In July of 2017 the Four Corners news program on the Australian Broadcasting Corporation network aired an investigative report that sent shockwaves to the very top of the Australian government. The report questioned the implementation of the ambitious Murray-Darling Basin Plan, and alleged that rogue irrigators had illegally pumped vast quantities of water dedicated under the Plan for in-stream environmental flows and used it instead to grow cotton. Scandal erupted in the aftermath, with calls from opposition leaders and advocacy groups for independent investigations and filing of criminal charges. In the months since, critics have continued to raise serious questions about the future of water resource management and environmental protection in Australia.

Background

The Murray-Darling River Basin is a major watershed that covers roughly one-seventh of the landmass of Australia, running through the states of New South Wales (“NSW”), Victoria, the Australian Capital Territory, Queensland, and South Australia. Much of Australia’s agricultural industry is located along the Murray-Darling, along with significant populations that depend on the rivers for their water supply. The rivers and streams in the Basin support a large and complex ecosystem of wildlife. Aboriginal peoples in the region have depended on the waters for their traditional subsistence and cultural practices since prehistoric times, and some aboriginal communities still maintain their connections to the area.

In the aftermath of the 2002-2009 Millennium drought, Australian leaders in the public and private sector conceived of the Murray-Darling Basin Plan as a sustainable way to respond to the many environmental, economic, and resource management challenges facing the region. After many years of wrangling, its approval and implementation was meant to usher in a new era of sustainability. Australian taxpayers spent over thirteen billion dollars (AUD) to purchase water rights from license holders and reserve that water to restore healthy environmental flows.

Instead, public outrage has mounted in response to allegations that cotton farmers diverted vast amounts of water meant for instream flows into private storage reservoirs. Large-scale consolidation of irrigation operations and the influence lobbying has had on water policy have contributed to a public perception that the big players have rigged the system against the interests of small stock growers and rural communities.

Although the Murray-Darling Basin Plan is a national initiative, state governments retain much of the authority for implementing policy within their borders with local pumping regulations. On the Barwon river (a major tributary in the Murray-Darling Basin) two large irrigation firms hold over seventy percent of water use licenses. Those firms lobbied the NSW government successfully for changes to pumping regulations that actually enabled them to divert greater amounts of water than they had been allowed before the Plan. Critics allege that irrigators have also taken advantage of a lax compliance and enforcement regime to take even more water illegally.

What emerged from the Four Corners report was a picture of a crucial government initiative, undertaken in the public interest, but undermined by agency capture at the policy level, lack of adequate compliance measures, and weak enforcement.

Image: A map of the Murray-Darling River Basin. Wikipedia user Martyman, Creative Commons.

Agency Capture

Even before implementation, the Murray-Darling Basin Plan has faced strong pushback from the country’s agricultural industry. The central conflict at the heart of the Plan has been how much water to reserve for environmental flows. Scientists and environmentalists originally pushed for as much as 7600 gigaliters (a GL is roughly 810 acre-feet) to be devoted to the environment, while agribusiness interests strenuously objected to what they view as excessive withdrawals of water from irrigation uses, and warned of dire economic consequences for the region if their industry loses access to necessary water supplies. Ultimately, the Murray-Darling Basin Authority settled on a compromise of a minimum of 2700 GL reservation (and an additional 450 GL if it can be shown that using the additional water would not have adverse economic impacts).

Despite the compromise, the concerns of agribusiness have continued to find support in the highest offices of government. For example, the Four Corners program aired a recording of a secret conference call in which a senior water official inappropriately promised to provide irrigation lobbyists with confidential government documents. An Australian environmentalist told ABC that they struggled to obtain government documents during that same timeframe from the NSW government through freedom of information laws. This evidence that a top NSW water manager was offering special access and information to the industry his office is responsible for regulating underscored the perception of a rigged system. In the months since, NSW ministers referred the official to an independent state watchdog agency for investigation, and he has since resigned.

Later, in response to the revelations by Four Corners program, Deputy Prime Minister Barnaby Joyce described the investigation to a meeting of irrigators as a “calamity” that amounted to a conspiracy by environmentalists to take more water from agriculture. At that same community meeting he subsequently told irrigators “we’ve taken water, put it back into agriculture, so we can look after you and not have the greenies running the show.” Potential bias in the national government, along with the previously mentioned lobbying influence at the state level, and the limited power of the Murray-Darling Basin Authority combines into a particularly potent atmosphere for agency capture.

 

Compliance & Enforcement

Despite the fact that the government moved to implement the Murray-Darling Basin Plan, given the heavy influence of irrigators at the policy level, the modest plan to reserve even 2700 GL of water for environmental purposes remained an ambitious proposal. Unfortunately, as documented in the Four Corners report, irrigators diverted much of that water before it could achieve its ecological purpose. Exactly how much they diverted, and who exactly diverted it, has been very difficult to determine. The Murray-Darling covers a vast territory of extremely rugged Australian outback, and it is not surprising that imposing a compliance regime has been a difficult task over such a widespread rural area. Clearly, the current measures have not been adequate. Regulations require that irrigators maintain meters, or keep detailed logbooks, to measure their water usage. However, as the Four Corners report revealed actual compliance with those requirements was haphazard. Jaime Morgan, the former manager of the NSW Strategic Investigation Unit told ABC’s reporters about numerous metering violations—including everything from bad maintenance to outright sabotage—as well as shoddy and falsified recordkeeping. His assessment was that “the entire river system” within NSW lacked adequate compliance and enforcement with existing water legislation. No matter how good or bad a policy initiative the Murray-Darling Basin Plan was in its conception, without strong compliance measures in place, it is vulnerable to fraud.

On top of the diluted policy and compliance failures, lax enforcement also featured prominently in the Four Corners story. Again, the sheer scale of territory encompassed by the Murray-Darling has presented an enormous challenge to enforcement programs that must operate with limited resources to keep tabs on many remote and isolated operations. In addition to setting pumping regulations, each state government is also primarily responsible for the enforcement of its water policy in accordance with the Basin Plan. Unfortunately, this state-by-state approach has lent itself to cross border conflicts of interest, with state governments pointing fingers and shifting blame despite widespread problems and shared consequences. Even worse, Four Corners reported cases where investigations that did reveal potential fraud were undermined by agency leadership. The same former investigator who found numerous compliance and recordkeeping violations later had his investigation reports buried and his entire unit reassigned. Phil O’Conner, mayor of the riverside community of Brewarrina, NSW, described collecting video evidence of irrigators pumping during prohibited times, only to have those reports ignored by NSW enforcement agencies.

 

Moving Forward

Analysis of the mistakes made implementing the Murray-Darling Basin Plan can offer important lessons to policymakers elsewhere. If Australia can respond to the current challenges successfully, their solutions may be a model that can help address similar problems here in the United States. Likewise, Australians may also look to the many varied approaches of their American cousins in different states as they continue to reform their system.

What sets the Murray-Darling Basin Plan apart from the local efforts of comparable American water programs is a matter of sheer scale: at 1558 miles long, the Murray River is longer than the mighty Colorado’s 1450 miles. Nevertheless, the two river systems share much in common in their social, agricultural, and economic significance. Before the Basin Plan, the Murray-Darling was plagued by a litany of problems that also confront the Colorado River: over allocation, persistent drought, loss of biodiversity, growing demand from expanding urban populations. Australia’s response was a project of massive nationwide ambition. As difficult as it has been to see that project through, one need only look to the famous “bathtub ring” encircling Lake Mead to see how the problem of managing such a vast river system during persistent drought has challenged American water resource planning. One can imagine the complexity of implementing a hypothetical Colorado River Basin Plan to restore environmental flows, and perhaps forgive some of the Murray-Darling Plan’s growing pains.

Still, it is clear that change is necessary for the Murray-Darling recovery to be a success. The question is what form that change should take? Like in the American west, Australians long ago rejected their English forefathers’ riparian common-law approach to water rights. Unlike states like Colorado, however, the Australians established a comprehensive administrative regime for granting water licenses, and did not recognize priority according to “first in time, first in right.” Instead, agencies granted water use licenses based on the principle that the public owned water resources collectively. Their system has continued to evolve in the years since NSW adopted its Water Act of 1912, a first of its kind law that became a model for other Australian states. Indeed, some observers have considered Australian water law to be quite progressive in balancing elements of certainty found in the prior appropriation system, and elements of communal equity characteristic of riparianism. Australian law enshrines the concept of water as a natural resource owned by the public, and that it should be managed according to the public interest. Indeed, the passage of the Basin Plan at all—much less with widespread public support—argues for the strength of the public interest ethic in Australia.

Unfortunately, the administrators responsible for protecting that public interest seem to have been unwilling or unable to do so, as shown by the damning Four Corners report. One potential solution to overreliance on compromised agencies would be to enable members of the public more power to litigate their interests against alleged water thieves. Rather than relying exclusively on a cumbersome and overburdened bureaucracy to bring enforcement actions, robust citizen suit provisions or private rights of action could be brought to bear against bad actors. Disputes over the kinds of violations shown by Four Corners often arise in Colorado, especially in times of scarcity. When harsh words, brandishing shovels, or a call to the water commissioner doesn’t resolve those conflicts a lawsuit before a water court is sometimes necessary. In the Four Corners report an interviewee described industrial water users who had installed new larger pipes or pumped water during prohibited times. These would be textbook cases for litigation challenging a change in diversion, or diverting out of priority to the injury of other water rights.

Thankfully, in the months since the Four Corners report there have been signs of progress. Federal and State governments have undertaken independent investigations, one of which published an explosive report on corruption in NSW. In Queensland, police raided a large irrigation operation accused of misappropriating government infrastructure funding. The Australian Parliament has convened hearings amid calls for urgent reform. However things turn out in the Murray-Darling—whether the result is an administrative shakeup or a more fundamental reform—the process of implementing the Basin Plan will move forward. Its success, or failure, will continue to inform observers around the world, offering important lessons—of what to do or, maybe, what not to do.

            Arthur Sayre

Image: A shoreline shot of the junction where the Murray and Darling Rivers meet in New South Wales, Australia. Flickr user Mike Russell, Creative Commons.

 

Sources

Four Corners: Pumped (Austl. Broad. Corp. television broadcast July 24, 2017), http://www.abc.net.au/4corners/pumped/8727826.

Media Release, Malcolm Turnbull, Prime Minister of Australia, Murray Darling Basin-Wide Compliance Review Announced (July 30, 2017), https://www.pm.gov.au/media/murray-darling-basin-wide-compliance-review-announced.

A Plan for the Murray Darling Basin, Murray-Darling Basin Authority, https://www.mdba.gov.au/basin-plan/plan-murray-darling-basin (last visited Nov. 11, 2017).

Sheradyn Holderhead, Review ordered into Murray-Darling Basin Plan water use after allegations of misuse, Advertiser (July 30, 2017 3:52 AM), http://www.adelaidenow.com.au/news/south-australia/review-ordered-into-murray-darling-basin-plan-water-use-after-allegations-of-misuse/news-story/1e21db8fe802fb6c2cb2d5e1f7d3517d.

Suzanne Milthorpe, The Murray-Darling basin scandal: a symptom of how we fail to protect our environment, Guardian (July 28, 2017 2:00 PM), https://www.theguardian.com/commentisfree/2017/jul/29/the-murray-darling-basin-scandal-a-symptom-of-how-we-fail-to-protect-our-environment.

Aboriginal heritage and culture, Murray-Darling Basin Auth., https://www.mdba.gov.au/discover-basin/people/aboriginal-heritage-culture. (last visited Nov. 11, 2017).

John Vidal, Australia suffers worst drought in 1,000 years, Guardian (Nov. 8, 2006 6:07 AM), https://www.theguardian.com/world/2006/nov/08/australia.drought.

Peter Hannam & James Robertson, Former NSW water minister, top bureaucrat to be referred to ICAC after ABC investigation, Sunday Morning Herald (July 5, 2017), http://www.smh.com.au/environment/nsw-ministers-call-for-urgent-overview-of-water-issues-lame-acf-says-20170724-gxhyb4.html.

Murray-Darling Basin: NSW’s most senior water bureaucrat resigns over corruption allegations, Austl. Broad. Corp. (Sep. 15, 2017 3:47 AM), http://www.abc.net.au/news/2017-09-15/murray-darling-basin-nsw-top-water-bureaucrat-resigns/8951258.

Tim Iggulden, Murray-Darling plan doomed to fail unless more water earmarked for conservation: scientists, Austl. Broad. Corp. (June 25, 2017 1:04 PM), http://www.abc.net.au/news/2017-06-26/murray-darling-basin-plan-failing-environment-scientists-say/8650270.

Peter Ker, Scientists push for strong plan on Murray-Darling, Age (Dec. 1, 2010), http://www.theage.com.au/national/scientists-push-for-strong-plan-on-murraydarling-20101130-18fbe.html.

Murray-Darling Basin Plan investigation a plot to ‘take more water off you’, Barnaby Joyce says, Austl. Broad. Corp. (July 27, 2017 1:03 AM), http://www.abc.net.au/news/2017-07-27/murray-darling-basin-plan-investigation-a-calamity,-joyce-says/8749620.

Marty McCarthy, SA water minister accuses NSW of water theft ‘cover up’ as Basin states trade blows, Austl. Broad. Corp. (Oct. 25, 2017 5:09 PM), http://www.abc.net.au/news/rural/2017-10-09/murray-darling-basin-states-bump-heads-as-sa-government-defends/9030434.

Abraham Lustgarten, How the West Overcounts Its Water Supplies, N.Y. Times (July 17, 2015), https://www.nytimes.com/2015/07/19/opinion/sunday/how-the-west-overcounts-its-water-supplies.html.

Anna Vidot, What is the Murray-Darling Basin Plan and why are we still talking about it?, Austl. Broad. Corp. (June 25, 2017 5:34 PM), http://www.abc.net.au/news/2016-11-21/what-is-the-murray-darling-basin-plan/8043180.

Allen Best, Peering into the bottom of the water barrel, Denv. Post (Apr. 19, 2016 4:34 PM), http://www.denverpost.com/2015/12/11/best-peering-into-bottom-of-the-water-barrel/.

Yee Huang, A Tale of Two Countries: Lessons from Australia for Water Law in the United States?, Ctr. Progressive Reform: CPRBlog (Mar. 22, 2010), http://www.progressivereform.org/CPRBlog.cfm?idBlog=860CB207-02D4-BB7A-B891B40E9ECFF220.

Nancy Lofholm, Tempers flaring in Colorado over diminished irrigation water, Denv. Post (Apr. 29, 2016 9:58 PM), http://www.denverpost.com/2013/07/20/tempers-flaring-in-colorado-over-diminished-irrigation-water/.

Sarah Gerathy, Murray-Darling Basin: ‘No change is not an option’ says damning report on alleged NSW water corruption, Austl. Broad. Corp. (Sep. 11, 2017 12:50 AM), http://www.abc.net.au/news/2017-09-11/damning-report-on-alleged-corruption-by-nsw-water-official/8892208.

Kerry Brewster, Murray-Darling Basin: Goondiwindi cotton farm raided over alleged misuse of Commonwealth funding, Austl. Broad. Corp. (Oct. 25, 2017 7:04 PM), http://www.abc.net.au/news/2017-10-24/murray-darling-basin-alleged-fraud-goondiwindi-cotton-farm/9080280.

Sophie Wainwright & Declan Gooch, Murray-Darling Basin: Senate hearing on water reform in far west NSW told ‘your heartland is dying’, Austl. Broad. Corp. (Nov. 2, 2017 3:35 AM), http://www.abc.net.au/news/2017-11-02/urgent-calls-for-water-reforms-senate-hearing-broken-hill-theft/9111510.


Editor’s note: This post is part of a two-part series that looks at the potential effects of removing or decommissioning Glen Canyon Dam.  Part II, which focuses on the environment considerations, will be published in the fall.

Over the past few years, voices calling for the removal of one of the West’s biggest reservoirs have gotten louder. And while proponents—including scientists, activists, journalists, and government officials—have cited everything from ecology to economics in their quest to decommission Glen Canyon Dam in northern Arizona and restore that part of the Colorado River, very little has been said about the impacts such an action would have on the house-of-cards-like network of compacts, agreements, and obligations comprising the “The Law of the River.

While many of the arguments made by proponents are worth discussion in this era of changing climates and changing values, if they want to make any progress turning this dream into a reality, they will first have to solve the Gordian knot of legal issues revolving around the Colorado Compact.

Dam commissioning has been a hot topic around the West for decades, and as larger dams like the Glines Canyon Dam in Washington start come down, the restoration of rivers is happening at an increasingly rapid pace. Where reservoirs once stood, river life has been restored as native species repopulate and vegetation sprouts on old lake beds. Since then, both Utah and Oregon made plans to remove dams in their states: Mill Creek Dam and Cline Falls Dam, respectively. States and environmentalists are assessing more dams to be dismantled or decommissioned, including one of two larger dams along the Colorado River.

 

“An American Nile”

The Colorado River runs 1450 miles from its headwaters in Colorado’s Rocky Mountains to the Sea of Cortez in Mexico and drains an area of nearly 250,000 square miles. Seven states and Mexico rely on this water and over the years have developed a complex array of agreements dividing it up.

There are fifteen dams on the main stem of the Colorado River, with hundreds more on its many tributaries. Two of these dams, the Hoover Dam and the Glen Canyon Dam, hold back the nation’s two largest two reservoirs. The Glen Canyon Dam (the “Dam”) was authorized in 1956 under the Colorado Storage Act for storage and hydroelectric power, turning the once wild and flowing Colorado River into the placid Lake Powell. As part of the aforementioned agreements, the Upper Basin has an obligation to deliver a certain amount of water from its basin to the Lower Basin. Instead of relying on the natural flow of the river, this reservoir serves as a water savings account for the Upper Basin so they can store up water in wet years to make sure they meet their delivery obligations to the Lower Basin.

However, over the years many things have changed for the reservoir. Support for keeping Lake Powell is beginning to sway, and critics are increasingly arguing that it inefficiently stores water, causes ecological damage to one of the West’s most beautiful natural wonders, and does not generate the economic value through hydropower it once did. With Lake Mead and Lake Powell below half their capacity—their “bathtub” rings serving as a constant reminder of how full they each once were—and drought conditions happening in the West, many are saying it’s time to let go of the Glen Canyon Dam for good. Scientists, ecologists, state politicians, and more are calling for the Dam to be deconstructed before it’s too late.

Articles upon articles illustrate the environmental need for letting go of the Dam, lamenting at the natural wonders lost by the plugging up of the Colorado River. One of the biggest voices calling for the dismantling of the Dam is the former Bureau of Reclamation head Daniel Beard. Beard calls the dam a “deadbeat dam,” the title of his book calling for the dismantling of dams across America. Beard writes that instead of viewing the current drought conditions and the decreased levels of both Lake Mead and Lake Powell as a doom-and-gloom situation, that the Bureau of Reclamation and the politicians for each state should look at the situation as a chance for innovative thinking. As part of this strategy, Beard calls for the removal of Glen Canyon Dam and the draining of Lake Powell: let the Colorado River fill up Lake Mead instead bypassing the no longer useful Lake Powell.

While all of these issues are worth discussing in regard to the Glen Canyon Dam coming down or being decommissioned, one thing all of these articles and books seem to overlook is the very real legal obstacles to such a major action. This includes the effect the lack of a reservoir would have on the 1922 Colorado River Compact. Additionally, removing or decommissioning the dam would likely require an impossible amount of political will in Congress. Currently the Glen Canyon Dam produces 4.5 billion kilowatt-hours annually, supplying electricity to nearly six million customers throughout the West, and brings millions of tourists who pump nearly four hundred million dollars into the region each year. But if Congress did decide to one day decommission or tear down the Glen Canyon Dam, the legal ramifications of such a decision would need to be discussed before action could be taken. This article will discuss these ramifications through the perspective of amending the Colorado River Compact of 1922.

 

The Law of the River

In the early 1900s, as the West developed, upstream states like Colorado watched in fear as the populations of downstream states like California began to boom. After years of legal disputes and blocking congressional funding to California projects, Delph Carpenter, who represented Colorado’s interests in the landmark Wyoming v. Colorado interstate water dispute before the U.S. Supreme Court, recommended using the Compact Clause of the U.S. Constitution to create a treaty between the Western states to divide up the Colorado River. In 1922 seven Western states came together to negotiate, and ultimately sign, the Colorado River Compact (“Compact”).

The Compact created two basins: the Upper Basin (Wyoming, Colorado, New Mexico and Utah) and the Lower Basin (Arizona, California and Nevada). The Compact apportions 7.5 million acre-feet per year to each Basin and created a delivery point between the two basins at Lees Ferry in Arizona (sixteen miles below Lake Powell). Under the terms of the Compact, the Upper Basin must “not cause the flow of the river at Lees Ferry to be depleted” below seventy-five million acre-feet over any period of ten consecutive years. If for any reason the flow at Lees Ferry is ever less than this, the Upper Basin states must curtail their use of their post-1922 compact water rights until the flow returns to Lees Ferry.

In the years following its signing, the Compact has given rise to a large number of additional compacts, agreements, contracts, court decisions, decrees, legislation, and regulations, collectively known as “The Law of the River.” This complex network of obligations has helped further allocate water to states within each individual basin as well as to non-state stakeholders including Native American tribes and Mexico.

If decommissioning or dismantling the Glen Canyon Dam occurs and the waters of the Colorado River are allowed to flow freely downstream, questions about the use and ownership of the water will surface. For example, questions may arise regarding how much water is being allowed to freely flow from one basin to the next and if that amount constitutes an over delivery by the Upper Basin to the Lower Basin based on the Compact numbers. Without a barrier or a way to pump water upstream if too much is delivered downstream, the Upper Basin, without Glen Canyon Dam, opens itself up to many legal risks. Both basins would then need to work out an agreement or a system to replenish the Upper Basin with water. Potential solutions could include a pumping system to deliver water back upstream, a series of new dams, the sharing of the Lake Mead reservoir, and/or a new distribution point between the two basins. Since creating a pumping system could become troublesome and cost millions of dollars, coupled with the call to remove dams from streams and rivers, one likely solution is to share the lower reservoir, which would then change the distribution point as listed in the Compact. In order to accomplish this, stakeholders using the Colorado River would need to amend The Law of the River in some manner. This could include amending the Colorado River Compact of 1922, which has not been amended in nearly one hundred years.

In order to amend or terminate the Compact, the signatory governors of each state and the President of the United States must appoint representatives to renegotiate the terms of the Compact. These new terms must be ratified by the states and by Congress. The question is: (1) what amendments would the states need to make to the Compact and further, (2) what adverse legal issues could arise after these amendments are made? The next two sections will explore these topics.

 

The Potential Amendments of the Compact

As of right now, the Upper Basin uses Lake Powell as their surplus reservoir, a protection mechanism for dry years. The Upper Basin stores all the incoming flow of the Colorado River and then releases the perfect amount to meet their obligations under the Compact. In wet years, the Upper Basin states can store more water or reallocate the water back up for use. In dry years—when the natural flow is not enough to meet the obligation—the Upper Basin can tap into that water storage to give the amount owed to the Lower Basin.

Without the protection Lake Powell offers, Upper Basin states run the risk of not being able to maintain the proper flow of water at the distribution point, subjecting them to possible lawsuits—or worse, curtailments of water their cities and residents have grown to rely on. The risk of curtailment is not an option for these states.

Furthermore, the Upper Basin also runs the risk of letting too much water pass downriver in times of plenty. With no way to capture it before it passes Lees Ferry, Upper Basins states have no way to reallocate that water back up to its users, and, maybe worst of all, risk giving the Lower Basin more than its agreed share of the Colorado River one year, while still risking curtailment the next. Therefore, any proposal to decommission Glen Canyon Dam would need to include a solution for how the Upper Basin can manage its rolling delivery obligations to the Lower Basin in the face of climate variability and increased demand throughout the West.

 

Consolidating storage

One idea that has generated a lot of buzz in the last few years is the consolidation of the two reservoirs into one, allowing the other reservoir to return to its natural state. Perhaps the most famous variation of this proposal is the Fill Mead First campaign. First put forth by the Glen Canyon Institute a few years ago, the idea has recently resurfaced into the national dialog about Lake Powell’s future. Under this plan, Glen Canyon Institute proposes moving water from Lake Powell down into Lake Mead in stages, culminating at a point where all the water is stored in Lake Mead and the natural flow is allowed to bypass Glean Canyon Dam unimpeded.

Proponents argue that combining storage would save water lost to evaporation or to seepage through Glen Canyon’s porous sandstone walls. Supporters of removing the Glen Canyon Dam argue that Lake Mead would be the better choice for both basins to use for storage because Lake Mead’s walls are made of volcanic rock thus preventing seepage.

Supporters of using Lake Mead also argue that the Colorado River would be permitted to flow more naturally, allowing for the nature of Glen Canyon and the Grand Canyon to regenerate. Many native species that relocated to the river’s tributaries could return to Glen Canyon and, with the flow of sediment through the Grand Canyon, many natural beaches would reappear along the banks of the Colorado. Furthermore, Glen Canyon Dam was also not necessary or vital to the 1922 Colorado River Compact since the Dam came into existence with the Colorado River Storage Project. Therefore, the removal of the Dam would not necessarily affect the fulfillment of any compact obligations by either basin, but would simply restore a status quo that existed for decades after the ratification of the Compact.

Some experts, however, have since pushed back on the argument that merging reservoirs would not result in any substantial water savings. Environmental groups also disagree as to whether Fill Mead First is ready for prime time given the questionable science, not to mention the political and legal realities of the Southwest and the economic dependencies on the power and tourism money Lake Powell and the Dam bring to the area.

The biggest problem, of course, is the fact that the Upper Basin’s storage would no longer be above the delivery point to the Lower Basin. Keeping the delivery point below the Upper Basin’s storage makes a certain kind of intuitive sense. By saving water in the reservoir, the Upper Basin states ensure they never give too much water to the Lower Basin states in wet years and do not run the risk of falling below their 10-year commitment of water to the Lower Basin states.

To resolve this, the basins could try a number of things. First, there could be some new agreement that the Upper Basin could “bank” its water in Lake Mead below the delivery point—an issue that raises its own legal questions within the Compact. Second, the Upper Basin could be forced to build a series of smaller dams further up on the Colorado’s many tributaries to compensate for the loss of Powell. Third, the Basins could renegotiate a new delivery point.

While this plan to reduce evaporation and seepage may seem like a no-brainer, some experts say the science behind Fill Mead First’s agenda is not actually as simple as proponents might wish. First, there are arguments that both the effect of moving the water downstream to Lake Mead will not change the amounts of water lost to evaporation because water will still be present where Lake Powell currently sits and will still be subject to the effects of evaporation. Second, in recent years certain studies found that the amount of water lost to seepage is on the decline, suggesting that the sandstone walls are so saturated with water that the Lake is practically “armored” from losing any more water to the canyon walls. Another argument against Filling Mead First is that while it may seem like a good idea to combine the reservoirs, the reality is that other Upper Basin Rivers will be dammed to create reservoirs acting as a savings account for the Upper Basin in times of drought and water shortages. The likelihood that the Upper Basin would allow for their safety net to be completely removed is low and a new series of dams would pop up changing the environments around other rivers that feed into the Colorado River. However, if the Upper Basin were to allow a one-reservoir scenario to occur, other negotiations with the Lower Basin would need to take place including negotiations on designating a new distribution point.

 

New Distribution Point

In moving from a two-reservoir to a one-reservoir scenario, one option the Basins might try is to renegotiate the location of the distribution point between the Upper and Lower Basins. The Compact currently mandates the current distribution point between the Upper and Lower Basin states is at Lee’s Ferry, Arizona. Lee’s Ferry sits between Lake Powell and Lake Mead as a half way marker of the River’s beginning and end. This halfway point allows both Basins the opportunity to store water and generate power. If the Upper Basin loses their key reservoir and has to share storage space in Lake Mead, one potential delivery point might be the Hoover Dam.

However, since Lees Ferry is written into the Compact, all seven states would need to renegotiate a new distribution point. This renegotiation would involve not only a renegotiation of the Compact, but would need to tackle some other thorny questions as well. For example, because Arizona is technically located in both basins given the placement of the Glen Canyon Dam, it also has a right to water in both basins. By erasing the Dam and moving this distribution point to the Hoover Dam, Arizona’s placement in the Lower Basin may need to change. But given Arizona’s contentious role in the original Compact, any attempt to remove Arizona from the Lower Basin, renegotiate their water rights in either basin, and take away the Glen Canyon Dam may become a protracted—and maybe impossible—legal battle. Specifically, by changing the distribution point to the Nevada/Arizona border a decision would need to be made as to which basin Arizona belongs in. Either Arizona becomes part of the Upper Basin, or Arizona stays part of the Lower Basin.

If Arizona were to become part of the Upper Basin, the Upper Colorado River Basin Compact of 1948, the Boulder Canyon Project Act of 1928 (which allocates the Lower Basin’s water to the three lower basin states), and the 1922 Compact would all need to be amended to reflect this reassignment. For example, under the Boulder Canyon Project Act of 1928, Arizona’s gets 2.8 million acre-feet per year, and if Arizona were to be included in the Upper Basin, that water would have to be reallocated under the various compact. That would leave the Upper Basin with 10.3 million acre-feet of water per year and a delivery obligation to the Lower Basin of 4.7 million acre-feet—assuming, that is, that everything else about the various compacts remain the same.

If Arizona were to stay part of the Lower Basin, new regulations would be necessary to prevent Arizona from unfairly using Upper Basin water as it flows through its state and the Upper Basin may seek the 50,000 acre-feet of water Arizona gets from the Upper Basin.

No matter which scenario is chosen, if the Glen Canyon Dam is removed, resulting in the change of the 1922 Compact and The Law of the River to create a one reservoir scenario with a new distribution point at the Hoover Dam, there are many more obstacles that could stand in the way. These issues include the water rights of tribal and international entities and more conflicts between the seven states. The following section explores these issues as they may arise.

 

The Potential Effects of Amending the Compact

It took twenty-two years to get all seven states to sign the original 1922 Compact—Arizona being the final holdout. Since then, there have been a plethora of Compact-related cases to reach the U.S. Supreme Court. While the current state of affairs on the River represents a fragile—but collaborative—truce, reopening the Compact (or any of its related foundational agreements) now could risk causing the whole house of cards to come tumbling down.

Reopening the Compact could present states an opportunity to push for a larger slice of the pie or even just air long-simmering grievances about neighboring states. Additionally, tribal agreements and international treaties may also be affected if water allocations and storage areas change.

This section discusses the potential legal issues that could arise by removing the dam and bringing voices to the table who were not heard under the negotiations of the 1922 Compact. It will comprise of three sections: (1) state issues; (2) international commitments; and (3) tribal commitments.

 

State Issues

The biggest hesitancy to adding amendments or renegotiating the Compact—even just a small detail—is that it opens the entire system to horse-trading. Any issue would become fair game. First, any renegotiation risks pitting states against each other at a time when collaboration on the River seems to be in a golden age. Reopening these foundational agreements now would provide states with an opportunity to scramble for more water for their own growth plans—perhaps at the expense of their less populous or politically connected neighbors. Second, any renegotiation could very quickly turn good-faith problem solving into a public airing of interstate grievances and grandstanding, with states flinging mud at each other for everyone else’s wasteful practices and their broken water governance regimes. But most importantly, states would have to wrestle with the elephant in the room: the fact that the Compact itself is premised on a mistake and that there is actually less water available than has been allocated to the seven states and Mexico.

The Compact depends on 16.5 million acre-feet of water flowing through the Colorado River every year. The problem with that number is that this measurement was based on how much water flows downstream during a wet year—not a normal or dry year. Studies show that during a normal year, 14 million acre-feet flow through Lees Ferry. Furthermore, since both Lake Mead and Lake Powell lose around 1.6 million acre-feet of water a year to evaporation, the amount of water being stored and then later used is even lower than the 16.5 million acre-feet allotted for by the Compact. Thus, the odds that the Upper Basin consistently distributes the correct amount of water to the Lower Basin and Mexico varies year to year. During dry years, the Upper Basin could find itself running low on water supplies, and in wet years have an abundance that could result in a surplus amount of water being sent downstream.

All seven states would probably be on the lookout to get more water for themselves, but none more so than Nevada and Arizona. The 1928 Boulder Canyon Project Act allocated 300,000 acre-feet to Nevada, as compared to the 2.8 million acre-feet allocated to Arizona and the 4.4 million acre-feet to California. Now, with a population of 2.1 million people in Clark County (the southern-most county of Nevada, including the Las Vegas Valley), Nevada may ask for more water if any part of the Colorado River Compact is renegotiated. This could lead to long and arduous negotiations, especially with states like Arizona. As discussed above, it took twenty-two years to get Arizona to sign the 1922 Compact. Having nearly no other water sources available to them, Arizona fought tooth and nail to be able to use its full water rights. In the 1964 decision Arizona v. California, the U.S. Supreme Court allowed Arizona to move forward with the Central Arizona Project, and use water from the Gila River, a Colorado River tributary. By tearing down the Glen Canyon Dam, Arizona’s water rights would become the center of attention. If the Upper Basin reallocates the current water rights it gives to Arizona, and Nevada asks for more water to be allocated to it through the renegotiation process, Arizona could end up losing part of its water rights. This will surely be met with a long series of lawsuits, much like the one the U.S. Supreme Court heard in regards to the original 1922 Compact negotiations and issues.

 

International Commitments

The United States currently has a treaty with Mexico regarding the Colorado River: the Mexico Water Treaty of 1944. Under this treaty the United States is to deliver to Mexico 1.5 million acre-feet each year. In 2007, Minute 319 was negotiated between the two countries creating management provisions and determined how much water Mexico would take from the Colorado during shortage conditions. In August of 2017, both countries extended the Minute 319 Agreement which was set to expire in November 2017. Minute 323, signed in late September extending this Minute into 2026, includes an opportunity for Mexico to continue storing water in Lake Mead. Minute 323 also created a “Binational Water Scarcity Contingency Plan” in which Mexico and the United States temporarily take less water out of Lake Mead. This plan would only be triggered if a Lower Basin Drought Contingency Plan came into effect, which would permanently assure that no more water is allocated from Lake Mead than flows into it. Under the Binational Plan, Mexico would defer its water allotment for a time and could recover its water savings when Lake Mead’s conditions recover.

Under Minute 323, as agreed upon in 2017, Mexico may also defer its water allotment from the Colorado River in the event of an emergency (i.e., an earthquake) or as a result of water conservation projects in Mexico. This allows Mexico greater flexibility in how it uses its water from the River as well as helping to boost the levels of Lake Mead. Mexico would also be allowed additional quantities of water during high elevation conditions at Lake Mead when additional water became available to U.S. users.

If the Compact is renegotiated and the Glen Canyon Dam becomes the reservoir for both the Upper and Lower Basin States, as well as Mexico, legal issues over whose water is whose could escalate, especially during long droughts or periods of shortage. Also, the new terms of the Minute would need to be renegotiated to determine how, as Lake Mead is filled, drought contingency plans— namely, the Lower Basin Contingency plan—would then affect the Binational Plan. If Lake Mead is filled with water belonging to all basin states and Mexico, what new metrics would need to be implemented to decide whether or not Mexico could take more water, or should take less? Renegotiations of Minute 323 would need to reoccur if the Lake Powell were to be decommissioned and Lake Mead filled first.

 

Tribal Commitments

From the very beginning until only recently, tribes have been left out of the major decisions affecting basin allocations. The 1922 Compact, for example, expressly states that the Compact does not affect the obligations of the United States to Indian tribes. Indian Reservations maintain Winters rights, which are adjudicated and, although federal in nature, may be enforced by the states. The Navajo Nation currently sits in three of the Compact states: New Mexico, Arizona, and Utah, thus straddling land in both the Upper and Lower Basins. The Navajo Nation diverts water from Lake Powell, quantifying their rights under the Winters Doctrine. The Bureau of Indian Affairs opposes the removal of Lake Powell. 38,000 Native Americans in the Upper Basin currently depend on Lake Powell for water storage and the power coming out of the Glen Canyon Dam. Removing the Dam will take away storage and power, which could have adverse effects on the tribes depending on it.

As discussed before, a renegotiation of the Compact based on the removal of Glen Canyon Dam could open the debate on the amount of water each state gets. In such a situation, not only would it be imperative to ensure that tribes like the Navajo Nation maintain their full Winters or settlement rights, but it would also be important—or even imperative—to bring them to the table for any decision, further complicating the dynamics.

 

Conclusion

The Bureau of Reclamation recently recommissioned the Dam for another 20 years, signaling the Dam is here to stay, but the calls for its deconstruction are still alive and growing. While there are countless other legal issues that would make draining Lake Powell a legal headache, there is no doubt that untangling the ramifications of the Colorado Compact is by far the biggest. As voices grow louder to tear down the dam, it will be important to not just convince the West of the environmental and water saving benefits, but to genuinely reckon with some of these thornier issues before those calling the shots will take these calls seriously.

Kristina Ellis

Image: Glen Canyon Dam and Lake Powell near Page, Arizona. Wikimedia Commons user Tuxyso, Creative Commons.

 

 

Sources

Press Release, Bureau of Reclamation, Interior Secretary Salazar and Reclamation Commissioner Connor Join U.S. and Mexico Delegations for Historic Colorado River Water Agreement Ceremony (Nov. 20, 2012), https://www.usbr.gov/lc/region/feature/minute319.html.

Law of the River, Reclamation (June 30, 2015), https://www.usbr.gov/lc/region/pao/lawofrvr.html.

Colorado River Compact of 1922, Colo. Rev. Stat. § 37-61-101 (2017).

Colorado River Storage Project, 43 U.S.C. § 620 (2017).

Boulder Canyon Project Act, 43 U.S.C. § 617 (2017).

Upper Colorado River Basin Compact of 1948, Colo. Rev. Stat. § 7-62-101 (2017).

Arizona v. California, 376 U.S. 340 (1964).

Mexico and Colorado River Water, Water Educ. Found., http://www.watereducation.org/aquapedia/mexico-and-colorado-river-water (last visited Nov. 21, 2017).

River Law, S. Nev. Water Auth., https://www.snwa.com/ws/river_law.html (last visited Nov. 21, 2017).

United States and Mexico Conclude Colorado River Agreement, Int’l Boundary and Water Comm’n (Sept. 27, 2017), https://www.ibwc.gov/Files/Press_Release_092717.pdf.

Fill Mead First, Glen Canyon Inst., https://www.glencanyon.org/glen_canyon/fill-mead-first (last visited Nov. 21, 2017).

Ian James, U.S. and Mexico Finalizing Colorado River Water-Sharing Deal, U.S.A. Today (Aug. 12, 2017, 12:58 PM), https://www.usatoday.com/story/news/nation-now/2017/08/12/u-s-and-mexico-finalizing-colorado-river-water-sharing-deal/562028001/

Ken Ritter, Feds Give 20 More Years to Glen Canyon Dam on Colorado River, Denver Post (Dec. 16, 2016, 5:32 PM), http://www.denverpost.com/2016/12/16/feds-20-years-glen-canyon-dam-colorado-river/.

Kate Schimel, After its Dams Came Down, River is Reborn, High Country News (Sept. 4, 2017), http://www.hcn.org/issues/49.15/rivers-six-years-after-its-dams-came-down-a-river-is-reborn.

Matt Weiser, Study: Rivers Recover Faster Than Expected After Dam Removal, News Deeply (Sept. 11, 2017), https://www.newsdeeply.com/water/community/2017/09/11/study-rivers-recover-faster-than-expected-after-dam-removal.

Cynthia Brougher, Indian Reserved Water Rights Under Winters Doctrine: An Overview, Nat. Agric. L. Cen. (June 08, 2011), http://nationalaglawcenter.org/wp-content/uploads/assets/crs/RL32198.pdf.

Charles Cohn, Should Glen Canyon Dam be Removed? (Univ. of Colo. Boulder 2011), https://scholar.colorado.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1808&context=honr_theses.

Krista Langlois, Down with the Glen Canyon Dam?, High Country News (Sept. 4, 2017), http://www.hcn.org/issues/49.15/rivers-down-with-the-glen-canyon-dam.

Abram Lustgarten, Unplugging the Colorado River, N.Y. Times (May 20, 2016), https://www.nytimes.com/2016/05/22/opinion/unplugging-the-colorado-river.html.

Eric Trenbatch, Former Reclamation Boss Says: Tear Down Glen Canyon Dam, Moab Sun (Apr. 9, 2015, 8:40 AM), http://www.moabsunnews.com/news/article_5b24b85a-dec6-11e4-beea-534e63f70964.html.

Brain Maffly, Wildlife Authorities are Removing Dam in Mill Creek Makeover, Salt Lake Tribune (Sept. 15, 2016, 9:53 PM), http://archive.sltrib.com/article.php?id=4356926&itype=CMSID.

Daniel P. Beard, Deadbeat Dams 63–75 (Johnson Books 2015).

On Drought and the “Drought Contingency Plan”, Ariz. Dept. Water Res. (Feb. 16, 2017), https://new.azwater.gov/news/articles/2017-16-02.

Arizona Water Resources Director Joins U.S. & Mexico in Finalizing Epic CO River Agreement, Ariz. Dept. Water Res. (Sept. 27, 2017), https://new.azwater.gov/news/articles/2017-27-09.

Sinjin Eberle, Why Filling Lake Mead First is a Bad Idea, Medium, https://medium.com/@americanrivers/why-filling-lake-mead-first-is-a-bad-idea-ec1bcbf12c07 (last visited Dec. 17, 2017).


A decade-old Utah Supreme Court ruling has sparked a protracted battle of legislation and litigation about public rights to navigable waters and underlying beds on private lands. At the heart of the matter: How much access should the public have to the beds and banks of navigable waters that cross private land? Pro-access advocates want the Court to preserve the public’s use of these waters and their underlying beds for recreational uses now and into the future, while private landowners want a ruling upholding their right to exclude.

The modern debate about stream access in Utah began to take shape in 2008 with the Utah Supreme Court’s decision in Conatser v. Johnson, which gave the public a broad access to private streambeds and banks. That decision caused outrage on behalf of property owners who saw their right to exclude being eroded. In support of these property owners’ concerns, the Utah legislature passed legislation in 2010 rolling back these broad public access rights, making it criminal trespass for the public to use private beds and banks for anything other than emergencies and to negotiate around hazards.

The Utah Stream Access Coalition challenged that 2010 change to the Utah statute in two separate cases before the state supreme court. In the first case, the Coalition successfully argued that historical commercial use of a one-mile stretch on the Weber River made that portion of the river navigable in fact, and therefore held by the state of Utah for the benefit of the public. In the second case, which focuses on fishable stretches of the Provo River, the pro-access advocacy group is trying to get the private-property-friendly state law declared unconstitutional and determine the rights of landowners and the general public with respect to publicly owned streams and rivers running across private property.

The decisions in these cases, one of which has already been announced, will either affirm Utah’s commitment to the public trust doctrine or warn its residents that any attempt to touch the land under or running along public streams could land them in hot water. While the Weber River decision was a big win for the Coalition, if the Utah Supreme Court also rules in the Coalition’s favor in the Provo River case, then the 2010 legislation violates the state’s constitutional provision of the public trust doctrine, and the public will once again be able to use land underlying and running along navigable waters in Utah for fishing, wading, and other recreational pursuits.

Ideally, the court needs to find a “Goldilocks Ratio” – a just-right balance – of public access and protection of the rights of riparian owners.

 

History of Stream Access in Utah

The battle over the beds of Utah’s state waters all started in 2000, when a Morgan County deputy sheriff cited Jodi and Kevin Conatser with criminal trespass for wading in a river located on private property. The Conatsers had been floating down the Weber River and occasionally stopping on sandbars to fish. When a riparian landowner told them they were trespassing and demanded they leave the river, they refused and continued downstream. Later that day as they exited the river at the downstream public access point, a deputy sheriff issued them a citation for criminal trespass. The Morgan County Justice Court found them guilty, but the county dismissed the charges upon appeal to the district court due to the uncertainty of the law regarding stream access and their status as trespassers, as the Consatsers may well have had a right to the use of the riverbed.

To clarify who may use underlying beds of state waters, the couple sought a declaratory judgment from the district court that the public has a broad right to state waters, and the case went all the way to Utah’s Supreme Court. The Court ruled that the public had the right to touch submerged lands as much as “reasonably necessary” to enjoy recreation, which included the right to wade through waters and stand on sandbars to fish. Importantly, the Court ruled landowners could not prohibit the public from such uses on the stream and rivers running across their land. Further, the Court held that the public’s easement extends even to non-navigable waters, irrespective of private ownership of the bed—overall a strong affirmation of the state’s commitment to the public trust doctrine.

After that 2008 ruling, riparian property owners complained of increasingly frequent trespassers—usually anglers—walking through their lands to access rivers. Owners complained that recreationists harassed the landowners’ livestock, littered, or caused other damage to their property. Another issue that came up was the general lack of public understanding of what constitutes submerged lands that they could use, and where a property owner’s land began. The landowners’ response was to pressure state lawmakers into passing stronger protections to prevent recreationists from trespassing and damaging property with HB 141.

Before the passage of HB 141 in 2010, Utah acknowledged the public’s ownership and easement over state waters and underlying beds, as well as the use of those waters for recreational purposes. HB 141 severely limited the public’s access of beds under waters that traverse private property. The bill limits public use of navigable waters to floating, and floaters could only touch the beds or banks of such waters that fall on private property if the touching is incidental for safe passage and continued movement and executed in the most direct and least invasive manner closest to the water. Members of the public, and their vessels, are not permitted to stop or anchor, but must move with the current. Any member of the public failing to comply may be charged with criminal trespass.

In response to these restrictions, a group of pro-access advocates formed the Utah Stream Access Coalition and brought two lawsuits against riparian property owners—one over rights to the Weber River and another regarding the Provo River—to argue that private property rights do not defeat the public’s rights to use the beds of state waters. With each lawsuit, the Utah Stream Access Coalition is attacking the statute in a different way.

 

Argument 1: Navigability

In the Weber River case, the Coalition filed a lawsuit against several private property owners who built barbed wire fences across the Weber River and posted signs no-trespassing signs indicating that the banks and beds of the river are private property. The Coalition argued that the “one-mile stretch” appurtenant to the defendants’ properties meets the standards of navigability and thus belongs to the state, meaning that landowners do not own the underlying land in the first place. Because federal law, which supersedes state statutes, requires that navigable state waters and beds be managed for the benefit of the public, HB 141 would not apply to that stretch in the case at issue. The Coalition’s contended that the defendants’ posting of “No Trespassing” signs stating the banks and bed of the Weber River are private property unlawfully interfered with public access and use of the waters and beds. The district court previously held that evidence that the Weber River had been used for transportation of logs around the time of statehood satisfied the Daniel Ball/navigability-for-title test. In their appeal to Utah’s Supreme Court, the defendants argued that the district court erred in applying the federal definition of navigability, and the judge should have used the Utah definition, since the case was a matter of state, rather than federal law. In their November 2017 decision, the Utah Supreme Court ruled that the federal and state definitions of navigability are similar enough to not have an appreciable impact on the outcome of the district court’s decision. The Court therefore affirmed the district court, ruling that the prior commercial use of the river was enough to establish navigability. The decision that the one-mile stretch of the Weber Rive is navigable in fact means that the public has a right to access those waterways, including a right of use to the riverbed. However, the Court did not resolve the question of who has title to the land beneath the water.

While the Coalition limited this case to a one-mile stretch for the sake of simplicity, it was intended to represent all forty miles of the Upper Weber River. The timber that floated down that one-mile stretch likely also floated through the rest of the Upper Weber River. Since the Utah Supreme Court held that historical log drives prove navigability, the state might be required to reevaluate all rivers where such commercial activities took place. Despite this win for the Coalition, they are warning the public not to wade through rivers on private land quite yet – perhaps waiting until the Utah Supreme Court rules on the second case.

 

Argument 2: Constitutionality

The Coalition also brought a lawsuit against the owners of Victory Ranch – a luxury development selling homes with exclusive access and use of over four miles of the Provo River – claiming that giving wealthy riparian owners such exclusive rights violates the public trust doctrine. Since Utah’s state constitution expressly acknowledges public use of state waters, the Coalition’s contention in the Provo River case is that HB 141 itself is unconstitutional because it prohibits public access to these water bodies. The Coalition argues that the public has the right use state waters for any lawful purpose—including floating, hunting, and fishing—no matter who owns the bed, and that the current statute unconstitutionally infringes on the public’s right in violation of the public trust doctrine. The Coalition cites prior case law, including the Conatser v. Johnson holding that the public has an easement to lawfully access and use state waters and beds for recreational purposes despite being on private land, irrespective of whether the bed is navigable or not. They also cite to the Utah Constitution’s provisions of a public trust in order to demonstrate that HB 141 is unconstitutional.

The Coalition is arguing that HB 141 is too hard of a rule in favor of private property. VR Acquisitions LLC, the appellant in the case, is arguing that granting the public use to all underlying lands of navigable waters is too soft and thus violates the essential right of exclusion on privately owned land. They contend that since the state did not cede control of the beds underlying state waters, it therefore has the power to both regulate the public from use of those beds and to let private landowners—who do not have a duty to the public—decide whether the public may use submerged lands on their property. VR Acquisitions further argue that the right to the recreational easement to touch private beds was based purely on the prior statute and recent decisions of the Utah Supreme Court, which could easily be overturned. The Utah Supreme Court heard arguments for this case in June 2017, but has yet to return a verdict. The Court will hopefully find a just-right middle ground that will finally put this controversy to bed.

 

Legal Framework

Striking the proper balance of private property rights and public use rights requires consideration of many factors. Determination of who owns a water body is a matter of navigability for title, decided by whether that water is navigable in fact at time of statehood using the Daniel Ball test. That case held that if a water body is used or is capable of being used in its natural condition as a highway of commerce for trade or travel by customary means at the time a state joined the Union, then it is navigable in fact. Customary modes of trade and travel on water can include using waters for commercial log floating, canoes, or rowboats.

Once it is determined a water body is navigable, the equal footing doctrine allocates ownership of those waters and submerged lands to states, and gives states’ the authority to supervise and control navigable waters and their underlying beds, beginning at the average high-water mark. Use of public waters and underlying beds are either exclusively dedicated to public use, or that use is shared between the public and private owners. Consequently, the state may limit the rights of private owners to the underlying beds of public waters, as well as their shorelines. The states also have discretion to decide whether title to the bed may be transferred to a private party. However, state discretion over these transfers has become increasingly limited if it does not serve the public interest.

The public trust doctrine charges states with a duty to manage navigable waters for the benefit of the public, and gives the public an indisputable right to use the surface of navigable waters. What rights the public has beyond that are left as a matter of state law. The objective of the public trust has changed over time as society’s values surrounding use of waterways evolved. Even though some states have tried to exempt themselves from the public trust doctrine, several courts have held that states do not have plenary authority to do so. While state’s do have the power of jus regium – the right to regulate and secure navigable waters and beds for the benefit of the public – the legislature may not go so far as to grant these lands to private parties.

HB 141 is very similar to Wyoming’s Stream Access Law, which allows floating through private lands, but relegates the banks and bottoms of streams to private ownership. This means, as with Utah’s current statute, wading and anchoring constitute trespass, although members of the public are allowed to get out of their vessel to get around non-navigable obstacles or for other emergency situations.

Some states have legislated the extent of public use on navigable water bodies, while other states have left that determination up to the courts. Mississippi, for example, has statutorily determined that waterways having a mean annual flow of one hundred cubic feet per second or more are deemed “public waterways,” and the public is given the right to use of the surface, as well as the underlying beds, for transportation, fishing, and water sports. In this light, Utah’s legislative overruling of the Conatser ruling confirming the public’s easement would not be an overreach of the legislature’s powers since the representatives were publicly elected, and the bill supposedly reflects the will of the people. However, those who oppose HB 141 allege that the bill was drafted behind closed doors and was funded by lobbyist seeking to serve private interests. Furthermore, the decision in Conatser was based on the public trust doctrine, which demands that states retain supervisory control of navigable waters and underlying lands.

Other states have made judicial determinations as to the extent and limitations of the public trust doctrine. In Colorado, a 1979 decision by the state Supreme Court came down in favor of protecting private property rights. That court determined that the state constitution’s provision that natural waters within the state are public property dedicated to the use of the people was intended to preserve the prior appropriation system of water rights for irrigation, not necessarily allow public access and use of those waters for other purposes. However, unlike the rivers in Utah, the water body at issue in that case was stipulated to the court to be a non-navigable stream. A recent lawsuit filed in U.S. District Court is seeking to clarify the issue of navigability on the Arkansas River. Much like the Weber River case in Utah, the plaintiffs in this suit argue that historical use of the Arkansas River as a log drive proves that the river is navigable, giving the public a right of access and use to the river and its beds.

Montana, on the other hand, has come down in favor of broad rights regarding public access and use both legislatively and judicially. The public trust doctrine is enshrined within the state constitution and Montana statutes, and its Supreme Court has repeatedly recognized the public’s right to access. The 1985 Stream Access Law states that the public has a right to water bodies capable of recreational use even if the submerged lands are under private ownership. The validity and scope of this law has also been upheld by the state’s Supreme Court.

 

Discussion

In the current Utah debate, both sides—pro access and pro property rights—seem to present a compelling argument. Finding the “Goldilocks Ratio” of private property interests and public access will not be an easy feat.

Supporters of HB 141 argue that the restricted access promotes security in landownership—arguably the largest investment most people will ever make. Any diminution of that security or their right to exclude would be a taking without compensation, which is a violation of the Fifth Amendment. Supporters fear that broad public access rights would muddy property titles and reduce property values since it would reduce landowner control. A ruling in favor of the Coalition in the Provo River case, in their opinion, would upset “settled expectations” and create uncertainty. Such an undermining of property rights and privacy expectations would reduce riparian owners’ investments in stream restoration and fish habitats that benefit the general public. In fact, several landowners in Utah did stop restoration plans in light of the current uncertainty.

Another argument put forth from the pro-property rights camp is that limiting access to the waters of Utah is necessary to avoid a “tragedy of the commons.” First, use of state waters by too many people could seriously harm fisheries. Second, they point to the trash left behind by members of the public, which can clog up downstream irrigation diversions and defile private land. Property owners have also accused trespassers of creating other problems for landowners, such as leaving cattle gates open and the destruction of fences. While not all members of the public commit such blatant trespass, some portion of them do, and landowners argue they simply do not have time to for constant patrols of their lands.

Advocates for HB 141 further note that the public still has access to much of the state waters, and that there are large portions of rivers that have secured public access rights. Since the state is merely regulating the resource (and not disposing of it entirely), there is not a violation of the public trust doctrine. However, this last argument has been expressly rejected by Utah’s district court, which has held that it is the state’s duty to protect those resources held in trust for the public.

Pro-access arguments recognize the need for balancing public use of water with private property rights. Their issue lies in HB 141’s overly broad reach prohibiting public access to almost half of Utah’s fishable waters, and they argue restrictions of state waters should be made on a case-by-case basis by Utah’s Wildlife Resources and Environmental Quality and Water Resources divisions. The state’s public trust doctrine has been recognized to protect not only navigation, commerce, and fishing, but also recreation; and the legislature, which is supposed to represent the public, cannot give more credence to private property owners than the rights of the general public. Further, they maintain that the public trust protects the rights of future generations. As Utah’s growing population continues to push deeper into the backcountry, the public’s access to the streams and rivers becomes increasingly restricted. It is the obligation of the present legislation to maintain the public trust for the enjoyment of Utah’s future residents.

Defenders of the public trust also point out that it is largely public taxes that pay for improvements such as flood mitigation, dams, and stocking of fisheries. And as a result, the public should be able to enjoy the benefits of those investments. To help reduce issues of trespassing across private land to gain access to state waters, Utah’s Division of Wildlife Resources has already instituted a program that negotiates with private landowners to allow easement for walk-in access. Another solution may be to charge minimal user fees for these access areas to help pay for mitigation and cleanup efforts to reduce the impacts of public use.

 

Conclusion

Citizens of the state from both sides hope that decisions in these two cases will finally settle the matter. However, even if the Court can achieve the ideal “Goldilocks Ratio” of public access rights and private ownership protections, there will likely be further disputes between the two sides. A favorable outcome for the Coalition in the Provo River case may invalidate HB 141 entirely and could give the public the right to use any river in the state. Such an outcome would likely result in riparian landowners in Utah seeking new legislative remedies to protect their property.

However, even if the Court rules against the Coalition, public perception of what the public trust should encompass continues to evolve – it changes over time as society’s values regarding use of water change. It is possible that in a few years, the public demand will overrule the property concerns of landowners.

Another consideration that may affect public versus private rights are the impacts of drought due to climate change. As water become scarcer and more valuable, landowners may become more protective of this increasingly limited resource.

Finally, while the Utah Supreme Court will decide the boundaries of the public trust doctrine, Utah’s legislatures and politicians have already proven that they are willing and able to wade deep into the waters of determining the future of stream access in Utah. Although the decisions of these cases may not bring a conclusive end to the controversy, they will certainly add clarity to the issue that will help determine public and private rights in the future.

Alexandra Tressler

Image: Provo River, Wasatch County. Flickr user Ken Lund, Creative Commons.

 

Sources

Conatser v. Johnson, 2008 UT 48, 194 P.3d 897.

Leia Larsen, Utah River Access Cases Fight for Public’s Right to Stand on Private Riverbeds, Standard-Examiner (June 26, 2017), http://www.standard.net/Environment/2017/06/26/Utah-river-access-cases-fight-for-public-s-right-to-stand-on-private-riverbeds.html.

UT Code Ann. 73-29-102(4).

UT Code Ann. 73-29-202(1).

Utah Stream Access Coalition v. Park, Civ. No. 110500360 (3d Dist. Utah, Apr. 10, 2015).

Brief of Appellee, Utah Stream Access Coalition v. VR Acquisitions, LLC (Utah July 25, 2016), appeal from Civ. No. 100500558 (4th Dist. Utah, Mar. 8, 2013).

Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892).

The Daniel Ball, 10 Wall. 557, 563, 19 L. Ed. 999 (1871).

Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709 (Cal. 1983).

Conatser v. Johnson, No. 050500092, 2005 WL 6251230 (Utah Dist. Ct. Dec. 15, 2005).

Leia Larsen, Uncertain Future of Utah’s Riverbed Access Frustrates Morgan Landowners, Standard-Examiner (July 3, 2017), http://www.standard.net/Environment/2017/07/03/Uncertain-future-of-Utah-s-riverbed-access-frustrates-Morgan-landowners-Weber-River.html.

David H. Getches, Sandra B. Zellmer & Adell L. Amos, Water Law in a Nutshell 302–3, 306 (5th ed. 2015).

Miss. Code. Ann. § 51–1–4(1).

People v. Emmert, 597 P.2d 1025 (Colo. 1979).

Bitterroot River Protective Ass’n, Inc. v. Bitterroot Conservation Dist., 2008 MT 377, 198 P.3d 219.

Amy Joi O’Donoghue, Utah Supreme Court Wades into Stream Access Cases, Desert News Utah (Jan. 9, 2017), https://www.deseretnews.com/article/865670748/Utah-Supreme-Court-weighs-stream-access-cases.html.

Reed Watson, Stream Access Across the West, 27 Prop. & Envtl. Res. Ctr. 1 (2009), https://www.perc.org/articles/stream-access-across-west.

Brian Maffly, Utah Ruling Advances Access to Public Waters Crossing Private Land, Salt Lake Trib. (Mar. 26, 2013), http://archive.sltrib.com/article.php?id=56058350&itype=cmsid.

Stream Access Weighed by Utah Supreme Court, Backcountry Hunters & Anglers (Jan. 13, 2017), https://www.backcountryhunters.org/stream_access_weighed_by_utah_supreme_court.

Kris Olson, Legislature vs. Supreme Court: Utah’s Complicated Battle Over Stream Beds and Fishing Access, Backcountry Hunters & Anglers (July 8, 2016), https://www.backcountryhunters.org/legislature_vs_supreme_court_utah_s_complicated_battle_over_stream_beds_and_fishing_access.

Brett Roper, Decision helps increase stream access in Utah, HJ News (Dec. 6, 2017), https://news.hjnews.com/logan_hj/decision-helps-increase-stream-access-in-utah/article_cea0905c-b458-5145-b043-062f3e7c2995.html.

Leia Larsen, In wake of Supreme Court’s Weber River decision, stream access advocates urge patience, Standard-Examiner (Nov. 25, 2017), http://www.standard.net/Environment/2017/11/25/In-wake-of-Supreme-Court-s-Weber-River-decision-stream-access-advocates-urge-patience.

Ben Winslow, Utah Supreme Court upholds access to rivers and streams, Fox 13 Salt Lake City (Nov. 24, 2017), http://fox13now.com/2017/11/24/utah-supreme-court-upholds-access-to-rivers-and-streams/.

Utah Stream Access Coal. v. Orange St. Dev., 2017 UT 82, 2017 WL 5634226.


In the world of California water, nothing is a sure thing. But when you’re Governor Jerry Brown, even one step forward can seem like two steps back.

The seventeen billion-dollar plan to build two tunnels under the Sacramento-San Joaquin Delta (“Delta”) in California, currently known as California WaterFix (“CA WaterFix”), has been a concern for environmentalists and Central Valley landowners since the plan was initiated in 2005. But in the past two years, the Delta plan has experienced a rollercoaster ride of successes and setbacks. Formerly known as the Bay Delta Conservation Plan, CA WaterFix made headway this summer when, after an extensive ten-year environmental study and scientific inquiry, the Delta plan received the “go ahead” from both federal agencies responsible for the protection of species under the Endangered Species Act (“ESA”) and from the state’s Department of Fish and Wildlife. The U.S. Bureau of Reclamation and the California Department of Water Resources also completed their final Environmental Impact Statement and Environmental Impact Report last year in compliance with federal and state law. Despite overcoming these legal hurdles, construction of the thirty five–mile long tunnels is unlikely to start anytime soon. Experts anticipated the project could begin construction as early as next year, but concerns over cost distribution—in conjunction with current claims alleging that the plan violates the California Environmental Quality Act (“CEQA”)—are likely to slow, if not kill, CA WaterFix’s momentum.

Governor Brown and the California Department of Water Resources proposed the plan known as CA WaterFix. The controversial plan would take water from the Sacramento River and transport it south under several Delta islands via two tunnels located 150 feet underground. The tunnels would end at Clifton Court Forebay. Near the Forebay are pumps that send water south through California’s aqueducts. Proponents hope the Delta plan would improve water flows through the Delta and allow water to flow with fewer interruptions. Roughly thirty percent of municipal water in Southern California comes from Northern California via the Sacramento-San Joaquin Delta. State officials are fearful that the Delta’s current delivery system is outdated and harms the Delta’s ecosystem. They expect the twin tunnels will stabilize the water supply for two-thirds of California in the face of climate change, since the majority of the state’s water is located in the north, but the majority of the state’s population is located in the south. Large southern water districts, like Coachella, Highland, Rialto, Indio, Palmdale and inland San Diego, are predicted to increase their water consumption in coming years. California’s largest supply of clean water is dependent on fifty year–old levees, and experts worry the current system cannot adequately capture and store water when it is available.

Although state officials for the Delta plan argue that the tunnels will improve the Delta’s ecosystem, many environmental groups and government agencies in the Delta region are opposed to the tunnels. They believe that CA WaterFix cannot comply with the ESA, despite biological opinions from the state and federal agencies that suggest otherwise. The possible extinction of Delta smelt has been of particular concern. Consistent abuse (by, for example, overfishing) of one of the continent’s largest wetlands has contributed to the decline of Delta smelt in the area. Delta smelt, Chinook salmon, and steelhead are among the Delta-inhabiting fish protected under the ESA. Current challengers to the Delta plan’s compliance with the ESA likely hope for a result similar to the one in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), in which the Supreme Court ordered a permanent injunction against the construction of a controversial dam and held that the ESA prohibited completion of a dam where its operation would either eradicate an endangered species or destroy its critical habitat. The dam in Hill was nearly completed when environmental groups brought suit, and Congress had already allocated large sums of public money for the project. In this case, unlike in Hill, construction of the twin tunnels has yet to begin and funding for the project is insecure.

In compliance with the 2009 Delta Reform Act and pursuant to CEQA and the National Environmental Policy Act (“NEPA”), an Environmental Impact Report and an Environmental Impact Statement were finalized last December.

CEQA has historically proven to be a powerful weapon in the courtroom. In Citizens of Goleta Valley v. Board of Supervisors, 801 P.2d 1161 (Cal. 1990), the Supreme Court of California said the courts must “scrupulously enforce all legislatively mandated CEQA requirements.” CA WaterFix may be required to redo the environmental review process if the project’s challengers can prove that the constructions and functioning of the tunnels will harm wildlife, like the Delta smelt. As of the August filing deadline, at least fifty-eight environmental groups and local governments have sued under CEQA in opposition to the Delta plan. The plaintiffs include Sacramento Valley water agencies, Sacramento County, and San Joaquin County.

Many of the lawsuits’ main claims are that the environmental reviews were not properly conducted. The Golden Gate Salmon Association, the Natural Resources Defense Council, the Defenders of Wildlife, and The Bay Institute filed a joint claim against Secretary of Commerce Wilbur Ross, Administrator for Fisheries at the National Oceanic and Atmospheric Administration Chris Oliver, and the National Marine Fisheries Service on June 29, 2017. The plaintiffs’ main claim is that “reliance on the uncertain future mitigation measures to conclude that [CA WaterFix] will not jeopardize the [Chinook salmon] species or adversely modify its critical habitat violates section 7(a)(2) of the ESA.” They assert that a biological opinion’s no jeopardy conclusion must be “reasonably specific, certain to occur, and capable of implementation.” The Bay Institute, the Natural Resources Defense Council, and the Defenders of Wildlife filed a similar claim against Secretary of the Interior Ryan Zinke, the U.S. Fish and Wildlife Service, and its Director Greg Sheehan, also asserting that the biological opinions backing CA WaterFix’s proposal are inadequate.

In addition to the legal challenges, CA WaterFix has also struggled to secure sufficient funding for the project. Many Delta and Westland farmers hold the view that construction of the tunnels will disrupt Delta residents’ culture and lifestyle, so it is unsurprising that they do not want to bare any of the costs associated with the tunnels’ construction—and legally, they do not have to. Brown pledged that local water districts would bear all the costs of construction; however, a recent audit by the Interior Department found the federal government improperly subsidized farmers for a portion of the tunnels’ planning costs. California water districts may have to pay back the improperly contributed $85 million in taxpayer funds.

All the while, getting approval from water districts has been a whirlwind. Westlands Water District, California’s largest irrigation district and a major water agency served by the Central Valley Project, decided not to join CA WaterFix. The Westlands’s board voted against the project in mid-September, asserting the current financial structure of the project was not feasible. The Westlands District said it could not afford to support the project because of a unique cost-allocation formula imposed by the U.S. Bureau of Reclamation on the Central Valley Project. The cost-allocation formula, originating in a 1939 deal from the Roosevelt administration, exempts a large group of water users in the district from helping fund the Delta tunnels. The deal inflates Westlands customers’ costs by several billion dollars. Until recently, Westlands’s vote appeared especially discouraging, but the project is not doomed yet. The largest water district in Southern California, Metropolitan Water District of Southern California, did approve a $4.3 billion buy-in in October to support CA WaterFix. The vote of approval does not ensure the survival of the Delta project, but it is a step in the right direction. Silicon Valley’s water district, the Santa Clara Valley Water District, voted in mid-October to provide “conditional support” for the Delta project. The district offered to contribute to a smaller and less expensive project, offering $200 million instead of the expected $600 million. Brown and his administration are still advocating for twin tunnels, but if more water districts fully supported the building a single tunnel, Brown might have to seriously consider the idea.

The original plan envisioned that the largely urban agencies supplied by the State Water Project would pay fifty-five percent of the construction costs while the largely agricultural districts of the federal Central Valley Project, like Westlands, would pay forty-five percent. One suggested alternative to this financial plan is requiring wildlife refuges and farmers with senior water rights to bear some of the construction costs. However, neither group is legally obligated to contribute to the cost of construction, despite being first in line for the Delta water. It is fair to assume that farmers would be more willing to chip in for the project if it meant more water for them, but if the farmers’ water rights are already being satisfied, they cannot legally enlarge their water use anyway. Another consideration is the farmers’ economic stability and ability to fund a project of this size.

Major water purchasers were expected to continue to vote for or against the funding of CA WaterFix in the late months of 2017, but as of January 2018, the Department of Water Resources is still considering limiting the project to one tunnel instead. A revised plan may command a new set of environmental impact studies and other permits. The one-tunnel option also needs approval from the districts previously supporting the two-tunnels plan. It has also been suggested that rather than build the two tunnels, the state can increase water storage capacity (above and below the ground), reuse and recycle water, and build more water desalination facilities. The fifty-year old system currently in place does not allow the state to capture and store large amounts of storm water in the wetter years. Some state officials believe the Delta plan is the only option for serving the nineteen million Southern Californians. Backers have tweaked the Delta plan constantly since its introduction in 2005, and the plan might see additional changes in the future. Current lawsuits are likely to slow construction plans, especially considering the first round of biological opinions took nearly ten years. If the suits are successful and the opinions must be re-evaluated, construction could be stalled for years. To comply with environmental limits, one proposal has been to build a new diversion point in the Sacramento River in a northern delta that will feed the tunnels without harming fish populations. Current lawsuits will run their course over the next few years, but these suits are by no means a guaranteed halt on the project.

Kate Mailliard

Image: Delta Smelt. Flickr user USFWS/Peter Johnsen, Creative Commons.

 

Sources:

Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978).

Citizens of Goleta Valley v. Bd. of Supervisors, 801 P.2d 1161 (Cal. 1990).

Alex Breitler, Delta tunnels: Time to fish or cut bait, Record Net (Sept. 17, 2017), http://www.recordnet.com/news/20170917/delta-tunnels-time-to-fish-or-cut-bait.

Bettina Boxall, One possible delta tunnels deal would give cheap water to farmers – and more expensive water to cities, L.A. Times (Jan. 25, 2018), http://www.latimes.com/local/lanow/la-me-tunnel-deals-20180125-story.html.

Bettina Boxall, Southern California water agency approves pitching in $4.3 billion for massive delta tunnels project, L.A. Times (Oct. 10, 2017), http://www.latimes.com/local/lanow/la-me-mwd-tunnels-20171010-story.html.

Bettina Boxall, Water district vote deals major blow to California’s delta tunnel project, L.A. Times (Sept. 19, 2017), http://www.latimes.com/local/lanow/la-me-westlands-tunnels-20170919-story.html.

Dale Kasler, State moves step closer to downsizing Delta tunnels project, Sacramento Bee (Jan. 16, 2018), http://www.sacbee.com/news/state/california/water-and-drought/delta/article194935194.html.

Dale Kasler, Dozens are suing to block Delta tunnels. Will it matter?, Sacramento Bee (Aug. 21, 2017), http://www.sacbee.com/news/state/california/water-and-drought/delta/article168497632.html.

Ellen Knickmeyer, Audit: US Misuses Taxpayer Cash for California Water Project, U.S. News, (Sept. 8, 2017), https://www.usnews.com/news/best-states/california/articles/2017-09-08/apnewsbreak-us-taxpayer-money-misused-for-water-project.

Matt Weiser & Phillip Reese, State’s population growth expected to outstrip water conservation in coming years, Sacramento Bee (Feb. 14, 2015), http://www.sacbee.com/news/local/environment/article10311635.html.

Ryan Sabalow & Dale Kasler, Let the lawsuits begin: Delta tunnels get official state green light, Sacramento Bee (July 21, 2017), http://www.sacbee.com/news/state/california/water-and-drought/delta/article162979533.html.

Ryan Sabalow & Dale Kasler, Follow the money – Delta tunnel foes try new strategy, Sacramento Bee (Sept. 15, 2017), http://www.sacbee.com/news/state/california/water-and-drought/delta/article173506241.html.

Ryan Sabalow & Dale Kasler, Brown administration says it’s willing to consider one-tunnel approach to Delta project, Sacramento Bee (Oct. 17, 2017), http://www.sacbee.com/news/local/article176447091.html.

Tori Sundheim, California’s Bay Delta Conservation Plan and Governor Brown’s Tunnels, U. Denv. Water Law Rev. Blog (Mar. 18, 2013), http://duwaterlawreview.com/california-browns-tunnels.

Press Release, Cal. Dep’t of Water Res., California WaterFix Receives Authorization under the U.S. Endangered Species Act Federal Agencies Issue Biological Opinions for Proposed Project (June 26, 2017), http://cms.capitoltechsolutions.com/ClientData/CaliforniaWaterFix/uploads/CWF_PressRelease_BiOps6.26.17.pdf.

U.S. Bureau of Reclamation et al., Final Environmental Impact Report/Environmental Impact Statement (Dec. 22, 2016), http://baydeltaconservationplan.com/FinalEIREIS/2016DirectDownload.aspx.

Cali. WaterFix, https://www.californiawaterfix.com (last visited Sept. 23, 2017).

CA Water Law Symposium: Chuck Bonham on going big in the Delta, Maven’s Notebook (Mar. 1, 2017), https://mavensnotebook.com/2017/03/01/ca-water-law-symposium-chuck-bonham-on-going-big-in-the-delta/.

The Metro. Water Dist. of S. Cali., http://mwdh2o.com/DocSvcsPubs/WaterFix/index.html (last visited Sept. 23, 2017).

Pub. Policy Inst. of Cali., Just the Facts, http://www.ppic.org/publication/water-use-in-california/ (last visited Oct. 13, 2017).

Complaint at 13, The Bay Institute v. Zinke, No. 17-03739 (N.D. Cal. June 29, 2017), https://www.nrdc.org/sites/default/files/the-bay-institute-et-al-v-zinke-complaint.pdf (last visited Oct. 22, 2017).

Complaint at 12–13, Golden Gate Salmon v. Ross, No. 17-03742 (N.D. Cal. June 29, 2017), https://www.nrdc.org/sites/default/files/golden-gate-salmon-association-et-al-v-ross-complaint.pdf (last visited Oct. 22, 2017).


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.

Conclusion

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.

 

 

Sources

Nev. Rev. Stat. Ann. § 533.040 (West).

Nev. Rev. Stat. Ann. § 533.370 (West.)

Alex Lash, For Biotech Cowboys, It’s No Ride into The Sunset, Xconomy (July 8, 2015), http://www.xconomy.com/national/2015/07/08/in-translation-for-biotech-cowboys-its-no-ride-into-the-sunset/.

Anne Knowles, Putting Stock in Trading Water at Forum, Nev. Appeal, (Aug. 20, 2015) http://www.nevadaappeal.com/news/local/putting-stock-in-trading-water-at-forum/.

Abrahm Lustgarten, A Free-Market Plan to Save the American West From Drought, The Atlantic, March 2016, https://www.theatlantic.com/magazine/archive/2016/03/a-plan-to-save-the-american-west-from-drought/426846/.

Erin McKenzie, Nevada City Tests Blueprint for Buying, Selling Water Rights, Duke U., Nicholas Inst., (August 19, 2016), https://nicholasinstitute.duke.edu/articles/nevada-city-tests-blueprint-buying-selling-water-rights.

Michael C. Young, Unbundling Water Rights: A Blueprint for Development of Robust Water Allocation Systems in the Western United States, Duke U., Nicholas Inst., (Sept., 2016), https://nicholasinstitute.duke.edu/sites/default/files/publications/ni_r_15-01.pdf

Water Info. Program, Ditches & Diversions (2017), https://www.waterinfo.org/colorado-water/ditches-diversions

John Fleck, Palo Verde Irrigation District Sues Metropolitan Water District Over Colorado River Water, Jfleck at Inkstain, (Sept. 21, 2017, 4:44PM), http://www.inkstain.net/fleck/2017/09/palo-verde-irrigation-district-sues-metropolitan-water-district-colorado-river-water/

Mark Squillace, The Water Marketing Solution, Colorado Law Scholarly Commons, (October 2, 2017, 9:35AM), http://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1753&context=articles

Sandra Zellmer, The Anti-Speculation Doctrine and Its Implications for Collaborative Water Management, 8 Nev. L. J. 994, 1011 (2008) http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1127&context=nlj


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.

Conclusion

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

Sources

Meg Graham, New City Digital Programs Target Stormwater, Underground Mapping, Chi. Trib. (Sept. 2015) http://www.chicagotribune.com/bluesky/originals/ct-city-digital-pilot-projects-bsi-20150914-story.html.

Whet Moster, In a City of Big Water Projects, Is Chicago’s Little Green Infrastructure Working?, Chi. Mag. (Dec. 12. 2016) http://www.chicagomag.com/city-life/December-2016/How-Big-Data-Can-Help-Little-Green-Infrastructure-in-Chicago/.

Jen Kinney, Chicago Uses Sensors to Judge Green Infrastructure, Next City (Dec. 15, 2016) https://nextcity.org/daily/entry/chicago-sensors-green-infrastructure-study.

Sean Thorton, How a Smart City Tackles Rainfall, Gov’t Tech. (Jan. 4, 2017) http://www.govtech.com/data/How-a-Smart-City-Tackles-Rainfall.html.

Chicago Launches Storm Water Management Pilot, Smart Cities Connect (Jan. 11, 2017) http://smartcitiesconnect.org/chicago-launches-storm-water-management-pilot/.

Mike Koon, CEE Professor Leading Smart Cities Project on Green Storm Water Infrastructure in Chicago, Eng’g at Ill. (Sept. 2015) http://engineering.illinois.edu/news/article/11775.

United States Environmental Protection Agency, Polluted Runoff: Nonpoint Source Pollution, (May, 2015) https://www.epa.gov/nps/what-nonpoint-source

Paul Greenberg, The Clean Water Act at 40: There’s Still Much Left to Do, e360, (May 2012) http://e360.yale.edu/features/the_clean_water_act_at_40_theres_still_much_left_to_do

Dave Levitan, To Tackle Runoff, Cities Turn to Green Initiatives, Yale Env’t 360 (Jan. 24, 2013) http://e360.yale.edu/features/to_tackle_runoff_cities_turn_to_green_initiatives.

Jessie Thomas Blate, A Story Of Salmon, Stormwater, And Sustainability, Am. Rivers (Oct. 26, 2016) https://www.americanrivers.org/2016/10/story-salmon-stormwater-sustainability/

Jessie Thomas-Blate, Tackling Stormwater Challenges On The Green-Duwamish, Am. Rivers (Nov. 2. 2016) https://www.americanrivers.org/2016/11/tackling-stormwater-challenges-green-duwamish/

Jen Kinney, Chicago Uses Sensors to Judge Green Infrastructure, Next City (Dec. 15, 2016) https://nextcity.org/daily/entry/chicago-sensors-green-infrastructure-study

Ian Bogost, Houston’s Flood is a Design Problem, Atl. (Aug. 28, 2017) https://www.theatlantic.com/technology/archive/2017/08/why-cities-flood/538251/

David Schaper, 3 Reasons Houston was a ‘Sitting Duck’ for Harvey Flooding, NPR (Aug. 31, 2017) https://www.npr.org/2017/08/31/547575113/three-reasons-houston-was-a-sitting-duck-for-harvey-flooding.

 


Background

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.

Conclusion

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.

 

Sources

Bear Republic Brewing Company and Cambrian Innovation Unveil Pioneering Wastewater Treatment to Energy System, Cambrian Innovation (Jan. 15, 2014), http://cambrianinnovation.com/bearrepublic_announcement.

Cassanra Profita, Why Dump Treated Wastewater When You Can Make Beer With It?, NPR (Jan. 28, 2015), http://www.npr.org/sections/thesalt/2015/01/28/381920192/why-dump-treated-wastewater-when-you-could-make-beer-with-it.

Hannah Fish, Effects of the Craft Beer Boom in Virginia: How Breweries, Regulators, and the Public Can Collaborate to Mitigate Environmental Impacts, 40 Wm. & Mary Envtl. L. & Pol’y Rev. 273 (2015).

Home Brew Competition to Feature Beer Made with Water from Wastewater Treatment Plant, Clean Water Services (Sept. 7, 2016), https://www.cleanwaterservices.org/newsroom/2016/home-brew-competition-to-feature-beer-made-with-water-from-wastewater-treatment-plant.

James Tilton, Drinking Beer is Not a Conservation Measure, U. Denv. Water L. Rev. (Nov. 24, 2015), http://duwaterlawreview.com/drinking-beer-not-a-conservation-measure.

K.C. Cunilio, An In-Depth Look at Yuengling’s 10 Million Dollar Clean Water Act Settlement, Porchdrinking.com (July 28, 2016), https://www.porchdrinking.com/articles/2016/07/18/in-depth-look-yuenglings-10-million-dollar-clean-water-act-settlement.

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.

 

Conclusion

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

Sources

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),

https://www.nytimes.com/2016/12/13/us/reversing-course-epa-says-fracking-can-contaminate-drinking-water.html.

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

http://thehill.com/policy/energy-environment/315607-trump-team-plans-big-cuts-at-epa.

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.”