a source of legally obtained water is not typically economically attainable. In cases where medical or recreational grow operations cannot locate a legal water source, the operation does not typically cease operations, it finds a legally illegitimate water source and continues to operate as an unlicensed entity.

Another reason Costilla County was so popular with water thieves during this time was because of the price of land. Cheap land encouraged those looking to acquire monthly camping or RV permits to move in and “go off the grid”. These outsiders then are required to obtain a water and septic system, and are often unable to find a cheap, legal source of water to supply to their new homesteads. This causes many newcomers to turn to non-legal sources in order to stay in compliance with the county’s rules, a practice causing many of the locals to come into conflict with these new communities. The most prominent ways of stealing water in Costilla County were from private wells, community irrigation ditches, and local streams.

Thieves continue to draw up new ways to steal water from public spaces or neighbors, and there is no sign of it slowing. Thieves caught in the act of pumping from a stream or community water source are only required to obtain a permit in most states, and they can continue to pump without any fines or legal actions taken against them. Many household cases are never solved because water theft recidivism rates for the same source is low once necessary preventative actions are taken by the owner. For those who have a legal permit to use water, it is an issue of monitoring usage. People who do have permits are required to report usage, but in many cases they are trusted with self-policing their usage. This results in the temptation to utilize more water than originally allocated, or to utilize the water for additional operations than originally applied for. The enforcement of punishments is seemingly low across the nation as many water divisions do not completely know when or how to get law enforcement involved. The best thing that cities and individuals can do is take extra steps to prevent theft within their own water rights, and be more proactive in their security initiatives.

There has not been a proven way to completely prevent these kinds of acts of theft besides alerting the community and taking initiative to report any suspicious activity involving water trucks or piping. Victims of water theft have prevented future loss by purchasing bib locks or lock boxes and securing them over openings to wells, meters or any other potential access point to private water sources. Although this may seem excessive to some, it is undisputedly better than opening a water bill for hundreds of dollars more than expected, and subsequently defending your reputation to the court.

These water savvy thieves continue to map out new, complex ways to make a quick buck off water that is not theirs. This issue is heightened now more than ever not only because of the state of drought, but because of the unpredictable affects climate change is on water supplies. Scientists predict the increase in demand of water will come with the decrease of supply and the quality of supply. The recent increase in water thefts only add another unknown variable to a water future that is projected to be more dry and less predictable.

 

Rebecca Spence

Image: Flickr User ZeroOne, Creative Commons.

Sources:

Climate Impacts on Water Resources, EPA, https://www.epa.gov/climate-impacts/climate-impacts-water-resources#main-content (last visited Dec. 30, 2016).

Governor Brown Declares Drought State of Emergency, Office of Governor Edmund G. Brown Jr. – Home, https://www.gov.ca.gov/news.php?id=18368 (last visited Nov. 22, 2016).

Jamie Knotts, You’d Be Surprised Who’s Stealing Your Water On Tap Magazine – Winter 2004, http://www.nesc.wvu.edu/ndwc/articles/ot/wi04/stealing.html (last visited Nov. 23, 2016).

Amelia Arvesen, Police Investigating Theft of 100,000 Gallons of Water from Erie Residence, Boulder Daily Camera (Oct. 11, 2016, 9:15 AM), http://www.dailycamera.com/top-stories/ci_30457679/police-investigating-theft-100-000-gallons-water-from.

John Eligon, Drought Disrupts Everyday Tasks in Rural Midwest, N.Y.Times, http://www.nytimes.com/2012/08/24/us/midwest-water-wells-drying-up-in-drought.html (last visited Dec. 7, 2016).

Matt Hildner, Officials Perplexed by Water Thievery, Pueblo Chieftain (Aug. 15, 2015, 4:00 AM), http://www.chieftain.com/special/water/3851010-120/county-cotten-enforcement-officials.

Matt Weiser, California Drought Puts Spotlight on Water Theft, Sacbee (Mar. 23, 2014, 12:00 AM), http://www.sacbee.com/news/politics-government/article2593633.html.

Mitchell Byars, Pair Charged with Selling Boulder Agricultural Water to Frackers, Boulder Daily Camera (Mar. 22, 2016, 5:19 PM), http://www.dailycamera.com/boulder-county-news/ci_29672200/pair-charged-selling-boulder-agricultural-water-frackers.

Monique Griego, Thieves Steal Water from Phoenix Homeowners, KPNX (Oct. 6, 2016, 11:37 AM), http://www.12news.com/news/local/valley/thieves-steal-water-from-phoenix-homeowners/329451291.

More Than 150 People Charged with Stealing Water, WSB-TV Atlanta (Oct. 29, 2015, 4:36 PM), http://www.wsbtv.com/news/local/exclusive-150-people-arrested-charged-stealing-wat/27332227.

Nathaniel Minor, In Costilla County, Tempers Flare in a Fight Over How To Live, Colo. Public Radio, http://www.cpr.org/news/story/costilla-county-tempers-flare-fight-over-how-live (last visited Nov. 20, 2016).

Todd C. Frankel, New NASA Data Show How the World is Running out of Water, Wash. Post, https://www.washingtonpost.com/news/wonk/wp/2015/06/16/new-nasa-studies-show-how-the-world-is-running-out-of-water/ (last visited Nov. 23, 2016).

Tom Philpott, A Single Pot Plant Uses HOW Much Water?!, Mother Jones (Apr. 16, 2014, 5:00 AM), http://www.motherjones.com/tom-philpott/2014/04/your-pot-habit-sucks-salmon.

WSSC Kicks Off Water Theft Prevention Program, WSSC (July 16, 2016, 10:07 AM), https://www.wsscwater.com/contents/news/2016/wssc-kicks-off-water-theft-preve.html.

Vanda Felbab-Brown, Water Theft and Water Smuggling, Brookings, https://www.brookings.edu/research/water-theft-and-water-smuggling/ (last visited Apr. 3, 2017).


The Other Black Gold

Historically, water has been a nuisance in oil and gas production because companies have to transport and dispose of water that is produced along with the fuel that is pulled from the reservoir.  However, produced water became even more of a nuisance for coal bed methane (“CBM”) producers in 2009 after the Colorado Supreme Court held in Vance v. Wolfe that dewatering of a coal bed to produce methane gas was a beneficial use as defined by the Ground Water Act of 1969.  The Vance ruling made it so CBM producers have to obtain a water well permit and an augmentation plan to protect vested water rights when dewatering a coal bed to produce methane gas.

However, the Vance decision left the door open for produced water to become an asset instead of a nuisance for traditional and shale wells.  The decision clarified that the State Engineer, not the Colorado Oil and Gas Conservation Commission, has the authority to regulate produced water.  Produced water from these operations is naturally occurring brackish or brine water that was trapped in the oil reservoir.  This regulatory authority, codified in Colo. Rev. Stat. § 37-90-137(7)(c), allows the State Engineer to classify Colorado’s formations and basins, in whole or in part, as nontributary groundwater for the purpose of dewatering for mineral extraction.  In Colo. Rev. Stat. § 37-90-137(7)(a), the state legislature authorized non-CBM operators to use nontributary groundwater removed during extraction for various drilling operations within the same basin including well stimulation, well maintenance, dust control, pump operation, injection in a properly permitted disposal well, and disposal at a properly permitted commercial facility without a water well permit.

This development presents non-CBM operators with the unique opportunity to harness produced water from designated nontributary groundwater formations and basins for a variety of purposes without being subject to the state doctrine of prior appropriation.  In essence, as long as the same operator continues to use the produced water in the same basin for any of the enumerated uses above, the operator can use the water to its extinction and can transfer it without ever being subject to challenges of injury under the doctrine prior appropriation.  The ability to obtain and use water that is not subject to prior appropriation rather than lease or purchase water rights has the potential to save the oil and gas industry a substantial amount of money.  The economic impact for the oil and gas industry, as well as other industries, could be tremendous given that oil and gas operations produced more than 41,000 acre-feet of water in 2012.

The potential to use produced water for well stimulation could be a game changer in Colorado where approximately ninety-five percent of new wells are stimulated by hydraulic fracturing (“fracking”). Fracking a vertical or directional well requires between 100,000-1,000,000 gallons of water per well, while fracking a horizontal well require two to five million gallons of water per well.  Clearly, when the industry is thriving their water needs quickly increase putting added strain on Colorado’s stressed water supply.

For example, in 2012, 1500 vertical/directional wells were drilled and 1000 horizontal wells were drilled using approximately 19,947 acre-feet of water accounting for 0.13% of Colorado’s total water use.  Even if operators use a mixture of freshwater and produced water for fracking, their savings would be immense given the rising prices of water in Colorado.

Furthermore, oil and gas operations in Texas have already begun to experiment with using a mixture of brackish water and produced water in the fracking process with some success.  However, using produced water presents several challenges, because produced water contains metal salts, and can range from brackish water (which is less saline than sea water) to brine water (which is more saline than sea water).  The salt and mineral makeup of produced water reacts differently given the type of rock formation or chemicals used in the fracking fluid, which requires operators to vary formulas.  Despite the challenges and costs associated with varying formulas, the use of produced water for fracking in Colorado could save operators money, especially if they could become a self-sustaining water user, and thereby decrease demand for freshwater reducing the price for other industries around the state.

In addition to permitted drilling operation uses, non-CBM operators are also authorized to dispose of nontributary produced water without a water well permit by injection in a properly permitted disposal well, or at a properly permitted commercial facility.  Most oil and gas producers prefer to dispose of wastewater through injection wells because it is cost effective and quick.  However, environmental pushback and concerns about increased seismic activity around injection sites has made water treatment a more attractive option, which has pushed the industry to innovate and become more cost effective.  Along these same lines, the water treatment industry has been able to successfully turn even brine water into freshwater through the process of reverse osmosis, which makes recycled water a viable option for a variety of uses.

If treatment becomes even more cost effective, then recycling produced water could be an attractive venture in drought-stricken states like Colorado where oil and gas, and other water intensive industries are major economic drivers. In 2015, Colorado came in as the sixth highest producer of natural gas in the United States and the seventh highest producer of crude oil in August, 2016.  The oil and gas industry contributes over thirty-one billion dollars to the state’s economy in 2014. Colorado was also the twenty second highest agriculture producing state in 2015, and the agricultural industry in Colorado uses eighty-nine percent of consumed water.  Agriculture also contributes forty-one billion dollars to the state’s economy. Recycling produced water that could be used for agriculture could protect the industry as the state’s population grows and municipal demands grow.

The impact of using treated or desalinated water can be seen in Israel where treated sources are almost the exclusive source of water for the agricultural industry. Additionally, recycled water could be used for river recharge or as augmentation water for shallow freshwater basins.

Nevertheless, recycling produced water to be used in other industries raises questions about classification and ownership. Colo. Rev. Stat. § 37-90-137(7)(a) states that, in regard to nontributary groundwater, an operator does not need a well permit unless the produced water will be beneficially used—which recycling for future use would seem to be.  However, Colo. Rev. Stat. § 37-90-137(7)(c) allows non-CBM to dispose of water at a properly permitted commercial facility without having to obtain a well permit—which seems to label recycling of produced water as not a “beneficial use” within the definition of the Groundwater Act of 1969.  Theoretically water treatment facilities could be producing freshwater from a nontributary source that in turn could be used for a variety beneficial uses.  Thus, despite the costs of recycling the produced water, whoever owns the produced water could then sell, trade, or augment a water source with water that to that point hasn’t been subject to prior appropriation.

Ultimately, the administrative leeway encourages non-CBM producers to properly dispose of water by not imposing the costs of well permitting or augmentation plans, but also creates a situation where a new water source could be created without being subject to prior appropriation.  Even if the newly recycled water would be subject to prior appropriation upon sale or trade, the owner of the newly recycled produced water could potentially gain financially without having to obtain a water well permit to recover the water in the first place.  Therefore, mineral rights agreements between the oil and gas producer and the lessor would be critical to establish who owns the nontributary produced water. However, there is dicta in the Colorado Supreme Court case, Board of County Commissioners of County of Park v. Park County Sportsmen’s Ranch, LLP (“Park County Sportsmen’s Ranch”) that could further complicate the analysis.

Park County Sportsmen’s Ranch was a 2002 case involving a trespass claim from artificial recharge into storage space in subsurface aquifers.  In the case, the Colorado Supreme Court accepted the Ohio Supreme Court’s rationale that surface owners do not enjoy absolute ownership of waters below their land, because the water below their properties, including the native brine, are classified as waters of the state.  The Colorado Supreme Court found this distinction particularly significant to Colorado’s long standing constitutional, statutory, and jurisprudence that all water in the state is a public resource which the state decrees rights to.  Starting from the foundation that there are limitations to absolute subsurface rights, and that all water in Colorado is public including the native brine, it seems that the state, surface owner, split estate subsurface owner, and producer could all have claims to the produced water.

Ultimately, post Vance v. Wolfe rulemaking was positive in the respect that it cut administrative costs for non-CBM producers and the state by not requiring a water well permit for nontributary produced water.  The rulemaking also encourages non-CBM producers to use produced water in new ways, and incentivizes them to dispose of produced water properly.  However, the economic benefit of using produced water in new ways and the potential to use recycle produced water for other beneficial uses will sooner or later spark questions of ownership.

Dalton Kelley

Image: Photo of Ambassador Daniel Shapiro’s visit to the Hadera Desalination Plant in Israel. Flickr user U.S. Embassy Tel Aviv, Creative Commons.

Sources:

Bill Bailey et al., Water Control, Oilfield Rev. 30, (Spring 2000), available at https://www.slb.com/~/media/Files/resources/oilfield_review/ors00/spr00/p30_51.pdf.

Vance v. Wolfe, 205 P.3d 1165, 1173 (Colo. 2009).

Colo. Rev. Stat. Ann. § 37-90-137(7)(c) (West).

Colo. Rev. Stat. Ann. § 37-90-137(7)(a) (West).

CDR Associates Et Al., Produced Water Beneficial Use Dialogue: Opportunities and Challenges for Re-Use of Produced Water on Colorado’s Western Slope, https://www.colorado.gov/pacific/energyoffice/atom/14121 (last visited Jan. 5, 2017).

Denver Metro Chamber of Commerce, Energyhttp://www.denverchamber.org/policy_committees/energy.aspx (last visited Jan. 5, 2017).

Colorado Oil & Gas Association, Water Use Fast Factshttp://www.coga.org/wp-content/uploads/2015/09/15-Fact-Sheet_WaterUseFF.pdf (last visited Jan. 5, 2017).

Water Market Research LLC., Colorado’s South Platte Basin Water Rights Market, http://www.waterexchange.com/wp-content/uploads/2016/02/16-0217-Q1-2016-WWInsider-LO-singles.pdf (last visited Jan. 5, 2017).

Mose Buchele, Fracking Boom Spurs A Rush to Harness Brackish Water, State Impact (Mar. 28, 2013, 6:00 AM), https://stateimpact.npr.org/texas/2013/03/28/drilling-boom-spurs-a-rush-to-harness-brackish-water/.

Seth M. Siegel, Let there be Water 115, 119, 139, 225 (Thomas Dunne Books, 2015).

Water Quality Ass’n, Glossary of Salt Waterhttp://www.pacificro.com/watercla.htm (last visited Nov. 18, 2016).

Maxwell B. Kallenger, Who Owns All This Fracking Water?, La. L. Rev., (Oct. 29, 2015), available at https://lawreview.law.lsu.edu/2015/10/29/who-owns-all-this-fracking-water/.

Dalton Kelley, Environmental New Federalism and Fracking; Lessons from the Colorado Experience, California State University Bakersfield Walter Stiern Library (2014), available at http://www.csub.edu/library/thesis/kelley_d_pa_w14.pdf.

David B. Burnett, Potential for Beneficial Use of Oil and Gas Produced Water, Global Petroleum Institute (2004), available at http://www.circleofblue.org/wp-content/uploads/2010/09/beneficialuses-produced-water.pdf.

Climate at a Glance, NOAA, https://www.ncdc.noaa.gov/cag/time-series/us/5/0/pmdi/1/10/1895-2016?base_prd=true&firstbaseyear=1901&lastbaseyear=2000 (last visited Nov. 18, 2016).

Colo. Office of Econ. Dev. & Int’l Trade, Key Industry Food & Agriculturehttp://choosecolorado.com/wp-content/uploads/2016/06/CO-Food-and-Ag-Profile.pdf (last visited Nov. 18, 2016).

U.S. Energy Info. Admin., Rankings: Natural Gas Marketed Production, 2015https://www.eia.gov/STATE/rankings/#/series/47 (last visited Nov. 18, 2016).

U.S. Energy Info. Admin., Ranking: Crude Oil Production, August 2016https://www.eia.gov/STATE/rankings/#/series/46 (last visited Nov. 18, 2016).

Colo. Oil and Gas Ass’n, University of Colorado Economic Study Shows Oil and Gas Industry is Key to Colorado’s Economic Health and Stabilityhttp://www.coga.org/wp-content/uploads/2015/12/Press-Release-CU-Oil-and-Gas-Economic-Study-Key-Economic-Driver.pdf (last visited Feb. 10, 2017).

USDA, Data Products,http://data.ers.usda.gov/reports.aspx?ID=53580 (last visited Nov. 18, 2016).

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Joe Murphy, Chart: Colorado is the Second-Fastest Growing State in the U.S., The Denver Post (July 7, 2016, 4:23 PM), http://www.denverpost.com/2016/07/07/colorado-second-population-growth-2015/.

Seth M. Siegel, Let there be Water 115, 119, 139, 225 (Thomas Dunne Books, 2015).

Bd. of Cty. Comm’rs of Cty. of Park v. Park Cty. Sportsmen’s Ranch, LLP, 45 P.3d 693, 701 (Colo. 2002).

 


The effects of subdistrict requirements on agriculture in the San Luis Valley

For farmers, the future is never guaranteed. It’s filled with risk, uncertainty, and tough choices.  But for farmers in the San Luis Valley (“Valley”), that uncertainty is perhaps greater and the choices more difficult in the more than ten years since the Valley’s move towards groundwater subdistricting.

Following recent droughts and an increase pressure on local water supplies, Valley residents in 2005 faced an ultimatum to either develop a recharge plan for the area’s unique aquifer system or face government intervention in local water management. Choosing to avoid state involvement, the San Luis Valley, specifically the Rio Grande Water Conservation District paired with water users in the Valley, decided to move towards ground water management subdistricts to prevent depletion. But that move seems to have left many left local irrigators between an economic rock and a hard place, and it has created a situation where many are reevaluating the benefits of conservation easements.

While the long-term goal of ensuring the Valley’s sustainability by using the limited water resources wisely is one that is popular across the entire San Luis Valley, the change to subdistricts created a new set of challenges and economic consequences and changed the cost-benefit analysis for local land and water. These new market forces are forcing agriculturalists in the Valley to confront the purpose of why they are in the industry in new and more immediate ways. The choice essentially comes down either wanting to retain agricultural land as-is or wanting to increase one’s personal savings.

The San Luis Valley is a unique hydrogeological area located in south-central Colorado. At an elevation varying between 7500 and 8000 feet above sea level, the hydrogeology of the area creates both a confined and an unconfined aquifer system. The confined aquifer resides below the unconfined aquifer, and relatively impermeable beds of clay and basalt separate the two. This confining layer of clay and basalt does not exist on the perimeter of the Valley allowing surface water to recharge the confined aquifer and generate artesian pressure.

This artesian pressure arises from the increase in pressure generated from the recharge areas that have higher elevations than the Valley floor. This unique aquifer system helps counterbalance the short growing season and low average annual precipitation of around 7.5 inches a year, and it helps sustain a productive agricultural economy that is dependent on irrigation pumped out of the dual aquifers.

In response to a multiyear drought beginning in 2002 and the over-appropriation of the region’s limited water supplies, the Rio Grande Water Conservation District (“RGWCD”), in conjunction with the State Engineer, initiated groundwater management subdistricts in 2005 pursuant to Senate Bill 04-222 (now codified as C.R.S. § 37-92-501(4)). The RGWCD implemented subdistricts to ensure sustainability and to allow a water management plan that accounts for varying hydrological conditions across the Valley, specifically the hydrological connection between surface water and groundwater relating to the confined aquifer.

Groundwater subdistricts divide specific areas into hydrologically-like sections that allow for more efficient and effective conservation matters across an area. Subdistricts impose a collection of taxes that subdistrict authorities can use to purchase augmentation water and replenish aquifer systems. Agricultural water users in the area either have to join their respective subdistrict or, alternatively, develop their own augmentation plan. A subdistrict creates a five-year rolling plan on how to return water to the aquifer system.  These plans help busy farmers in the area, allowing them to save time and resources by not having to draft personal augmentation plans.

The subdistrict money collected is also used to pay farmers to fallow certain plots to conserve water.  This tax continues a stepwise process to pursue regulation of the confined and unconfined aquifers in order to maintain a sustainable water supply. However, users within the subdistricts can avoid this tax by trading surface water for groundwater. Farmers who substitute surface water will receive credit for the recharge of the groundwater they pumped and avoid paying the tax. This has turned out to be a popular option, which has created even more demand for an already over-appropriated basin. As a result, the ability to substitute water has created a hefty increase in the value of all surface water rights in the San Luis Valley, the larger economic effects of which are just now becoming apparent over a decade after RGWCD’s subdistricitng implementation.

In particular, and perhaps most surprising, the increase in surface water value derived from the subdistricting has had an effect on agricultural conservation easements in the Valley and their economic value. Agricultural easements aim to protect agricultural land and interests. A push for this type of easement arose out of a fear of further development of the area as well as a fear of losing water to opposing interests, such as an exportation of water to municipalities that culminated in the Colorado Supreme Court Decision American Water Development, Inc. v. City of Alamosa. Generally, conservation easements offer tax incentives for a legally binding agreement that permanently restricts the development and future uses of the subject property to protect certain conservation values. With an increasing demand (and short supply) of surface rights, those who have conservation easements on their land face the reality that the value of these easement no longer adequately reflects the increasing value of the associated water rights that would necessarily be tied up in the easement. If the market price for surface water rights outweighs the benefit of the easements, it could cause easement implementation in the Valley to slow substantially. This financial calculus is further complicated by the increased demand for water around the state. Even beyond the Valley, water is becoming a resource that is exponentially increasing in value in Colorado—partially due to recent droughts and a rapidly increasing population.

As a result, farmers and ranchers in the San Luis Valley are facing a new and unexpected cost-benefit dilemma. On one hand, the fear of losing an already limited resource to an opposing interest, such as transbasin diversion, creates a great incentive to enter into a conservation easement.  On the other hand, the potential increase in value of surface water in relation to the new subdristrict rules creates an incentive to steer clear of conservation easements in the hope of one day selling high-value water rights at a premium.

Essentially, the choice for a farmer of whether to have an easement comes down to the farmer’s reasons behind having that easement. If he or she wants to keep the land undeveloped well into the future, then an easement is likely the best option. If a farmer does choose a conservation easement, he or she will likely face the fact that they will suffer deadweight loss in the short run in exchange for the ability to preserve the land. However, if money is the priority, then keeping their water rights free of any conservation easement is likely a better choice. The changes resulting from the volatile water market emphasize the need for farmers and ranchers in the area to create strategic goals to combat and account for the variable change in the agriculture industry generated when new challenges like a move in the water market are presented to agriculturalists of the area.

While both subdistricts and easements are voluntary, the economic realities of the Valley are increasingly pushing San Luis Valley agriculturists to pick one or the other. And while the two options are technically not mutually exclusive, each does have a have large effect on the other, creating either a loss monetarily and in future options or in the ability to preserve the condition of one’s land for future use and enjoyment. And while there are easements available that would not encompass a water right, given their purpose in the San Luis Valley and the importance water plays in the traditional use of the land, such an easement would be hard to find.

Ultimately, the idea of subdistricting was inevitable, and the manner in which it came about in the San Luis Valley allowed input from local people.  The long-term goal of ensuring the Valley’s sustainability by using the limited water resources wisely is one that remains popular among agriculturalists. Nevertheless, the move has created a new set of challenges and economic consequences by increasing the value of surface rights in the Valley and changing the cost-benefit analysis for local land and water owners to enter into conservation easements. These new market forces are driving agriculturalists in the Valley to confront in new and more immediate ways the purpose of why they are in the industry. Those seeking the long-term satisfaction of retaining agricultural land for the purposes of agriculture will continue to find a higher value in conservation easements. But those seeking monetary gain and flexibility in the future will be drawn to avoiding any easements tying the water to the land.

While deciding between an easement and selling surface rights is a voluntary choice that one can make at his or her own leisure, economic conditions in Colorado are accelerating the need for a decision on the matter. Truly, Sun Luis Valley agriculturists need to develop strategic goals and determine the purpose of their operations.

            Kole Kelley

Image: A look at a fallow field in the San Luis Valley. Flickr user Ken Lund, Creative Commons.

References:

Findings of Fact, Conclusions of Law, Judgment and Decree, In re Rules Governing New Withdrawals of Ground Water in Water Division No. 3 Affecting the Rate or Direction of Movement of Water in the Confined Aquifer System (“Confined Aquifer New Use Rules for Division 3”), Case No. 04CW24, ¶ 523, ¶ 533 (Dist. Ct. Colo. Water Div. No. 3, Nov. 9, 2006), aff’d sub. nom. Simpson v. Cotton Creek Circles, L.L.C., 181 P.3d 252 (Colo. 2008).

Alamosa-La Jara Water Users Protect. Ass’n v. Gould, 674 P.2d 914, 918 (Colo. 1984).

American Water Development, Inc. v. City of Alamosa, 874 P.2d 352, 367 (Colo. 1994).

William A. Paddock, Groundwater Regulation in Water Division No. 3, A Work in Progress, prepared in conjunction with a presentation given for the Colorado Bar Association, Water Law Section (CLE), September 2010, page 7.

Simpson v. Cotton Creek Circles, L.L.C., 181 P.3d 252, 263 (Colo. 2008).

Colo. Rev. Stat.  § 37-92-501 (2016).

Martin Smith, Water Supply, Shortage, Human Impact & Public Health, http://panmore.com/water-supply-shortage-human-impact-public-health (last updated June 18, 2015).

San Antonio, Los Pinos & Conejos River Acequia Pres. Ass’n v. Special Improvement Dist. No. 1 of Rio Grande Water Conservation Dist., 270 P.3d 927, 948 (Colo. 2011).

Lora Abcarian, Subdistrict begins implementation of groundwater management plan, THE PRODUCE NEWS (Sept. 10, 2012), http://theproducenews.com/news-dep-menu/test-featured/8762-subdistrict-begins-implementation-of-groundwater-management-plan.

Matt Hildner, Groundwater sundistrict plan advances in valley, PUEBLO CHIEFTAIN (Mar. 5, 2016), http://www.chieftain.com/special/water/4514689-120/subdistrict-groundwater-valley-management.

American Water Development, Inc. v. City of Alamosa, 874 P.2d 352,3 58 (Colo. 1994).

Paige Blanfenbuehler, After years of drought and overuse, the San Luis Valley aquifer refills, HIGH COUNTRY NEWS (May 26, 2016), http://www.hcn.org/articles/after-years-of-drought-and-overuse-a-water-basin-refills-in-the-san-luis-valley.


Often referred to as the “accidental lake,” the Salton Sea formed in the early twentieth century when heavy rain and snowfall caused a diversion in the Colorado River to burst and pour out into a dried up lakebed in the California desert. The Salton Sea is a terminal lake with no outlets and very little inflow of water, and it depends of agricultural runoff from the Imperial and Coachella valleys. As a result, the Salton Sea is ridden with pesticides, fertilizers, and salinity levels fifty percent greater than that of the Pacific Ocean.

Current State

Since the 1990s the Salton Sea has receded dramatically, driving out most remaining residents, businesses, as well as its wildlife.  In the late 1990s, and also to a lesser extent in 2006, the low water levels and lack of oxygen in the lake caused some ten million Tilapia to suffocate and wash up on shore.

As the Salton Sea’s shoreline continues to recede, hundreds of acres of foul-smelling, dry, chemically ridden lakebed is exposed. When kicked up by desert winds, the lakebed has the potential to cause hazardous dust storms, raising serious environmental and public health concerns. Furthermore, public health officials are concerned that because of the high levels of pesticides and fertilizers in the water, the dust may contain toxic heavy metals, such as arsenic. The high levels of dust released from the dried-up lakebed are inhaled by the 650,000 residents of the surrounding area.  Consequently, Imperial County currently has the highest asthma-related hospitalization rates in California.

The lake’s receding waters and hazardous dust storms are not only posing serious public health issues, but also a number of environmental concerns.  The Salton Sea, at forty-five miles long and fifteen miles wide, is California’s largest lake and one of the few remaining waterways in Southern California, and therefore serves as an important migration point for more than four hundred species of birds each year. Although there are varying opinions on the matter, most stakeholders agree that allowing the lake to dry up will have devastating effects on surrounding areas.

What Next?

The Salton Sea’s bleak conditions are only expected to worsen as even less water becomes available to maintain the lake.  In 2003, California implemented the Quantification Settlement Agreement, which re-apportioned water from the Colorado River to be distributed to urban areas and divert water away from the Salton Sea.  In response to concerns that the condition of the lake would worsen without an inflow of water, the Imperial Irrigation District (“IID”) agreed to send “mitigation water” to the sea until 2018.  Mitigation water is collected by asking farmers to fallow their land in exchange for a monetary pay out.  Being that this is only a temporary fix, under the agreement, the state is required to have a large-scale restoration effort ready to be set in motion by 2018.

As 2018 and the end of the supply of mitigation water approaches, the state and federal governments have begun to address the future of the Salton Sea.  This past July, Governor Jerry Brown announced an $80.5 million plan to work with the IID to build canals and artificial wetlands along the lake’s continuously receding shoreline.  Additionally, this past September, the Obama Administration budgeted $30 million to further expedite California’s habitat and dust suppression projects, improving air and water quality, and restoring fish and wildlife habitat.  Currently, the state is drafting a more comprehensive Salton Sea Management Plan, estimated at upwards of three billion dollars, which is scheduled for release by the end of 2016.

IID’s plan to salvage the Salton Sea proposes creating a smaller but more sustainable version of its former self that will still be able to serve the needs of its wildlife and surrounding communities.  The plan focuses on five specific goals: ensuring water supply reliability, protecting public health, developing carbon-free energy, protecting and restoring the sea’s ecosystem, and providing for economic growth.  IID Program manager, Bruce Wilcox states that, “a reconfigured sea will limit fugitive dust emissions, preserve and create avian habitat and expand economic opportunity for one of California’s most economically distressed areas.”

Currently, construction has begun on an experimental portion of artificial habitat of the Salton Sea. Small sections that are completely isolated from the rest of the lake are pumped with fresh water and then filled with new fish.  With the ability to move water in and out of these habitats, scientists hope that some of the lake’s stagnation and hyper-salinity issues will be resolved. These shoreline pools and shallow water habitats serve not only to restore the sea’s ecosystem, but also to reduce the formation of hazardous dust storms.

In regards to controlling the hazardous dust storms in the area, the IID’s plan focuses on covering exposed lakebed through the creation of shoreline pools and artificial habitats. Additionally, thanks to a two million dollar grant from the National Institute of Environmental Health Sciences, new air monitoring devices will be installed in the area to measure the amount of hazardous particles in the air.  These air monitoring devices will not only notify residents when they need to take extra precautions, but will also provide data that can help bring public awareness to the seriousness risk posed by airborne dust in the area.

Funding the Plan: Geothermal Potential

In addition to state and federal funding, local officials hope that they could tap in to the Salton Sea’s geothermal potential in order to secure much of the funding necessary. Despite being the largest geothermal reservoir in the United States, there are only eleven existing geothermal plants in the area. Although there are proposed plans to build large-scale geothermal plants on the dried up lakebed, construction of theses plants is very costly, which has prevented development in the past.  Most recently, Controlled Thermal Resources has proposed a plan to build a 250-megawatt geothermal plant on the Salton Sea’s southern shore. In their recent studies, the IID projected that the new geothermal developments could generate up to two billion dollars total, some of which would go towards Salton Sea restoration efforts. However, research done by the National Renewable Energy Laboratory predicts much smaller numbers, somewhere between $98 million and $210 million.

Conclusion

The proposed visions for the future of Salton Sea are far from the dynamic place it once was.  However, in its current, toxic condition, it poses serious health concerns to surrounding citizens; and as water levels continue to fall, it threatens California’s ecosystems that rely on clean water for survival.  Future restoration projects will be designed with this in mind, and will focus on long-term solutions to fix the Salton Sea’s catastrophic problems.  Although not ideal, the varying proposals are realistic and, if successful, the restoration of Salton Sea will help alleviate many environmental and public health concerns that currently plague the area.

Alicia Garcia

Image: Dead trees in the Salton Sea, California. Flickr User Phil Price, Creative Commons.

 

Sources:

Chris Iovenko, Toxic Dust From a Dying California Lake, THE ATLANTIC (Nov. 9, 2015), http://www.theatlantic.com/science/archive/2015/11/the-airborne-toxic-lake-event/414888/.

Ian James, As the Salton Sea’s decline looms, a rush to cover up dry lakebed, DESERT SUN (Oct. 26, 2016), http://www.desertsun.com/story/news/environment/energy-water-summit/2016/10/27/salton-seas-decline-looms-rush-cover-up-dry-lakebed/92521442/.

Allison Harvey Turner & Barry Gold, Solving the Salton Sea Crisis, SAN DIEGO TRIB. (Oct. 12, 2016), http://www.sandiegouniontribune.com/opinion/commentary/sd-utbg-salton-sea-crisis-20161012-story.html.

Matt Simon, The Salton Sea: Death and Politics in the Great American Water Wars, WIRED (Sept. 9, 2016), https://www.wired.com/2012/09/salton-sea-saga/.

Neal V. Hitch, A History of Water- and the Salton Sea- in Imperial, IVY PRESS (Mar. 21, 2015), http://www.ivpressonline.com/life/desertmuseum/a-history-of-water-and-the-salton-sea-in-imperial/article_40c423a4-c9d3-5aa7-8255-e43ea4c6a559.html.

Quantification Settlement Agreement, Water Education Foundation,  http://www.watereducation.org/aquapedia/quantification-settlement-agreement, (last visited Nov. 11, 2016).

Sarah Friedman & Kyle Jones, Time is Running Out to Save the Salton Sea, SACRAMENTO BEE (Sept. 27, 2017), http://www.sacbee.com/opinion/op-ed/soapbox/article104484671.html.

Pamela Marineau, Imperial Irrigation District Releases Framework for Salton Sea Restoration, Ass’n Cal. Water Agencies (July 29, 2015), http://www.acwa.com/news/conservation/imperial-irrigation-district-releases-framework-salton-sea-restoration.

Tyler Haden, Where’s the Money and the Plan That Will Save the Salton Sea?, L.A. TIMES (Oct. 16, 2016), http://www.acwa.com/news/conservation/imperial-irrigation-district-releases-framework-salton-sea-restoration.

Ian James, Tracking Asthma Threats in the Imperial Valley’s Hazy Air, DESERT SUN (Sept. 26, 2016), http://www.desertsun.com/story/news/environment/2016/09/21/imperial-valley-new-pollution-monitors-installed-help-track-dangers-hazy-air-asthma/89818666/.

Sammy Roth, Salton Sea Could Get New Geothermal Power plant, DESERT SUN (Mar, 16, 2015), http://www.desertsun.com/story/tech/science/energy/2016/03/15/salton-sea-could-get-new-geothermal-power-plant/81839422/.

Sammy Roth, Don’t Count on Geothermal to Save Salton Sea, DESERT SUN (Feb. 3, 2016), http://www.desertsun.com/story/tech/science/energy/2015/12/31/report-dont-count-geothermal-save-salton-sea/78031508/.


During late summer 2015, activity by the U.S. Environmental Protection Agency (“EPA” or “Agency”) triggered a catastrophic release of three million gallons of acidic mine drainage from the Gold King Mine north of Silverton, Colorado into Cement Creek, a tributary of the Animas River.  The yellowish-orange Release, consisting of arsenic, cadmium, iron, and zinc flooded into the creek.  The acidic release then travelled down the river over the course of a few days, crossing several states and communities in the process. Over a year later, the Gold King Mine spill has left many questions and impending legal battles in its wake.

On August 5, 2015, the EPA began digging at the Gold King Mine Level 7 Audit. At 10:51 A.M, a worker stopped when he discovered a “spring.”  Within minutes, the water increased flow and turned from clear to red to orange.  The EPA immediately took action by stabilizing the mine entry and creating various treatment ponds.  Though the EPA took immediate measures, it could not remove the sediments from the water that had already mixed with the waters of Cement Creek. Several metals were dissolved in the release—such as lead, arsenic, and cadmium—resulting in orange-yellow river flows. The EPA’s report on the release can be found here.

One year later, surface water has returned to pre-release levels.  In addition to avoiding discolored water and soil, the EPA suggested some guidelines for health and safety issues associated with spills.  Moreover, the EPA has assured the public that downstream sources are safe for irrigating farms and for watering livestock, as the region’s livelihood relies heavily on agriculture.  Fish from the Animas River are even safe to eat; however, the EPA has authorized continued monitoring of metals in local fish, since contaminants may concentrate over time.

The EPA listed Gold King Mine Remediation on its National Priorities List for Superfund Cleanup in September 2016, despite local concerns over marketing for tourism. The superfund program uses federal money to investigate and clean up after disasters. The Agency hopes to collaborate with all relevant entities, including private, public, tribal, and non-profit, to stimulate remediation and change in the area.  Later in September, the EPA granted an additional $260,000 for cleanup costs to both tribal and state authorities, including the Southern Ute Indian Tribe, the City of Durango, and La Plata and San Juan Counties. The EPA hopes that Gold King’s superfund designation will help not only the immediately-impacted areas surrounding the mine, but also downstream water users, including states like New Mexico and Utah as well as the Native American tribes of the Navajo Nation and Southern Ute Tribe. Colorado’s Department of Public Health and Environment mirrored these sentiments, has worked to facilitate collaboration between state and federal actors and community involvement.

Despite Superfund designation, environmental lawyer Thaddeus Lightfoot believes listing Gold King Mine will do little to resolve the ongoing lawsuits against the EPA. Most significantly for Lightfoot, the Superfund designation green-lights funding to investigate the release’s cause and to begin actual cleanup. Finally, the government’s role, according to Lightfoot, will help answer a long-debated question regarding the head of environmental cleanup in favor of the federal government.

The release also spurred awareness about inactive mine seepage and long-resisted cleanup. For instance, the Impacted Streams Task Force has plans to evaluate the draining mines inventory and, hopefully, prevent or reduce toxic drainage from inactive mines. Moreover, the town of Silverton and San Juan County have embraced the federal program, despite an argument that, through its slow-moving process, the EPA is holding the region hostage.

As of October 2016, Navajo Nation farmers adjacent to the Animas River have not received compensation for their losses associated with the Gold King Mine Release.  Navajo Nation President Russell Begaye said he believes the Navajo farmers deserve reimbursement and the San Juan River deserves cleaning, neither of which the federal government has done.  President Begaye called the inaction “shameful,” especially following two instances in which the U.S. Senate accepted responsibility for the release. In fact, Navajo Nation has filed suit against the EPA and other entities, alleging the release could have been prevented. Politicians have commented on the suit, including Arizona Congressman Raúl Grijalva, who believes the EPA should make efforts to mitigate the losses the release triggered.

During December 2016, the Navajo Nation filed a complaint against the EPA seeking over $160,000,000 in damages resulting from the Release. Navajo Nation claims the release injured the Navajo’s longstanding confidence on the San Juan.  This is the second lawsuit from Navajo Nation, the first being civil suits against mining companies for incurred response costs with the release. Navajo Nation’s Attorney General, Ethel Branch, commented that the release transformed their sacred river from a source of life into a threat to life. The Navajo complaint alleges the EPA knew Gold King was at risk to a blowout and failed to notify the Navajo residents for two days after the release. Moreover, the Navajo claim the contamination will continue to pollute the Navajo Nation and its resources.

The EPA announced January 13, 2017 that it would not reimburse residents—including the Navajo—for the spill. The Agency, in a press release, said that an independent claims officer ruled that the EPA and its actions leading up to the spill were protected under the Federal Tort Claims Act, which protects government actions that constitute a “discretionary function or duty” if done with due care.  Those who have filed claims, however, may challenge the EPA’s decision.

More than a year after the Gold King Mine spill, remediation efforts are ongoing, and metallic levels in the affected waters has returned to normal. Despite these environmental efforts, residents must bear their own individual costs associated with the spill. As long as individuals remain uncompensated, fully resolving the spill might become arduous and drawn out.

Connor Pace

Image: The Animas River between Silverton and Durango, Colorado. Wikimedia Commons User Riverhugger.

Sources:

Alysa Landry, Navajo Nation seeks $160 Million in damages for EPA spill, NAVAJO-HOPI OBSERVER (Dec. 27, 2016),  http://www.nhonews.com/news/2016/dec/27/navajo-nation-seeks-160-million-damages-epa-spill/.

Bruce Finley, EPA puts Gold King Mine, other Colorado sites on priority list and pegs acid muck flow at 5.4 m gallons a day, DENVER POST (Sept. 7, 2016), http://www.denverpost.com/2016/09/07/gold-king-animas-mining-sites-disaster-declaration/.

Bruce Finley, Gold King one year later: Colorado’s mustard-yellow disaster spurs plans for leaking mine, DENVER POST (Aug. 5, 2016), http://www.denverpost.com/2016/07/24/gold-king-mine-spill-animas-river-one-year-later/.

Darryl Fears, Colorado gold mine is one of EPA’s new Superfund pollution sites, WASH. POST  (Sept. 7, 2016), https://www.washingtonpost.com/news/energy-environment/wp/2016/09/07/colorado-gold-mine-is-one-of-the-epas-new-superfund-pollution-sites/?utm_term=.b6bb50d49f84.

Encouraging News from the EPA on the Gold King Mine, DENVER POST (Sept. 9, 2016), http://www.denverpost.com/2016/09/09/encouraging-news-from-the-epa-on-gold-king-mine/.

Kieran Nicholson, EPA awards $260,000 more in grants in wake of Gold King Mine spill, DENVER POST (Sept. 29, 2016), http://www.denverpost.com/2016/09/29/epa-grants-gold-king-spill/.

Chase Olivarius-Mcallister, Superfund: A dirty word to some in Silverton, DURANGO HERALD (Aug. 3, 2013 1:14 PM), https://durangoherald.com/articles/2026-superfund-a-dirty-word-to-some-in-silverton.

Navajo Nation Sues EPA Over Gold King Mine Disaster, INDIAN COUNTRY TODAY MEDIA NETWORK (Aug. 18, 2016), http://indiancountrytodaymedianetwork.com/2016/08/18/navajo-nation-sues-epa-over-gold-king-mine-disaster-165510.

Navajo President Slams EPA, NAVAJO POST (Oct. 3, 2016), http://navajopost.org/navajo-president-slams-epa/.

Sara Randazzo, Navajo Nation Seeks More Than $160 Million From EPA in Colorado Mine Disaster, WALL ST. J. (Dec. 5, 2016 7:09 PM), http://www.wsj.com/articles/navajo-nation-seeks-more-than-160-million-from-epa-in-colorado-mine-disaster-1480982978.

U.S. Dep’t. of the Interior, Bureau of Reclamation Technical Service Center, Technical Evaluation of the Gold King Mine Incident, https://www.usbr.gov/docs/goldkingminereport.pdf (last visited Feb. 9, 2017).

U.S. EPA, Frequent Questions Related to Gold King Mine Response, https://www.epa.gov/goldkingmine/frequent-questions-related-gold-king-mine-response (last updated Dec. 13, 2016).

Press Release, U.S. EPA, Press Releases and Updates for Gold King Mine Response, https://www.epa.gov/goldkingmine/press-releases-and-updates-gold-king-mine-response (last updated Jan. 13, 2017).

Federal Tort Claims Act, 28 U.S.C. § 2680(a) (2017).

 

 


Despite the recent above-average rainfall in Northern California, the state is currently in its fifth year of severe drought.  Although two of the state’s largest water reservoirs, Shasta and Oroville, have recently filled up to ninety-percent capacity, and heavy snowfall over the mountains has improved conditions in the northern part of the state, one fifth of California still remains in the deepest category of drought.

While experts have predicted that Southern California is in for a hot and dry winter—which is usually California’s wettest time of the year—La Niña conditions mean that Northern California could experience winter storms, which would allow for average or above-average snowfall in the Sierra Nevada mountain range.

In response to these anticipated conditions and water scarcity concerns, California is attempting to adapt its water laws not only to withstand the current drought conditions, but also to better prepare for future droughts.  Rather than focusing solely on how to get more water to their citizens, much of the efforts aim at revising outdated policies and addressing long-standing issues.

Calls for Change:  An Outdated System?

California water law is a hybrid of the prior appropriation system and riparianism. Although California water law recognizes both riparian and appropriative rights, the former is given priority over the latter. This hybrid system works best when there is an abundance of water and a smaller population.  However, with today’s warmer climate, drier conditions, and upwards of thirty-nine million residents currently living in California, many say that the state’s water allocation system is becoming outdated and inefficient.

Most water rights in California, including those held by municipalities and agricultural users, are appropriative water rights, rather than the senior riparian rights, because the property is not located near a river or stream. During times of drought, those with junior water rights have their ability to use water curtailed so that senior water right holders receive the share of water to which they are entitled.  There are a number of issues that stem from this “first in time, first in right” system, and residents are increasingly pushing courts and the state legislature to make some changes.

One issue exists between the agricultural sector, which owns a majority of the states senior appropriative water rights, and municipalities, that in most cases, were granted water rights later than agricultural appropriators and therefore have rights that are junior to those belonging to farmers and ranchers.  Critics of the state’s water allocation system argue that the inequality between “senior” and “junior” right owners impedes the state’s ability to efficiently allocate the scarce water supply.

Real Change: Conservation, Enforcement, and Public Records

This past year, for the first time in the state’s history, California implemented a statewide mandate restricting residential water use by twenty-five percent. Although there was backlash to imposing the restrictions, the state saw an overall improvement in the implementation of conservation measures and drought predictions. For example, the Metropolitan Water District of Southern California, which supplies the state’s largest city, Los Angeles, and twenty-five other cities and districts with water, expects to provide users with about three-fourths of their water supply. Additionally, the district plans on replenishing depleted underground reservoirs and setting aside more excess water for storage. However, despite these efforts to increase conservation, California lifted the restrictions this past June due to slight improvement in drought conditions. Since lifting the restrictions, urban water consumption rates rose nearly 10 percent from the previous year.

Although California’s urban water suppliers have complied with the water usage regulations, very few state agencies have agreed to penalize customers for using excessive amounts of water. Furthermore, due to California’s stringent public records law, utility companies do not have to disclose the names of the largest water users. During the recent drought, mega-users have used these public records laws to protect their identities from public scrutiny.

In response, the state has enacted SB 814, which requires water districts to enforce restrictions on excessive water use. Under this new law, agencies are now required to set limits on residential water consumption. Residents can pay fines of up to $500 for every 758 gallons of overuse. Furthermore, the names of violators will be made public. However, this law only takes effect when the state is in a drought emergency.

In addition, the state is attempting to tackle its water issues with The Open and Transparent Water Data Act (AB 1755). The legislation was enacted in 2016 and focuses on updating the state’s water information system by providing a more transparent and efficient system for managers to obtain more comprehensive water data.  Currently, all levels of governmental agencies collect such water data, which can be inefficient, and may also lead to inaccessible and incompatible data.  Under the new system, all new and pre-existing water datasets will be integrated on a statewide online water information platform to provide managers with fuller information on water transfers. Supporters of the bill see it as a critical step in ensuring the long-term sustainability of the state’s limited water supply.

By providing comprehensive data, this new legislation will also help with the implementation of California’s groundwater law, the Sustainable Groundwater Management Act.  In the past, California did not require water users to report their groundwater usage or restrict its use despite declining groundwater levels.  During times of drought, groundwater makes up for about sixty percent of the state’s water demands, and excessive pumping has caused the land in some regions of California to experience subsidence of up to ten feet.

Notably, researchers have just discovered a new source of groundwater that is approximately ten thousand feet beneath Central Valley. Although this is still a relatively new finding, residents have expressed concerns that pumping this water could exacerbate the already-existing issues with pumping groundwater. However, the state’s groundwater law requires users to establish groundwater sustainability agencies that will regulate manage and monitor groundwater pumping in the future, which may help to solve many of these problems.

In the coming years, California hopes to create a more efficient and effective way to allocate, regulate, and maintain the state’s scarce water supply. The newly enacted legislation is a first step in reaching the goal of getting out of the current drought and better preparing for the future.

                                                                                                            Alicia Garcia

Image: The Lake Sonoma marina in Northern California. Flickr user David McSpadden, Creative Commons.

 

Sources:

David Gom, NOAA’s Winter Forecast Says no Rain for you, Southern California, SOUTHERN CALIFORNIA PUBLIC RADIO, (Oct. 20, 2016), http://www.scpr.org/news/2016/10/20/65704/noaa-s-winter-forecast-says-no-rain-for-you-southe/.

Matt Stevens, Califonria’s Heavy Water Users Could Face Penalties if Drought Persists, L.A. TIMES, (Sept. 2, 2016), http://www.latimes.com/local/lanow/la-me-ln-water-wasters-20160831-snap-story.html.

Ellen Knickmeyer and Amy Taxin, Officials Maintain Conservation Message Despite California’s Drought Divide, CLAIMS JOURNAL, (Nov. 8, 2016), http://www.claimsjournal.com/news/west/2016/11/08/274794.htm.

Kirsten James, California’s New Water Data Law Will Have Far-Reaching Benefits, NEWS DEEPLY, (Oct. 11 2016), https://www.newsdeeply.com/water/community/2016/10/11/californias-new-water-data-law-will-have-far-reaching-benefits.

Tara Lohan, Legislative Update: 6 New California Laws Impacting Water, NEWS DEEPLY, (Oct. 20, 2016), https://www.newsdeeply.com/water/articles/2016/10/04/legislative-update-six-new-california-laws-impacting-water.

Mark Drew, Community Voices: New Legislation Key to Water Management, (Nov. 4, 2016), http://www.bakersfield.com/opinion/community-voices-new-legislation-key-to-water-management/article_8e655c02-1cdc-5f66-aab2-3b8683792477.html.

California Drought: Impacts and Solutions, http://www.californiadrought.org/drought/current-conditions/ (last visited Nov. 4, 2016).

Weston Phippen, California’s New Drought Rules, THE ATLANTIC, (May 10, 2016), http://www.theatlantic.com/national/archive/2016/05/california-water/482064/

Marr Stevens & Bettina Boxall, Some Emergency Drought Rules Might be Eased But Don’t Start Hosing Down Sidewalks, L.A. TIMES, (May, 2016), http://www.latimes.com/local/lanow/la-me-ln-water-conservation-20160509-story.html.

Kevin Haroff, The California Drought and Its Impact on State Water Law and Policy, MARTEN LAW, (July 28, 2015), http://www.martenlaw.com/newsletter/20150729-california-drought-state-water-law-policy.

Richard M. Frank, Another Inconvenient Truth: California Water Law Must Change, S.F. CHRONICLE, (Apr. 10, 2015), http://www.sfchronicle.com/opinion/article/Another-inconvenient-truth-California-water-law-6192703.php.

Kristin L. Martin, They Can Have My Hose When They Pry It From My Cold Dead Hands: When California is Faced With a Drought, Who Gets Water and Who Goes Without?, Texas Envt’l. Law Journal Vol. 47, (Apr. 25, 2016) http://dx.doi.org/10.2139/ssrn.2769640.

 


It is not present in the mountain streams, reservoirs, or water treatment plants, but it still may be lurking in many pipes in cities and residential spaces throughout the country that were built before 1950.

Although Denver Water has taken major steps to eliminate lead in the city’s drinking water, it is nearly impossible to target every existing lead pipe within households throughout the city. It would require excavating front and back yards leading up to Denver Water meters, and even  interior excavation if the source is not easily identified. Because this process is so intimate to the household space, the duty has fallen on the residential caretakers to test and evaluate the lead levels in their own personal drinking water. The issue many U.S. cities are facing is that residents are either uninformed or they wrongfully assume that their residence does not have lead piping. Denver Water has made strides in aiding customers in the regular testing of their water by giving out a free lead-testing kit to anyone who requests one, and then replacing any lead piping at no cost to the customer. Although the earth-shattering drinking water issues in Flint brought forth the lead scare in many cities in the past couple of years, this problem has been haunting Americans for more than a century.

Lead is one of the most dangerous neurotoxins known to man, causing health issues for Americans since the installation of lead water distribution pipes in the late Nineteenth Century. In 1900, more than seventy percent of the nation’s cities with populations greater than 30,000 residents established water distribution service lines through lead piping. Why would these early water piping pioneers choose lead over much cheaper substances such as iron or even copper to create these pipes? The answer seemed simple: lead lasts almost twice as long and is more pliable when crafting around existing structures. In the mind of lead manufacturers and public officials, the value of these pipes outweighed the potential health risks associated with their use.

In the 1920s many cities opted to halt the installation of lead pipes for water distribution. However, because the government did not federally mandate the movement and there was no concrete evidence against its use, installations continued. During this time, lead-skeptic physicians started to voice their unease, and a small sector of the medical community attempted to link the rise of lead poisoning in Americans to the growing underground network of lead pipes taking over the nation’s drinking water distribution. This “hunch” turned into a small battle with the Lead Industries Association (“LIA”) who was consistently pumping out positive propaganda in an effort to save face for the largest monetarily-valued asset of their industry: lead pipes for water service lines. The LIA and its backers dismissed the disputing physicians’ claims by alluding that the symptoms the lead poisoning victims faced, such as slowing growth in children, central nervous system defects, hearing problems, and even cancer, were actually scattered symptoms of similar diseases or sicknesses. They went further to state that lead poisoning tests were not well-developed and gave faulty results causing unnecessary fear.

It was not until the Safe Drinking Water Act of 1974 (“SWDA”) that the federal government decided there was indeed a concrete link between the poisoning and the pipes. This act mandated safe drinking water in general for the nation and handed the reigns over to the Environmental Protection Agency (“EPA”) to set the standards. In 1986, the EPA passed a series of amendments, one of which prohibits the “use of any pipe or plumbing fitting or fixture, any solder, or any flux, after June 1986, in the installation or repair of (i) any public water system; or (ii) any plumbing in a residential or non-residential facility providing water for human consumption, that is not lead free.”

With these new regulations, government officials began to hold meetings to discuss what they would mean for their cities. Many cities established plans to either eliminate—or find alternatives to—lead piping for water distribution. Not all cities were equally concerned about the danger lead posed, or if they were, economic factors were of bigger concern. The cost to deal with the lead-pipe infrastructure would put a huge dent in neighborhood budgets, creating a risk of bankruptcy for local governments.  Many officials brushed aside the concerns of lead piping as a “want” for the city, rather than a “need.”

The new regulations soon came to the attention of another group of federal agencies, and in 1991 the U.S. Centers for Disease Control and Prevention (“CDC”) expressed their concern for lead poisoning. The CDC proposed lowering the level for individual intervention to fifteen micrograms per deciliter (“µg/dL”) and implementing lead-poisoning prevention campaigns in places where children had blood lead levels (“BLL”) greater than ten µg/dL.

This stance from the CDC caused the EPA to step up and play an even larger role in the lowering of BLLs. They did so by passing the Lead and Copper Rule (“LCR”) in 1991. This rule established requirements for corrosion control treatment; lead service line replacement, and public education. Despite the rule’s good intentions, the American Water Works Association (“AWWA”) brought suit against the EPA claiming it did not give proper notice for the updates. They also claimed that a public government agency did not have the authority to tear up private property to replace lead service lines. The AWWA prevailed in court and the LCR regulations were ruled unenforceable until the EPA properly submitted it with amendments and reasonable time limits. These amendments included many concessions, the most notable being the permission of partial pipe replacements.

Although the EPA passed the amendments in an effort to compromise and accommodate the monetary issues many cities faced with the complete removal of lead pipes, this type of repair proves to be an even larger issue than the pipes already contaminating water below the surface. As cities came to find out, partial pipe replacements allow for the resting lead sediments at the bottom of the pipes to be shaken up and then distributed into the consumer’s water supply, increasing lead sediment in water by a significant amount. Another form of partial repair involves connecting old lead pipes to new copper pipes using brass fittings. This quick-fix can accelerate galvanic corrosion, thus releasing an increased amount of lead into the service pipes. Partial replacements have become the unknown death sentence to many U.S. cities that utilize this money-saving method to “fix” the issues they have with rising BLLs.

Around this time local governments began scrambling to replace piping or come up with quick-fix alternatives to their original efforts in order to avoid sanctions from the EPA. Yet many cities also realized that the EPA only brought formal actions —compliance agreements, administrative orders with or without penalties, or enforcement actions in court — on ten percent of the violations in 2015. This reduced the motivational momentum that many local governments initially felt after the LCR was first introduced. As a result, many cities did not think twice about opting for cheaper partial replacements instead of complete system overhauls, despite the dramatic increase of health risks. The dangers of this cost-saving gamble backfired became all to clear with the Flint water crisis in 2014, where as many as 12,000 children were exposed to highly toxic levels of lead through drinking water.

On the other hand, one city in particular, Madison, Wisconsin, took the public’s good health to heart and replaced all of the city’s lead service pipes between 2001–2011. The city described the replacements as “noisy, messy, and disruptive, but successful.” Although the process was all of the above, the city’s actions dramatically reduced the risk of lead contamination in drinking water, and their residents have nothing to say about the decade of torturous upgrade but “thanks.”

Many other cities are still battling the EPA’s tighter restrictions. The most recent of these restrictions is the Reduction of Lead in Drinking Water Act (“RLDWA”) established in 2011. This honed in on the definition of “lead-free” which was previously allowing “lead-free” items to be composed of eight percent lead. The EPA scaled this number back to 0.25 percent, and in that same act, they prohibited the use or introduction into commerce of “[P]ipes, pipe fittings, plumbing fittings or fixtures . . . used exclusively for non-potable services such as manufacturing, industrial processing, irrigation, outdoor watering, or any other uses where the water is not anticipated to be used for human consumption.” In 2013 the agency added fire hydrants to that list through the Community Fire Safety Act (“CFSA”).

Denver has more than 3,000 miles of water mains, and Denver Water crews install or replace an average of 60,000 feet of pipe per year. Each piping project is completely different because of the conditions at the project site, and it continues to be an arduous task to fully replace the city’s pipes inside and outside of the home. The long history of lead pipes contaminating cities’ drinking water proves that the replacement of pipes is an expensive and disruptive task for local and state governments. Unknowingly, American citizens are still drinking water with lead percentages unfit for human consumption. Today, the EPA, AWWA, and the CDC formally recognize the issue, and together they are taking small, but steady steps with local, city, and state governments for the ultimate removal of lead pipes in cities. These agencies continue to brainstorm ways to police cities and prevent BLLs from reaching levels above zero simply because of drinking water. 

Rebecca Spence

Image: The District of Columbia Water and Sewer Authority replacing lead piping along Irving Street NW back in 2008. Flickr user IntangibleArts, Creative Commons.

Sources:

Lead and Copper Rule, EPA, https://www.epa.gov/dwreginfo/lead-and-copper-rule (last visited Oct. 11, 2016).

Section 1417 of the Safe Drinking Water Act: Prohibition on Use of Lead Pipes, Solder, and Flux, EPA, https://www.epa.gov/dwstandardsregulations/section-1417-safe-drinking-water-act-prohibition-use-lead-pipes-solder-and (last visited Oct. 11, 2016).

Safe Drinking Water Act (SDWA), EPA, https://www.epa.gov/sdwa (last visited Nov 4, 2016).

Kenneth Gray, The Safe Drinking Water Act Amendments of 1986, Envir. Law Rep. (1986), http://elr.info/sites/default/files/articles/16.10338.htm (last visited Nov. 4, 2016).

Richard Rabin, The Lead Industry and Lead Water Pipes “A Modest Campaign,”98 Am. J. Pub. Health (2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2509614/ (last visited Oct. 10, 2016).

Arthur Delaney, Lots Of Cities Have The Same Lead Pipes That Poisoned Flint The Huffington Post (Jan. 28, 2016,12:40 PM), http://www.huffingtonpost.com/entry/lead-pipes-everywhere_us_56a8e916e4b0f71799288f54.

Basic Information about Lead in Drinking Water, EPA, https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-drinking-water (last visited Oct. 14, 2016).

Brian Maass, Denver Water Steps Up Lead Pipe Removal, CBS DENVER (June 13, 2016, 11:50 PM), http://denver.cbslocal.com/2016/06/13/denver-water-steps-up-lead-pipe-removal/.

Bryce Covert, Dangerous Levels of Lead Have Been Found in Water Systems Nationwide ThinkProgress (June 28, 2016), https://thinkprogress.org/dangerous-levels-of-lead-have-been-found-in-water-systems-nationwide-5e43d5169a5e#.v4h4otxzp.

Darryl Fears & Brady Dennis, One City’s Solution to Drinking Water Contamination? Get Rid of Every Lead Pipe. Washington Post (May 10, 2016), https://www.washingtonpost.com/national/health-science/one-citys-solution-to-drinking-water-contamination-get-rid-of-every-lead-pipe/2016/05/10/480cd842-0814-11e6-bdcb-0133da18418d_story.html

Flint Water Crisis Fast Facts, CNN (Oct. 17, 2016, 3:21 PM), http://www.cnn.com/2016/03/04/us/flint-water-crisis-fast-facts/index.html.

Pipe Replacement, Denver Water, http://www.denverwater.org/ConstructionProjects/PipeReplacement/ (last visited Nov. 9, 2016).

Request a Lead Test, Denver Water, http://www.denverwater.org/waterquality/watersafety/leadcopper/lead-test-request/ (last visited Nov. 4, 2016).

Sheila Kaplan & Corbin Hiar, How an EPA Project Backfired NBC Investigations (Aug. 8, 2012, 5:08 AM), http://investigations.nbcnews.com/_news/2012/08/08/13179335-how-an-epa-project-backfired-endangering-drinking-water-with-lead.

Tiffany Stecker, Drinking Water: Federal Law Makes Lead-Pipe Removal Anything But a Cinch E&E Publishing (July 7, 2016), http://www.eenews.net/stories/1060039790.


In Re: The Application of High Valley Farms, LLC (14CW3095)

Can a water user appropriate a water right under Colorado law in order to grow marijuana commercially?  This quandary is a matter of first impression before the state’s Division 5 water court.  The issue was first raised in August of 2014 when Basalt-based High Valley Farms, LLC filed a water court application in order to irrigate its marijuana plants as well as better protect this cash crop in times of drought.  High Valley Farms (“High Valley”) operates a 25,000 square-foot grow operation in the Roaring Fork basin in western Colorado.  The grow operation supplies a recreational marijuana store in downtown Aspen called Silverpeak Apothecary.

In order to claim a water right, a user must first put it to “beneficial use.”  Pursuant to Colorado statute 37.92-103(4), “‘[b]eneficial use’ means the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.”

As part of the application process, the Division 5 engineer, Alan Martellaro, submitted a Consultation Report to the Division 5 water referee, Holly Krisner Strablinzky, recommending against approval until High Valley addressed a number of concerns.  Among the issues Martellaro raised, High Valley needed to explain how its application shows the element of beneficial use in light of the requirement that an appropriation must be “lawfully made.”

In its response to the Consultation Report, High Valley’s attorney Rhonda Bazil argued that Amendment 64, the 2012 state constitutional amendment legalizing the consumption and sale of recreational marijuana, also legalized the cultivation of recreational marijuana, making High Valley’s proposed use lawful—and therefore beneficial—under state law.

In addition to Amendment 64’s statutory language regarding the legalization of marijuana cultivation, Bazil also pointed to federal policy by the Bureau of Reclamation (“BOR”) saying that—while it would not approve its own facilities or water to be used to by the Colorado marijuana industry—it would not prohibit the use of other water that merely passes through its facilities for these businesses to utilize.  The BOR instituted this policy in 2014, the same year High Valley filed its original application.  The BOR has since renewed its stance until May 2017. Bazil highlighted that her client’s proposed augmentation water would come from non-federal sources (Wolford Mountain Reservoir) and is thus consistent with the BOR’s policy.

Additionally, Bazil pointed to the McCarran Amendment, a 1952 law in which the federal government ceded its power to manage water rights to the states, arguing this law favors High Valley’s interpretation of “lawfully” because state law exclusively controls in water law issues and marijuana cultivation is legal according to the state constitution.

Bazil also argue that the state water engineer has previously approved of the use of water to grow marijuana plants on two different occasions: once in October 2014 for a well and once in March of 2015 for irrigation purposes.  In those two statements supporting the use of water for marijuana cultivation, the Colorado state engineer said that state officials should allow water rights holders to use their irrigation rights to irrigate any type of plant that is legal to grow under Colorado state law, including marijuana.

If water officials rule that growing marijuana fails to constitute a beneficial use, the decision could have widespread implications for Colorado’s entire cannabis industry, which is dependent on water.  Ultimately, Bazil cautions that an adverse decision could call into question the ability of Colorado marijuana grow operation without access to municipal water to grow plants.

But High Valley’s argument is not without some vulnerability.  For example, a recent state Supreme Court decision that works in High Valley’s disfavor is Coats v. Dish Network, LLC.  In this case, a paraplegic Colorado medical marijuana patient challenged the drug policies of his corporate employer, Dish Network, after being terminated for testing positive for marijuana use.  In this decision, the Court interpreted a “lawful” activity as one that must be legal under both state and federal law in the context of an employment statute.  Thus, even though the employee had a right to use marijuana medicinally under Colorado state law, the Court upheld the corporation’s decision to fire him because marijuana’s federal designation under the Controlled Substances Act precludes it from being a lawful use federally.  If the issue raised in High Valley’s application were to reach the state Supreme Court, the same rationale may be used to deny the applicant’s proposed use as not satisfying the lawful aspect of beneficial use under both state and federal law.

Most cannabis growers in Colorado have been using water in order to grow their marijuana plants without running into water law issues.  This is because these grow facilities most likely use municipal water, whereas High Valley is asking Division 5 to approve an entirely new water right.  The application includes approval for a groundwater water right, a surface water right, a water storage right, and a plan for augmentation and exchange.  The company has sought water rights for exchange and augmentation from two other water districts, in order to safeguard its ability to access water rights in times of scarcity.  Currently, High Valley has an existing domestic well on site and two irrigation ditches that already provide water to its operations.

In sum, water is a state resource and under the Colorado constitution, “[t]he right to divert the unappropriated waters of any natural steam to beneficial uses shall never be denied.”  However, the water right High Valley wishes to receive is for a novel purpose: growing state-legal, yet federally-illegal marijuana. Thus, whether Division 5 officials will deny the company its sought water rights remains unseen, but the decision could spur wide-ranging repercussions for Colorado’s entire marijuana industry.

Coincidently, the Roaring Fork Club, one of High Valley’s neighbors and an opposer in the grow operation’s water application, was also at the center of another significant Supreme Court decision on the limits of beneficial use.  In 2015, the Court held in St. Jude’s Co. v. Roaring Fork Club, LLC, the Court held that fly-fishing failed to constitute a beneficial use under the very same statutory definition High Valley is arguing over.  In that decision, the Court wrote that the club’s proposed “uses” of the water could not be considered a beneficial use because the only purpose its application provided was the unquantifiable subjective enjoyment of the club’s guests.   Thus, the club was denied a new appropriation of “aesthetic, recreation and piscatorial (fishing)” water rights for its private fly-fishing stream.  While Roaring Fork Club’s opposition statement does not touch on the beneficial use issue, it does argue that approving High Valley’s application could potentially injure its own vested and conditional water rights.

Currently, the final decision in High Valley’s application is pending even though the application’s initial filing occurred more than two years ago.  In High Valley’s two amended applications, there has been a repeated increase in the size of water right sought.  Originally, the farm wanted a right to use 2.89 acre-feet on a yearly basis from the Roaring Fork River as well as its on-premises well.  Most recently, however, the farm is seeing to use 9.24 acre-feet annually, more than three times the original amount.

As of writing, the Division 5 referee has postponed a planned October status conference in anticipation of another Consultation Report from the division engineer.  As soon as this report is submitted, both High Valley and the opposers will each have thirty days to respond, respectively. Then the referee will schedule the status conference. When a ruling is eventually issued regarding the application, if High Valley’s requested water right decree is denied, the company can appeal the decision to the water court judge. Then, once the water court judge makes a determination, that eventual ruling could also be appealed directly to the Colorado Supreme Court.

Overall, the issue High Valley Farms application raises is an important one, and not just for the Colorado marijuana industry. As other states are legalizing marijuana for medical and recreational uses, those regulatory regimes could also implicate water law issues. Decision-makers in those states are surely looking to this eventual decision as an example in determining how legalized marijuana might fit into their particular water law frameworks.

Kathleen (K.C.) Cunilio

Image: Flickr user Aram Vartian, Creative Commons.

Sources:

Colo. Const. art. XVI, § 5, 6.

Colo. Rev. Stat. Ann. §37-92-103(4) (West 2016).

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

St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015).

Brent Gardner-Smith, Silverpeak owner applies for water rights for pot greenhouse, ASPEN JOURNALISM (Oct. 14, 2014), http://aspenjournalism.org/2014/10/14/silverpeak-owner-applies-for-water-rights-for-pot-greenhouse-near-basalt/.

Brent Gardner-Smith, Basalt water case could affect state’s pot industry, ASPEN JOURNALISM (Feb. 8, 2016), http://aspenjournalism.org/2016/02/08/basalt-water-case-could-%E2%80%A8aff ect-states-pot-industry/.

Brent Gardner-Smith, A hazy legal question lingers over water rights for Basalt marijuana facility, ASPEN JOURNALISM (Sept. 7, 2016), http://aspenjournalism.org/2016/09/07/a-hazy-legal-question-lingers-over-water-rights-for-basalt-marijuana-facility/.

Allen Best, Cannabis in Colorado, water rights and federal law, MOUNTAIN TOWN NEWS (Feb. 21, 2016), http://mountaintownnews.net/2016/02/21/4076cannabis-in-colorado/.

Charles Bethea, High Times with Aspen’s Cannabis Kingpin, OUTSIDE (Mar. 4, 2016), http://www.outsideonline.com/2059671/high-times-aspens-cannabis-kingpin.

Bureau of Reclamation, Reclamation Manual (Temporary Release): Use of Reclamation Water or Facilities for Activities Prohibited by the Controlled Substances Act of 1970, PEX TRMR-63 (May 16, 2015), http://www.usbr.gov/recman/temporary_releases/pectrmr-63.pdf (last visited Nov. 8, 2016).

Resp. Am. Summ. Consultation, In Re: The Application of High Valley Farms, 14CW3095 (Nov. 13, 2015), https://www.documentcloud.org/documents/3101645-2015-11-13-13-39-33-Response-to-Amended-Summary.html#document/p1/a317097 (last visited Nov. 8, 2016).