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

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

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

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

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

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

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

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

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

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

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

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

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

Rebecca Spence

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

Sources:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kathleen (K.C.) Cunilio

Image: Flickr user Aram Vartian, Creative Commons.

Sources:

Colo. Const. art. XVI, § 5, 6.

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

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

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

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

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

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

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

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

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

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


A historic agreement between the federal government, two states, and a private power company means that four dams on the Klamath River are potentially slated for decommissioning and removal. The Klamath River flows from Oregon through California before finally emptying into the Pacific Ocean. The amended Klamath Hydroelectric Settlement Agreement (“KHSA”), signed on April 6th, 2016, may bring unexpected success to a decade-long negotiation involving big energy, tribal water rights, historic wildlife habitat preservation, and the intermingling of state and federal government regulatory agencies.

The first Klamath agreement was formally executed in 2010, and brought together the federal government, the state governments of Oregon and California, PacifiCorp, a large electric cooperative, and over forty additional signatories, including the Yurok and Karuk Tribes. Repeated congressional inaction halted the prior agreement’s implementation after Congress again failed to act before adjourning for the year on December 31, 2015.  On February 2, 2016, the Department of Interior, together with the Department of Commerce, California, Oregon, and PacifiCorp announced they agreed to amend the KHSA, which the parties eventually signed in April. The amended KHSA is the culmination of the Klamath Basin Restoration Agreement executed in 2010 and the Upper Klamath Basin Comprehensive Agreement signed in 2014.

In September, PacificCorp submitted the revised KHSA to the Federal Energy Regulatory Commission (“FERC”) for public review. On October 17, 2016, Interior Secretary Sally Jewell issued a letter to the Commission backing the dam removal.

Initially, the disputes in the Klamath Basin emerged as environmental and conservation groups (such as the Nature Conservancy, American Rivers, and Trout Unlimited) sought to restore 420 miles of historic salmon runs and riparian habitat. Moreover, these groups sought to eliminate the toxic algae blooms proliferating in the idle backwaters above the dams.

The most significant barrier to restoration of the river has been a dispute over the cost of retrofitting the aging infrastructure using modern technology and, alternatively, the cost of dismantling and removing the century-old structures and preparing the land to return to its original state.  According to several studies, the retrofit option would not only result in reduced electricity generation, but would also cost millions of dollars more than the removal.  However, the economic impacts extend beyond the estimated 450 million dollar cost of removal. A group of nearly one hundred, individual property owners have voiced opposition over the impact that dam removal would have on their lakefront property values adjacent to the reservoirs created by the dams.  Thus, a decrease in private property values could also accompany the dam removals.

Under the revised agreement, the states of California and Oregon will create a nonprofit entity, the Klamath River Renewal Corporation, which will take over Pacificorp’s current ownership of the dams.  This new owner will decommission and eventually remove the dams using existing federal authority. Both PacifiCorp ratepayers and a 2014 voter-approved water bond from the State of California has already generated funding for the decommission.

Notably, the most recent amendment lacks many government participation requirements from the original KHSA agreement.  The original agreement required Congress to pass legislation opening up significant funding, as well as the formal release of PacifiCorp from virtually any liability associated with the dam removal process. Congress’s inaction prompted the parties to exclude the Congressional participation requirement from the revised agreement.

In her recent letter of support to the FERC, Secretary Jewell called the plan a “unique opportunity to restore [a] magnificent [r]iver,” which  could help “re-write a painful chapter in our history” but still “[protect] the many interests in the Basin.” Secretary Jewell cited four key reasons for the Interior Department’s support: 1) the likely cost of removal is well below the funds that have already been obtained, 2) reservoir bottom sediment testing showed that chemical concentration levels were safe for release downstream, 3) the removal will result in the reopening of more than four hundred miles of salmon habitat, nearly doubling Chinook salmon production, and 4) the removal would improve water quality.

Although the agreement facilitates the removal of the dams, critics believe it fails to solve many of the problems it originally intended to fix, including resolving disputes over water rights, as well as effectively addressing specific allocations to farmers, wildlife refuges, and Native American tribes.  Notably, the Hoopa Valley Tribe did not sign the KHSA agreement amid concerns regarding certain provisions.  Further, the Klamath Tribes of Oregon did not sign the agreement, because its tribal members had yet to approve it through a popular vote.

While some issues may remain unresolved, the agreement represents an example of multiple entities and interests cooperating to effectuate the removal of the dams.  This agreement, if successful, may be an example and model for future change in the realm of water agreements. Curtis Knight, executive director of non-profit group California Trout expressed cautious optimism about the agreement, “[d]am removal is an essential first step, but certainly not the only step, in this process. California Trout remains committed to the comprehensive vision behind the hard-won Klamath Agreements, which identified a balanced approach to water use, environmental restoration, and community sustainability throughout the basin.”

DeWitt Patrick Mayfield

Image: PacifiCorp’s John C. Boyle Dam in Oregon, one of four dams slatted for decommission under the Agreement. Wikimedia user Bobjgalindo, Creative Commons.

Sources:

Bettina Boxall, Klamath River Dams Moving Toward Removal Despite Congressional Barriers, L.A. Times (Feb. 3, 2016), http://www.latimes.com/local/lanow/la-me-klamath-river-dams-20160203-story.html.

Thadeus Greenson, Feds Announce New Klamath Accord to Remove Dams by 2020, North Coast Journal (Feb. 2, 2016), http://www.northcoastjournal.com/NewsBlog/archives/2016/02/02/feds-announce-new-klamath-accord-to-remove-dams-by-2020.

Paige Blankenbuehler, On The Klamath, A Surprising Win For River Advocates, HIGH COUNTRY NEWS (Feb. 5, 2016), https://www.hcn.org/articles/how-conservatives-handed-environmentalists-what-they-wanted-klamath-dam-removal-without-concessions.

Peter Firmite, Remove 4 Dams on Klamath, Study Urges, S.F. Chronicle (Apr. 4, 2013), http://www.sfgate.com/science/article/Remove-4-dams-on-Klamath-study-urges-4411365.php.

Press Release, Dep’t. of Interior, Parties Agree to New Path to Advance Klamath Agreement (Feb. 2, 2016), available at https://www.doi.gov/pressreleases/parties-agree-new-path-advance-klamath-agreement.

Thadeus Greenson, UPDATED: California, Oregon Governors to Make ‘Major Announcement’ on Klamath, NORTH COAST JOURNAL (Apr. 4, 2016, 11:10 AM),  http://www.northcoastjournal.com/NewsBlog/archives/2016/04/04/california-oregon-governors-to-make-major-announcement-on-klamath.

Press Release, PacifiCorp, Parties Agree to New Path to Advance Klamath Agreement, (Feb. 2, 2016), http://www.pacificorp.com/about/newsroom/2016nrl/klamath-agreement.html.

Jonathan J. Cooper, Officials Sign Unusual Pact to Tear Down Hydroelectric Dams, ASSOCIATED PRESS (Apr. 6, 2016, 6:45 PM), http://bigstory.ap.org/article/235ba2f92ded43f3a8af971a52da17f2/officials-sign-unusual-pact-tear-down-klamath-dams.

Press Release, Dep’t. of Interior, Two New Klamath Basin Agreements Carve out Path for Dam Removal and Provide Key Benefits to Irrigators (last updated Apr. 14, 2016), available at https://www.doi.gov/pressreleases/two-new-klamath-basin-agreements-carve-out-path-dam-removal-and-provide-key-benefits.

Dan Bacher, Tribes, State and Feds Sign Klamath Dam Removal Agreement, DAILY KOS (Apr. 7, 2016, 1:36 AM), http://www.dailykos.com/stories/2016/4/7/1511799/-Tribes-State-and-Feds-Sign-Klamath-Dam-Removal-Agreement.

Will Houston, ‘Milestone’ moment: Klamath River dam removal plan submitted to feds, TIMES STANDARD NEWS (Sept. 23, 2016, 10:41 PM), http://www.times-standard.com/article/NJ/20160923/NEWS/160929892.

David Smith, Jewell supports dam removal in FERC letter, THE SISKIYOU DAILY NEWS (Oct. 16, 2016 8:59 AM)  http://www.siskiyoudaily.com/article/20161019/NEWS/161019616.

Letter from Sally Jewell, Secretary, U.S. Department of the Interior, to Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission (Oct. 17, 2016), available at https://bloximages.chicago2.vip.townnews.com/heraldandnews.com/content/tncms/assets/v3/editorial/3/2f/32f4ad9f-9d5d-5656-a7c4-3a4d5d4eacc2/5806b3b857502.pdf.pdf.


Compromise or Concession?

I. Introduction

The United States Forest Service (“Forest Service”) manages 193 million acres of land with a mandate to do so for the betterment of the public. As an agency within the Department of Agriculture, this usually manifests itself in the “multiple uses” management system that seeks to provide for outdoor enthusiasts, conservationists, and agriculturalists alike. But how does that directive mesh with ski resorts operating on public land that use scarce water resources to create snow? For the past half-decade, the Forest Service has been attempting to pass a regulation that would appropriate privately held water rights originating on National Forests back to federal government control. This article takes a brief look at the history of discord between ski resorts looking to develop on the publicly owned national forests, and the Forest Service. It also examines the lead up to, and consequences of, the most recent regulations imparting more federal control on water resources management in arid western states.

II. 100 years of Conflict

Ownership disputes of water rights developed and used on federal land dates back over one hundred years. The conflict playing out today, that of private landowners pitted against the Forest Service, spawned from restrictions on homesteading around the turn of the 20th century. When Gifford Pinchot, the first United States Forest Service leader, visited Colorado in 1909, westward-expanding citizens accused the Forest Service and the federal government of over-reaching their intended purpose, claiming they were “living in a state of fear.” The Forest Service had just enacted regulations removing tracts of national forest from homesteading availability. Over the last one hundred years, private landowners have butted heads with the federal government wanting more local control in lieu of federal oversight.

The relationship between Colorado water rights holders and the Forest Service is just as contentious today as it was when Pinchot visited the area over a century ago. The contentious relationship most recently manifested itself in a fight for control of water rights and permits that ski resorts use to manufacture snow. In 2004, the Forest Service attempted to create joint tenancy of water rights. In effect labeling themselves as “landlord” and ski resorts as “tenants.” Although applied to a few adjudications nationwide, many states do not recognize the concept of joint tenancy for water rights.

In 2011, the Forest Service issued a new regulation requiring ski area operators who develop new water rights within their ski permit areas to grant their newly acquired water rights to the United States Government. In 2011, the Forest Service applied this rule when the Powderhorn Ski Resort, near Grand Junction, changed hands. The Forest Service required the new owners to transfer their existing water rights to the government, conditioning the approval of the ski area purchase on the new owner’s acceptance of these terms. The ski resort industry fiercely criticized this policy, and many water rights holders were concerned about the supremacy of state water law over a forest service directive.

Traditionally states have had the sole authority to govern water rights creation and ownership within their borders, many water rights users saw this new policy as the federal government’s attempt to impose federal law in an area that state law wholly controlled. Later in 2011, the National Ski Areas Association (“NSAA”) filed suit in National Ski Areas Association, Inc. v. United States Forest Service. In reviewing the Forest Service regulation, the court held it was a new “legislative rule” subject to the requirements of the Administrative Procedure Act. Because the Forest Service did not publish its intent to create a new regulation, and sought no input from the public and those affected by the order, the Forest Service invalidly issued the rule.

Following the 2012 decision, the Forest Service engaged in a lengthy notice and comment period to fulfill its procedural obligations under the Administrative Procedure Act. The results of which yielded a regulation issued December 2015, and went into effect January 2016. The new policy is significantly different from the 2011 attempt, involving concessions and input from all interested parties, not just governmental.

III. Compromise and Concession

The latest iteration of the Forest Service’s attempt to secure title to water rights originating from federal land might best be described by the axiom, “(a) sign that a successful accord has been reached is that no one walks away from the table completely happy.”

Resorts gave up autonomous control of their water rights, which they previously enjoyed, and in return maintain the ability to buy and sell their water rights at will. However, in the wake of the Forest Service’s new policy, when ski resorts are sold and the buyer does not want to purchase the accompanying water rights then the federal government has the right of first refusal. Although a far cry from the Forest Service’s 2011 goal, the new rule provides a way to potentially gain water rights ownership, an important milestone, but the rule was not achieved without sacrifice.

This compromise can seem like a large departure when viewed in the context of the original 2011 Forest Service policy. The Forest Service intended to secure a concrete, real property interest in the water resorts use, the right of first refusal, created by the 2015 rule, is by no means a resounding success of obtaining that goal. Finally, the new regulation requires resorts to document whether their current water permits adequately address their needs or if they are using excess water. Aiming to hedge against water over use and potential resort water grabs, this requirement places an added administrative burden on resorts, but allows the Forest Service to better predict water supply shortages during droughts.

What might be the most telling fact about this process is who abstained from involvement. Refusing to throw punches at or for the Forest Service, local and regional environmental groups declined to extensively participate. Although not actively participating in the process, Ken Neubecker, Associate Director at American Rivers, was quick to caution against the direction the Forest Service is moving in this rule making, “[t]hey have a responsibility to the American public to manage these lands properly, and in the West, that means having some sort of administrative authority over what happens with water.”

IV. Conclusion

This struggle for authority over water rights is far from over. Environmentalists and recreationists alike are interested in what impact the new regulation has on water availability and the ability to enjoy the slopes. The immediate effect is maintenance of the status quo. Resorts still hold their water rights and the Forest Service allows the resorts to buy and sell the rights at their own discretion.

This means security for the snow conditions that draw tourists in from all over the country. It also means less than the ideal amount of Forest Service oversight and control. As long as resorts and other private companies continue to hold rights to water that originate on Forest Service land, in years of drought, water that could potentially assist agriculture, municipalities, or preserve local ecosystems will be in the hands of ski resorts for recreation.

Jackson Zoellner

Image: A backcountry skier atop Silverton Mountain in Silverton, Colorado. Flickr user Zach Dischner of Zach Dischner PhotographyCreative Commons.

Sources:

David Wise, Ending the Budget Wars, THE HILL OP ED (Nov. 5, 2013), http://thehill.com/blogs/congress-blog/economy-budget/189185-ending-the-budget-wars.

Ski Area Water Clause, 80 F.R. 81508, (Dec. 30, 2015) (to be codified at FSH 2709.11, Chapter 50).

Heidi Rucklidge, Ski Area Water Rights: Federal Water “Grab” Resolved?, WELBORN SULLIVAN MECK and TOOLEY PUBLIC LANDS BLOG (Feb. 22, 2016), http://www.wsmtlaw.com/blog/ski-area-water-rights-federal-water-grab-resolved.html.

Allen Best, Who Gave Up What In The Feud About Ski Areas and Water Rights?, MOUNTAIN TOWN NEWS (Feb. 6, 2016), http://mountaintownnews.net/2016/02/06/ski-area-water-rights-forest-lands/.

Nat’l Ski Areas Ass’n, Inc. v. U.S. Forest Serv., 910 F. Supp. 2d 1269 (D. Colo. 2012).

Jason Blevins, Forest Service Backs Off Controversial Water Clause in Ski-Area Permits, DENVER POST (June 18, 2014), http://www.denverpost.com/business/ci_29326058/forest-service-buries-plan-transfer-ski-area-water.

Paige Blankenbuehler, Forest Service Leaves Control of Water Rights to Ski Resorts, HIGH COUNTRY NEWS (Jan. 29, 2016), https://www.hcn.org/articles/new-forest-service-water-policy-leaves-control-of-water-rights-to-resorts.


Introduction

In the dry, arid desert of the United States, a streak of intense rain can leave residents, lakes, and cacti happy. And the sound of constant tapping of raindrops on windows in California, Nevada, and Arizona are soothing and welcome.  However, in Mexico City, these same sounds mean more than puddle hopping and umbrellas.  Instead, it means floodwater overwhelming the sewer systems and days of sludge and mud in citizens’ homes.  Naturally one wonders how a city often immersed in fresh water pouring from the sky has a water crisis resulting in a public health and environmental nightmare.  The answer lies within a history of poor decisions regarding infrastructure.

Mexico’s rainy season is intense and demonstrates that water is naturally meant to be a part of the landscape. Mexico City, the country’s capital, currently has one of the largest populations in the world, and its citizens are desperate for water. So how did Mexico City end up in a situation where—despite this abundance of water—people do not have enough water to bathe, cook, and maintain their communities?

When the Spanish conquered what is now Mexico City, it was an island located within Lake Texcoco, and while the Spanish were “enchanted” by the area, the lake environment did not captivate them.  The Spanish developed an engineering project that depleted the lake of its natural source of life, allowing for maximum expansion and development.  In an attempt to sustain this development, government administration began draining underground aquifers and nearby lakes. This practice remains in place today, centuries later, as the city’s population and demand for fresh water grows daily. City administrators also draw from underground aquifers as a means of supplying water to citizens, further exacerbating a lack of access to clean water by areas outside of Mexico City.

Marco Alfredo, president of the Mexican Association of Hydro-Engineers, best describes the present situation created by historical misuse: “Mexico City’s situation is chaotic and absurd.  We could have natural pure water, but for hundreds of years we have been draining it away so we have created an artificial scarcity.” he argues. “This is not an engineering problem: we have the expertise and the experience. It is also not a problem of economics: we have the financial resources to do what needs to be done. It’s a problem of governance.”

What is the Solution?

Most people are not surprised when they hear about violence associated with the drug cartels in Mexico. However, most might be surprised to hear is the “artificial scarcity” of water has taken on a similarly dangerous face, where Mexicans in poor neighborhoods hold water delivery truck drivers at gun point and rely on “dealers selling purified water” on the streets just to get access to safe drinking water.  One truck driver recalls being attacked by a mob of people: “They were desperate and angry, and they blamed me because I had water.”

The lack of access to clean water is not only a public health and safety concern, but it leaves those with unfettered access to clean water wondering how the gap between human rights and governance in Mexico City leaves families so desperate for water that they are willing to hold a delivery man at gunpoint to get it.

The government’s response to the crisis has been wildly insufficient.  However, activists, conservationists, and engineers in Mexico are trying to change the way the country views its naturally wet rainy season.  Historically, engineers have worked to create elaborate methods of depleting underground aquifers and lakes by piping, trapping, and diverting water.  Engineers and conservationists accept that “water has never completely stopped flowing naturally to where it historically belongs,” and they believe that the dreaded rainfall filling the streets with water could be a solution to Mexico’s crisis.  Valle de Chalco, once a large lake, is located within Mexico City’s watershed. About thirty years ago, the government tapped into and drained nearby aquifers resulting in ground sink.  As rain naturally fell in the area, the Valle de Chalco hole eventually filled with water, replenishing the once large lake.

Activist Elena Burns with the Water for People, Water for Life campaign, argues the Valle de Chalco lake “should be the heart of the solution,” and by making the lake an additional eight meters deep, “we’d have enough water for 1.5 million people.”  Burns, along with environmentalists, conservationists, scientists, and government officials in charge of dealing with the Mexican water crisis, see the value in naturally collecting rainwater in basins like Valle de Chalco. They argue that collecting rainwater in these types of basins can be done for minimal costs, offering long-term sustainability and turning the problem of rainwater and flooding into a solution for the city’s thirsty citizens.

In addition to the frustrations of activists and environmentalists, citizens are tired of waiting for the government to take action and have begun confronting the water crisis head on.  Like some water-conscious Americans, Mexican citizens are looking to water harvesting as a sustainable solution. Many businesses in Mexico have installed catchment systems that collect and filter rainwater. Hayley Hathaway is the director of Casa de Los Amigos, a business that uses a catchment system. She recognizes that the benefit of these systems is not only that they provide citizens with access to clean water, but also that they ease some of the strain on the city’s infrastructure when it floods: “when it rains, it’s just disastrous in the city, with flooding everywhere.  So if everyone had their own rainwater system, it would solve a pretty big chunk of that problem.”  In other words, if families had the means to collect rainfall before it had the chance to accumulate, it could solve two separate water issues at once: flood prevention and drinking water.

Conclusion

Ramon Aguirre Diaz, the director of Mexico City Water Department argues that in reality  water harvesting is not likely to be successful in Mexico because the cost of implementing such infrastructure is not “financially viable.”  But that viewpoint comes as no surprise to the activists and environmentalists that have long recognized the Mexican government’s deep commitment to large, costly projects rather than small, sustainable changes.  Thus, they have turned their attention to grassroots movements and local citizens to institute change little by little, providing access to rainwater harvesting equipment for individual households.  Although change at the municipal level appears to be nearly impossible, the thirsty citizens are motivated and eager to implement changes to help sustain their own families, leaving activists hopeful for the future.  After all, the Aztecs did not build Teotihuacan pyramids in a day.

Lauren Collins

Image: A tormenta (storm) in Monterrey, Nuevo Leon, Mexico. Flickr user Rick González, Creative Commons.

Sources:

Jennifer Collins, Going local to solve Mexico City’s water crisis, DEUTSCHE WELLE, (Oct. 20, 2015), http://dw.com/p/1GqnH .

Jonathan Watts, Mexico City’s water crisis – from source to sewer, THE GUARDIAN, (Nov. 12, 2015), http://gu.com/p/4dmxy/sbl .

Kathryn Dickason, Stanford historian unearths greed-drenched origins of Mexico’s groundwater crisis, STANFORD NEWS, (Oct. 17, 2014), http://news.stanford.edu/news/2014/october/mexico-water-crisis-101714.html .

Marianne Goodland, Could this be the year for rain-water barrels in Colorado?, THE COLORADO INDEPENDENT, (Mar. 8, 2016), http://www.coloradoindependent.com/158191/could-this-be-the-year-for-rain-water-barrels-in-colorado.

Ioan Grillo, Dry taps in Mexico City: A water crisis gets worse, TIME MAGAZINE, (Apr. 11, 2009), http://content.time.com/time/world/article/0,8599,1890623,00.html?artId=1890623?contType=article?chn=world.

 


I. Introduction

Under the doctrine of prior appropriation, the acquisition of water rights is based on the principle: first in time, first in right. As a result, this system has the capacity to create winners (the senior water rights holders) and losers (the junior or no water rights holders). In times of drought, this problem is exacerbated.

In Estate of Steed v. New Escalante Irrigation Co., the Supreme Court of Utah rejected a proposal for balancing the interests of senior and junior water rights owners. Instead, the court concluded that “both parties cannot ‘win’ [because] the law simply favors the first user.” The court stated that “when there is not enough water to satisfy the needs of all users, the user who depends upon another’s seepage and runoff will suffer.”

Citing a strong policy of conservation underlying its water law as the reason for its decision, the court refused to recognize that return flows—resulting from the inefficient irrigation practice existing at the time—were legitimate means of supplying water rights to others. Although acknowledging that water users may appropriate wastewater and obtain protection against junior appropriators, the court stated that Utah water law encourages improvements in irrigation efficiency and the junior water appropriator of wastewater cannot compel the continued wasteful use of water. The adoption of improved and more efficient conservation technologies thereby brought benefits to the irrigator, including increased crop production and lower irrigation costs, but unfortunately, this development occurred at the expense of junior water-right holders. The result is increased pressure on an already over-appropriated Western water system and a greater divide between the “winners” and “losers.” While the court encouraged farmers to conserve and efficiently use water to ensure they retain all of their allocated water rights, this ruling discouraged the spread of water rights to different uses.

In the face of a changing climate and increasing urbanization in the West, water transfers could help arid regions meet growing demands for water through implementation of voluntary market-based sales and leases of water rights. Water rights may be transferred by sale, lease, or exchange. A water transfer is a voluntary agreement that results in a change in the type, time or place of use of a water right. A transfer may not exceed the quantity of rights held by the transferor, but may change the use of the water, the location, the time it is released, and the point of diversion. Water transfers are a means of making water available to those who don’t hold senior water rights. Water transfers can facilitate and enable the use of water, as necessary, for agricultural, municipal, industrial energy and environmental uses. Such transfers afford the opportunity to maximize the use of the available water supplies and promote the most efficient use of water.

Transfers of water could also be used to mitigate the impact of the holding in Estate of Steed, which ultimately promoted the inefficient use of water. Water transfers could potentially help balance the interests of senior and junior water rights owners by encouraging the water rights holder to better conserve his or her water and lease the remaining water rights for a limited time. As a result, this water will become available for junior water rights holders for the market price.

While voluntary water transfers have occurred for years, there are many barriers that water appropriators face when attempting to transfer water, including the lack of accurate and reliable information. Currently there is a high demand for water to be transferred from agriculture to uses that return higher economic benefits. This is most clearly evidenced by the circumstances of farmers in Northern California who hold senior water rights. With droughts plaguing arid climates, farmers are finding that their most valuable asset is no longer their crops, but rather their water rights. Therefore, farmers often face a choice between fallowing a field to lease out that water or continuing to farm the land without leasing any of the water rights.

This economic dilemma—which results in either an inefficient use of water resources or a loss in profits for a farmer—may soon disappear with changes in technology. Recently, farmers have found a third option that allows them to continue farming the land while implementing efficiency measures to significantly reduce water use for the same crop yield and then leasing that saved water to others in a high-demand market. A new technology, Sustainable Water and Innovative Irrigation Management (SWIIM), could provide the information necessary to help facilitate water transfers, and, thus, maximize the utility of this precious and dwindling resource. SWIIM helps farmers (1) conserve water; (2) more easily prove conservation efforts and successes to regulators more easily; and, (3) lease their excess water to municipalities, industrial users, or other farmers and individuals seeking additional water resources.

II. Non-Use, Forfeiture, and the Difficulty of Proving Conservation Encourage Waste—the Law Behind Estate of Steed

Water rights acquired by prior appropriation may be lost if the allocated water is not fully consumed each year. The general rule is that as soon as the water leaves an appropriator’s land and enters, or is destined for, a natural stream, it becomes subject to appropriation by other users. Typically, in farming only a portion of the allocated water is actually consumed for irrigation. The amount that does return to the stream—return flow—thereafter becomes available for others to divert.

Appropriators may also lose their water rights if they do not use their water for a significant period of time. Non-use for a significant period of time, coupled with intent to relinquish water rights, is sufficient to constitute abandonment of a water right. However, because water is such a scarce commodity, it is rare that a right holder will have the requisite intent to abandon a right. More likely, the water right holder may lose its water right despite the absence of any intent to do so under a forfeiture statute for non-use. Under the forfeiture statute for non-use, those appropriators who fail to beneficially use all of their allotted water, risk losing the rights to this water.

Although conserving water is a beneficial use and therefore will not result in a reduction of water rights, the burden is on the appropriator to prove such conservation to the authorities. Unfortunately, calculating the amount of water conserved is very complicated and an imprecise. Accordingly, rather than risk losing valuable water rights, appropriators, like the farmers in the Estate of Steed, are thereby discouraged from adopting more efficient methods of operation and conserving water to lease. Instead, water appropriators have a financial incentive to use all of their water rights, however inefficient such use may be, to avoid the risk of forfeiture. This logical consequence of our current system promotes the inefficient and illogical incentive to flood lands and reuse instead of applying that extra water to a more productive use that will return higher environmental, economic, and social benefits.

The transfer of water is further complicated when the water rights are conveyed separately or there is a different use contemplated. The laws of water take extra precaution by ensuring that the rights of other stream appropriators are not negatively impaired. This special protection comes in the form of the no-harm rule.

In sum, farmers who reduce water use do not necessarily see their “savings” translate into that same amount of conserved water being available to lease to someone else for a different—and possibly more important—use. Rather many farmers conclude that the lack of information available to senior appropriators makes it extraordinarily difficult to transfer water, and the possibility of losing their unused water rights is too great to risk implementing more efficient conservation technologies. As a result, these right holders have been notoriously resistant to water conservation because the legal system has created a financial disincentive that actually promotes inefficient use. In effect, the overly complicated process of transferring water actually discourages water conservation and creates a perverse motivation for farmers to overwater their crops merely to avoid losing water rights.

III. The Short-Term Solution: Transfer of Water

Water transfers could be one method of allowing water managers to combat drought-riddled areas and repurpose existing water resources for new and more beneficial uses. Transfers of water could help improve farming practices, further energy development, and meet the demands of increasing urbanization. States can also develop new infrastructure and storage capabilities, implement conservation and efficiency initiatives, and promote water reuse projects.

In general, water transfers are done on an ad-hoc basis and there are barriers to overcome. In particular, measurement poses a difficult problem for authorities attempting to regulate use. This problem is exacerbated by the limited data available on the amount of water used. However, SWIIM can help facilitate the transfer of water; and thereby help farmers sell their extra water so it could be utilized for other uses. SWIIM has the capacity to accomplish these tasks by allowing farmers to assess all of their economic options. The program instructs the farmer on what crops can be grown, the expected yields that can be anticipated from each of these various crop options, and the amount of water required to achieve the various crop yields. SWIIM is also a tool that provides a guide to the farming interest in how to sell or lease water rights, thereby enabling the farm to retain a sufficient amount of their water rights to continue productive farming. Most importantly, this new system can work in a manner that is consistent with the western doctrine of prior appropriation and still help expedite water transfers. As a result, the prior appropriation doctrine may continue serving as the legal framework to guide the allocation of water resources, while incorporating the flexibility to meet evolving needs through the promotion of more efficient utilization of water rights in a rapidly changing environment.

SWIIM’s software enables farmers to lease their extra water to others. This program allows farmers to quote the availability of water and provide it to other users who need this resource—sharing the water for the best and most efficient use. Farmers who hold the most senior water rights in a region will no longer have the economic incentive to flood their fields with little regard for efficiency. Instead, this program creates a new opportunity for both the farmer in particular and society in general, whereby the farmer maximizes the economic return on the use of water and others can receive the benefit of a limited resource that would otherwise be unavailable.

To utilize the program, the farmers must enter detailed information about past use of their land and water rights and then identify measures that they are willing to adopt to reduce water use. Using data from irrigation districts, field instruments, weather reports, satellites, and low-altitude flights, the SWIIM software calculates in real time how much of a farm’s water is consumed and how much returns to underground flows—thereby ensuring that farmers do not jeopardize their rights if they choose to sell or lease their conserved water. Using the information provided, an algorithm developed jointly with the U.S. Department of Agriculture informs farmers how to conserve water, by adopting efficient measures such as a targeted drip-irrigation system that will not result in reduced productivity.

IV. Conclusion

With an influx of population and industries settling in the water-scarce West, combined with an increasingly arid climate, SWIIM could help evaluate and facilitate how society utilizes water transfers as a means of allocating a vital resource. This technology will enable stakeholders to learn from other’s experiences with water transfers, thereby facilitating more informed and efficient decisions with respect to the use of their water rights. SWIIM facilitates water transfers to other uses while avoiding inflicting harm to agricultural economies and surrounding communities.

The law encourages implementation of improvements in water systems to promote the conservation of water. However, to effectively implement such improvements, water rights owners should not be penalized for conserving water. Instead, there should be an incentive system to economically reward implementing water conservation practices. SWIIM offers a market-based solution that could be regulated to ensure there is equal water distribution to municipalities and individuals in need of this vital resource. The purpose of water transfers and the utilization of the SWIIM system, is not to “dry” up the farm. Rather, it is to move the water efficiently where needed, without adverse economic consequences to the senior right holder. When we “free-up” the water, we can grow as a society, conserve water and utilize the flexibility that the prior appropriation doctrine is intended to allow.

Managing California’s complex water storage and delivery system is a never-ending balancing act between supply, demand and environmental considerations, particularly during a severe drought. As water scarcity reaches unprecedented extremes in the West, SWIIM technology could help mitigate the impact in the region. It provides one method of managing drought and is a welcome new addition to the state’s water market.

References

See generally Gunnison Irrigation Co. v. Gunnison Highland Canal Co., P. 852 (1918).

See generally Estate of Steed v. New Escalante Irr. Co., 846 P.2d 1223, 1228 (Utah 1992).

SWIIM home, http://www.swiimsystem.com/home.aspx, (last accessed September 23, 2015).

DAVID H. GETCHES, WATER LAW IN A NUTSHELL (5th ed. 2015).

Hallie Jackson and Elizabeth Chuck, Farmers Faced With Whether to Grow Crops or Sell Water, April 4, 2015, http://www.nbcnews.com/storyline/california-drought/grow-crops-or-sell-water-california-farmers-face-dilemma-n335696.

Greta Kraul, Airbnb for water seeks to help farmers transfer surplus, S.F. GATE (April 21, 2015) http://www.sfgate.com/business/article/Airbnb-for-water-seeks-to-help-farmers-transfer-6215032.php.

A. DAN TARLOCK ET AL., WATER RESOURCE MANAGEMENT A CASEBOOK IN LAW AND PUBLIC POLICY (Robert C. Clark et al. eds., 7th ed. 2002).

“The Story of Regenesis Management Group: Balancing Water Use for Profit and Conservation” (PDF). COLORADO WATER, NEWSLETTER OF THE WATER CENTER OF COLORADO STATE UNIVERSITY 28 (1): 19.

Lorraine Chow, Can This ‘Airbnb for Water’ Help Drought-Stricken Farmers?, ECO WATCH, (April 27, 2015) http://ecowatch.com/2015/04/27/swiim-app-drought-farmers/.

Greta Kraul, Airbnb for water seeks to help farmers transfer surplus, S.F. GATE (April 21, 2015) http://www.sfgate.com/business/article/Airbnb-for-water-seeks-to-help-farmers-transfer-6215032.php.

Larua Bliss, It’s About to Get Easier For California Farmers to Conserve Water—And Sell It, CITY LAP (July 10, 2015) http://www.citylab.com/weather/2015/07/its-about-to-get-easier-for-california-farmers-to-conserve-waterand-sell-it/398144/.

Jennifer Najjar

Image: An aerial shot of Ririe Dam in Bonneeville, Idaho.  Flickr user Sam Beebe, Creative Commons.

 


UNIVERSITY OF DENVER SUSTAINABILITY OFFICE: THE GREAT DIVIDE MOVIE SCREENING WITH QUESTION AND ANSWER SESSION

Last winter, the University of Denver Sustainability Office and the Anderson Academic Commons Sustainability Committee hosted a screening of “The Great Divide,” a documentary on the history and future of Colorado water.  Havey Productions, in association with Colorado Humanities, created the video and released it in the summer of 2015.  Currently, there are screenings in various locations.  The documentary includes footage from throughout Colorado, including the Colorado River and other areas where Colorado water flows.  It provides a way to look forward regarding Colorado’s water consumption by looking backwards through history.

The documentary provided a fascinating look into all aspects of Colorado water history, replete with historic photos, videos, and expert commentary.  It contains four easy-to-follow sections with in-depth analysis of different aspects of Colorado’s water.

First, the viewer learns about the history of Colorado water, starting with pre-settlement history and moving through modern developments.  This includes how the early settlers and survey teams viewed water in Colorado.  The documentary then discussed how the lack of rain and wet ground led to ditches and the application of Spanish law.  It then covered how Spanish law led to the famous case, Coffin v. Left Hand Ditch Co., 6 Colo. 443 (Colo. 1882), which established that the prior appropriation doctrine, rather than riparian proprietorship, applied to Colorado water rights.

The documentary’s next section explored the impacts of agriculture and urbanization on development and law.  It discussed the growth of agriculture in Colorado, starting with sugar beet farming in Weld County and orchards in the West.  The documentary also covered the development of in-stream storage projects to try and meet seasonal flow demands.  It explained how the use of storage and diversion projects allowed farmers to use the arid landscape for major agricultural projects as they continue to do today.  The documentary then looked at growth of Front Range cities and how the growth has led to a need for urban water in addition to the water needed for agriculture.  The section ended by addressing problems and alternatives to the growing “buy and dry” policy that some cities have which transfers agricultural water rights to cities and municipalities that need water for their citizens.

The documentary’s third section discussed the environmental movement and the changes in law and policy that resulted from the movement.  It explained how Colorado used inter-basin tunnels and large dams to move and store water in order to meet the needs of the growing Front Range at the expense of the Western Slope.  It then discussed how various projects have directed water from their natural paths into the areas that need water.  This set the stage to discuss how these projects have impacted the areas supplying water and why Colorado needed new laws and policies.  The documentary continued by providing an in-depth discussion of the Colorado River Compact and its limits on local water use and required downstream flows.  It also discussed how Colorado cities have now started a movement to try and make laws that keep sufficient water in the Western Slope in order to support recreation, parks, and the mountain ecosystem.

Finally, the documentary discussed Colorado’s history of conflict over water.  It focused on major disagreements concerning moving Western Slope water to the Front Range, and the way those conflicts morphed into an attitude of cooperation.  The documentary ended by looking at a variety of methods of conserving water and saving aquifers and stream flows.  Specifically, the documentary touched on inter-basin compacts, Aurora Water’s renewable water loops, and the Colorado Water Plan.

Gregory Hobbs, Jr., Senior Water Judge and former Colorado Supreme Court Justice, and Kristin Maharg, the director of programs for the Colorado Foundation for Water Education, answered questions after the showing.  One audience member asked what efforts there were to conserve water without costing people their existing rights.  Justice Hobbs discussed the various existing methods, such as sustainable groundwater management, augmentation plans, and some of the effects on fossil groundwater sources.  Ms. Maharg discussed how agriculture water consumption relates to consumer spending habits and how some farmers are selling their underutilized water rights.

Another audience member asked how the current laws impacted the controlled release of water from dams and why the dams did not release the water in a power-generating way.  Justice Hobbs responded that agreements on water levels in Lake Powell and Lake Mead required those releases and that the releases were to control sedimentation, rather than to generate power.  The question and answer section concluded with an audience member asking if there were any state initiatives to help farmers obtain new infrastructure, cooperatives, and terminal markets to grow less water-intensive crops than they currently grow.  Justice Hobbs did not think that there would be any state intervention and that this private funding would handle these kinds of initiatives.

The Great Divide documentary and book are available to order online at www.thegreatdividefilm.com.

Robert Petrowsky


Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Introduction

The Agua Caliente Band of Cahuilla Indians (“Agua Caliente”) holds impliedly reserved water rights in the Coachella Valley in Southern California.  President Ulysses S. Grant established the Agua Caliente’s reservation by Executive Order in 1876.  Today, water in the Coachella Valley is scarce, and the Agua Caliente seeks to satisfy the tribe’s needs by asserting that the tribe’s reserved water rights include the right to groundwater resources.  However, controlling law is unclear on the issue of whether tribal reserved water rights extend to groundwater.  State supreme courts are split on the issue.  The U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) will be the first federal court of appeals in forty years to address the issue.  Specifically, the Ninth Circuit will consider whether when the government created Agua Caliente’s reservation the government impliedly reserved rights to groundwater in the context of California’s correlative water rights framework.

Background on Federal Reserved Rights to Water

Federal law provides a framework for Native American tribes’ possession of water rights.  These tribal water rights impliedly arise from the establishment of the reservation.  The reservation grant thus provides a property right to the land and an implied right to sufficient water to fulfill the purposes of the reservation.  Winters v. United States was the seminal case that established the implied reservation doctrine.  The Supreme Court held in Winters that the Fort Belknap tribes gained the right to use unappropriated water from the Milk River for the reservation needs.

Tribal reserved rights vest at the creation of the reservation and hold priority over those of future appropriators.  Tribes do not abandon the reserved rights by nonuse.  Further, most federal reservations predate, and therefore hold priority over, state water law rights.  Prior court decisions further explain the application of Winters to groundwater.

Tribal Reserved Rights to Groundwater Recognized by Litigation

The Agua Caliente court found persuasive that every court, with the exception of the Wyoming Supreme Court in a 1989 decision, that has addressed the issue of whether Winters extends to groundwater held in the affirmative.  Many courts declined to directly address the issue, but acknowledged the possibility that Winters could encompass groundwater.  The cases that have previously recognized tribal reserved rights to groundwater are not abundant, but they followed one of two lines of reasoning.  Some courts relied on the hydrologic interrelationship between groundwater and surface water to find that Winters applies to both.  Other courts took a logical approach and reasoned that groundwater should be available to fulfill a water reservation along with surface water.

In In re Gila River System & Source, the Arizona Supreme Court was the first court to expressly hold that the federal reserved rights doctrine extended to groundwater.  The Gila court’s 1999 opinion acknowledged that the hydrological connection between groundwater and surface water is such that groundwater pumped from a distance may significantly diminish the surface flow.  Nonetheless, Gila deemed the distinction between groundwater and surface water as insignificant for purposes of applying the reserved rights doctrine.  Even though the Gila court expressly extended the reserved rights doctrine to groundwater, it restricted tribal rights to groundwater.  Gila limited tribal reserved rights to groundwater to “where other waters were inadequate to accomplish the purpose of the reservation.”

In 2002, the Montana Supreme Court recognized a tribal federal reserved right to groundwater in Confederated Salish & Kootenai Tribes v. Stults.  In Salish, the court prohibited the state agency from issuing water use permits until the Confederated Salish and Kootenai Tribes quantified their water rights.  Like Gila, the court noted that the groundwater must be necessary to fulfill the purposes of reservation, but refrained from determining whether the groundwater at issue met this standard.  Instead, the court ruled that the tribes’ federally reserved water rights included groundwater.  The court’s holding was rooted in logic.  The court failed to find a reason to exclude groundwater from the tribes’ reserved water rights, so it refrained from limiting the tribes’ rights in such a way.

The hydrological connection between groundwater and surface water formed the basis of the Ninth Circuit’s extension of Winters to groundwater in United States v. Orr Water Ditch Co.  In that case involving the Pyramid Lake Indian Reservation, the court reasoned that the reciprocal hydraulic relationship between groundwater and surface water is such that allocations of groundwater would predictably affect the surface water in a nearby flowing river.  Further, the court interpreted the decree that reserved water in the Truckee River included a right to groundwater if the Pyramid Lake Paiute Tribe needed groundwater to fulfill the purpose of the reservation.  The court additionally held that because the tribe’s decreed rights were the two most senior water rights in the Truckee River and those rights extended to groundwater, other users’ allocations of groundwater may not adversely affect the tribe’s right to the surface water.

In New Mexico ex rel. Reynolds v. Aamodt, a New Mexico district court extended Winters to groundwater for hydrological reasons.  This case involved the Pueblo Indians’ prior right to water in a Rio Grande tributary for domestic and irrigation uses.  The decree gave the tribe water rights appurtenant to its irrigated acreage.  The court held that water rights appurtenant to the tribe’s land included groundwater because groundwater and surface water were physically interrelated, and therefore both were appurtenant to the tribe’s land.

Tribal Reserved Rights to Groundwater Recognized by Settlement

Indian Tribes have entered into settlement agreements to resolve disputes over federally reserved rights to groundwater.  Many of these settlement agreements expressly recognized tribal federally reserved rights to groundwater.

For example, a 2007 settlement agreement between the United States, the Lummi Indian Nation, and the State of Washington recognized the tribe’s right to groundwater on the Lummi Reservation in Northwest Washington.  The agreement resolved a water rights case in which the U.S. District Court for the Western District of Washington held that Winters rights on the Lummi Reservation extend to groundwater.  The agreement gave the Lummi the right to groundwater on the Lummi Peninsula.  Specifically, the agreement allocated the right to use 120 acre-feet per year of groundwater to the State of Washington, Department of Ecology, and the remainder of the groundwater to the Lummi.  The Lummi gained the exclusive right to regulate the use of groundwater underlying the reservation, and the agreement prohibited groundwater withdrawal unless the Lummi had authorized the withdrawal.

In addition to court settlements, state and federal settlement acts have resolved disputes over groundwater rights.  Many of these settlement acts recognize a tribal reserved right to groundwater.  One such federal settlement act is the Snake River Water Rights Act of 2004.  This act resolved water rights disputes between the Nez Perce Tribe, the State of Idaho, and private water rights holders.  The settlement act clarified water rights in the Snake River Basin in Idaho, and it allocated to the tribe the right to groundwater.  Focusing on the hydrological connection between groundwater and surface water, the settlement quantified the tribe’s right to surface water and stated that the right extends to the groundwater source beneath.

Limitations on Use of Tribal Reserved Rights to Groundwater

Several courts that recognized tribal reserved rights to groundwater placed limitations on the rights.  Federal reservation grants originally derived from the idea that the water is impliedly reserved to the extent that the water is necessary to fulfill the purpose of the reservation.  The Ninth Circuit has broadly defined the purpose of the reservation as it relates to water rights in order to provide a home for native peoples.  Courts that analyzed groundwater in the context of Winters considered whether groundwater was necessary to fulfill the reservation’s purpose.  The reservation grant itself thus set an initial, and broad, limitation on groundwater rights.  Courts have limited tribal reserved rights to groundwater based on quantity, pumping maximum, purposes of groundwater usage, sales outside the reservation, and necessity.

The Nevada Supreme Court limited the quantity of groundwater allocations on the Pyramid Lake Indian Reservation in Pyramid Lake Palute Tribe of Indians v. Ricci.  The court established the limitation on groundwater as the amount of water in the Orr Ditch Decree adjudication.  The court held that while the decree impliedly gave the Pyramid Lake Palute Tribe a right to groundwater, the decree restricted that right to the tribe’s personal yield of water as set forth in the decree.  Because the specified amount of water in the decree represented the tribe’s full adjudication, the tribe had no right to groundwater in excess of that amount.

In a 1990 settlement agreement between Idaho and the Shoshone-Bannock Tribes, the tribes discussed the right to water under, arising on, flowing across, adjacent to, or otherwise appurtenant to the reservation.  The agreement limited the tribes’ respective rights in terms of necessity: the agreement restricted the tribes’ use of groundwater to instances where their diverted water from other sources was insufficient.  If the one of the tribes diverted less than the agreed-upon quantity, the tribe had the exclusive right to divert groundwater.

A settlement contract between the Jicarilla Apache Tribe and the United States limited groundwater rights with regard to the effect on the surface water sources.  The contract addressed water rights in the Navajo River, Navajo Reservoir, and San Juan-Chama Project.  Under the contract, the tribe had the express right to adjudicate water rights from either the groundwater or surface water.  The tribe gained the right to lease its water off-reservation, but the contract prohibited the tribe from withdrawing groundwater if doing so would adversely impact the surface water source.  As an additional measure relating to the protection of surface water sources, the contract required the tribe to implement a conservation program.

Previous Cases and Potential Guidance to Examining Agua Caliente Defendants’ Arguments

The Agua Caliente court distinguished the water at issue from other cases recognizing tribal reserved right to groundwater.  Many prior cases focused on the hydrological connection between surface water and groundwater to extend Winters to groundwater.  However, Agua Caliente did not involve hydrologically connected groundwater and surface water.  The defendants in Agua Caliente argued that the tribe did not need groundwater to fulfill its reservation’s purpose, so Winters did not apply.  Various courts have previously considered this argument, but each court implemented a somewhat different solution.  Nonetheless, reference to the history and trends of previous cases may help define and clarify the scope of the reserved rights doctrine in relation to the Agua Caliente groundwater.

Daphne Hamilton, J.D., University of Denver College of Law, 2016

Image: Cahuilla Tewanet Vista Point, Santa Rosa / San Jacinto Mountains, California.  Flickr user Tony Webster, Creative Commons.

 

Sources:

Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, No. EDCV 13-883-JGB, 2015 WL 1600065 (C.D. Cal. Mar. 20, 2015).

Arizona v. California, 373 U.S. 546 (1963).

Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981).

Confederated Salish & Kootenai Tribes v. Stults, 59 P.3d 1093 (Mont. 2002).

In re Gila River Sys. & Source, 989 P.2d 739 (Ariz. 1999).

In re Snake River Basin Water System, 764 P.2d 78, 81 (Idaho 1988), agreement ratified by Snake River Water Rights Act of 204, Pub. L. No. 108-447, 118 Stat. 2809.

New Mexico ex rel. Reynolds v. Aamodt, 618 F.Supp. 993, 1010 (D.N.M. 1985).

Pyramid Lake Palute Tribe of Indians v. Ricci, 245 P.3d 1145 (Nev. 2010).

United States v. Orr Water Ditch Co, 600 F.3d 1152 (9th. Cir. 2010).

United States ex rel. Lummi Indian Nation v. Washington, Dep’t of Ecology, (W.D. Wash. Nov. 20, 2007) (approving settlement agreement).

Winters v. U.S., 207 U.S. 564 (1908).

Settlement Agreement: Contract between the US and the Jicarilla Apache Tribe (Dec. 8, 1992).

Royster, Judith V., 47 Idaho L. Rev. 255, Conjunctive Management of Reservation Water Resources: Legal Issues Facing Indian Tribes (2011).

The 1990 Fort Hall Indian Water Rights Agreement (Jul. 10, 1990).