Ridenbaugh Press/Water Rights

An Oregon Supreme Court decision in the case Klamath Water District et al v. United States, a case referred to it (partially) from the 9th Circuit Court of Appeals, is being roundly praised by water user advocates.

The Oregon court said the referrals “ask whether, as a matter of state law, the farmers and irrigation districts that use water from a federal reclamation project have an equitable property interest in a water right to which the United States holds legal title and whether an equitable property interest in a water right is subject to adjudication in the ongoing Klamath Basin water rights adjudication.”

In background, the court said “The Federal Bureau of Reclamation manages the Klamath Project, which stores and supplies water to farmers, irrigation districts, and federal wildlife refuges in the Klamath River basin. The plaintiffs in the underlying federal litigation are farmers and irrigation districts that use water from the Klamath Project for irrigation and other agricultural purposes. As a result of drought conditions in 2001, the Bureau terminated the delivery of water to plaintiffs that year in order to make water available for three species of endangered fish. Claiming a property right in the water, plaintiffs brought an action in the United States Court of Federal Claims, alleging that the United States had taken their property in violation of the Fifth Amendment and, alternatively, that the United States had breached its contractual obligation to deliver water to them. The United States asked the federal claims court to abstain from deciding plaintiffs’ takings claim until an ongoing state water rights adjudication determined what, if any, property rights plaintiffs had in the water from the Klamath Project.”

In response, the court concluded:

In summary, in answering the Federal Circuit’s questions, we have assumed that the United States appropriated the right to use the waters described in its notice and that it presently holds legal title to that water right. We also have assumed that plaintiffs are asserting only an equitable or beneficial property interest in the water right to which the United States holds legal title. Who presently holds legal title to that water right and the scope of that right are questions for the Klamath Basin adjudication, and we express no opinion on those issues. Given those assumptions, we have answered the court’s questions as follows:

1. The 1905 Oregon act did not preclude plaintiffs from acquiring an equitable or beneficial property interest in a water right to which the United States holds legal title. Moreover, under the 1905 act, a formal written release from the United States is not necessary for plaintiffs to have acquired an equitable or beneficial property interest in the water right that the United States appropriated.

2. Under Oregon law, whether plaintiffs acquired an equitable or beneficial property interest in the water right turns on three factors: whether plaintiffs put the water to beneficial use with the result that it became appurtenant to their land, whether the United States acquired the water right for plaintiffs’ use and benefit, and, if it did, whether the contractual agreements between the United States and plaintiffs somehow have altered that relationship. In this case, the first two factors suggest that plaintiffs acquired a beneficial or equitable property interest in the water right to which the United States claims legal title, but we cannot provide a definitive answer to the court’s second question because all the agreements between the parties are not before us.

3. To the extent that plaintiffs assert only an equitable or beneficial property interest in the water right to which the United States claims legal title in the Klamath Basin adjudication, plaintiffs are not “claimants” who must appear in that adjudication or lose the right. As a general rule, equitable or beneficial property interests in a water right to which someone else claims legal title are not subject to determination in a state water rights adjudication.

Nancie G. Marzulla, lead counsel for the Klamath water users, remarked that “We are thrilled with this decision. The trial judge obviously was wrong on Oregon law and plainly misapprehended how federal reclamation law operates. We are glad that we now have some definitive guidance and direction for the trial court as we go forward to complete this litigation.”

The firm also said in a statement, “The Oregon Supreme Court held that the Oregon legislature in 1905 did not give away all of its water rights in the Klamath Reclamation Project to the federal government. Further, the Court stated that whatever rights the federal government did acquire in 1905 were for the benefit of the water users: ‘[I]n acquiring water rights under the aegis of the Reclamation Act, the United States was not acting for its own benefit, but for the benefit of the persons who Congress intended would put the water to beneficial use reclaiming the land’ — in other words, the farmers who are the plaintiffs in this lawsuit. Finally, the Oregon Supreme Court held that the Klamath Basin adjudication that is currently underway does not deprive the water users of the ability to pursue their taking claim in federal court, explaining that ‘[a] person asserting only a beneficial or equitable property interest in a water right is not a ‘claimant’ who must appear in the Klamath Basin adjudication and file a claim to determine that interest.’”

Tom Stehn of U.S. Fish & Wildlife Service transports one of the 23 Cranes that died in Texas during the winter of 2008-2009, leading to TAP’s lawsuit/Fish & Wildlife Service

An environmental group focused on the Aransas River has filed suit in federal court arguing that state regulators have been lax in protecting migrating whooping cranes – with major implications for area water rights.

Aransas Project attorney Jim Blackburn was quoted in the Wall Street Journal as saying, “What we are trying to do with the litigation is put the whooping cranes into the water-rights process.”

The project described its efforts in this way:

The Aransas Project filed a federal lawsuit today in the United States District Court for the Southern District of Texas, Corpus Christi Division, against several officials of the Texas Commission on Environmental Quality (TCEQ) in their official capacities for illegal harm and harassment of Whooping Cranes at and adjacent to Aransas National Wildlife Refuge in violation of the Endangered Species Act. The defendants named in the suit in their official capacities are the three TCEQ Commissioners, the agency’s Executive Director, and the TCEQ’s South Texas Watermaster.

The Aransas-Wood Buffalo flock of Whooping Cranes that winters on the Texas coast is the only natural wild flock remaining in the world. The flock has increased from 16 birds in the early 1940s to a high of 270 in the spring of 2008. The 2008-2009 year was the worst in recent history for the Whooping Crane, with a death toll of 57 birds, a staggering loss of 21.4% of the flock—of which 23 deaths, or 8.5% of the flock, occurred in Texas during their winter at Aransas. The lack of freshwater inflows to the bays from the Guadalupe and San Antonio Rivers, especially during times of low flows, resulted in very high salinity levels and depleted food and water sources for the Cranes. Continue Reading »

India may be one of the greatest water hot spots in the next decades, as the site of exploding populations with water supplies that generally have been ample but may become significantly less so. Now a group of writers (edited by Ramaswamy R. Iyer) have put together what looks like the most comprehensive overview of water law and regulation in that country.

Water and the Laws in India is available through amazon.com.

Water law in India is substantially different from that in most western jursdictions. A review of the book says that “Summarising the essential themes of the book, Ramaswamy Iyer makes a few important points. A significant lacuna in our constitutional understanding of water is that it does not recognise water as a basic need or as part of the larger ecology, history, religion or culture.”

Washington-area water projections by the federal Bureau of Reclamation have come under some criticism from several environmental groups.

In its March 10 statement, the Bureau said:

The Bureau of Reclamation has just released the March 2010, forecast for irrigation water supply in the Yakima Basin. The forecast is based on flow data, the snowpack, and precipitation data.
“We are expecting a below normal water supply at this time,” said Chuck Garner, Yakima Project River Operations supervisor. “The March 2010 forecast indicates a full water supply for senior water users but a shortfall for the junior, prorated, users.”

As of March 1, system storage was 49 percent full and 90 percent of average.

“The snowpack is well below average and causes the biggest concern at this time. The Reservoir storage is below average. It would be very difficult for the snowpack and reservoir storage to recover sufficiently to provide a full supply for all users this season,” Garner said.

At this time senior water rights holders are expected to receive their full water supply. Junior users are expected to receive 77 percent of their entitlement from the beginning of prorationing until September 30. Post 1905 water users must cease diverting water as soon as prorationing is implemented. Specific water delivery levels will not be determined until later in the year.

These estimates have been challenged, however. From a statement by the Center for Environmental Law & Policy and Aqua Permanenté: Continue Reading »

Karl Dreher

Karl J. Dreher, the former director of water resources for the state of Idaho, will assume the position of general manager of the Edwards Aquifer Authority effective March 15. The Authority’s board of directors voted to approve an employment agreement with Dreher at their regular meeting on March 9.

Dreher, with more than 30 years experience in water resources management, was selected from more than 150 applicants to succeed Velma R. Danielson as general manager. Most recently, Dreher has served as the managing member of Dreher Consulting, LLC., an independent consulting firm specializing in environmental and water resources management issues. Prior to his service with the State of Idaho, Dreher served as the head of Engineering Services for the Northern Colorado Water Conservancy District.

In other action, the board of directors approved proposed rules that would allow the Authority to establish administrative fees to recoup costs related to certain specific administrative acts of the Authority. The proposed rules will be presented for public comment through a series of hearings to be scheduled in April. [http://www.edwardsaquifer.org/pdfs/News/2010%20News%20Releases/030910%20Dreher%20Hired%20as%20GM.pdf]

The Westlands Water District, which may be more centrally at the heart of California’s current water wars than any other entity, has broken from the Association of California Water Agencies and may be pursuing its own path.

Westlands has been a substantial player in California water policy. Located in the south-central part of the Central Valley, it was (according to its website) “Formed in 1952, Westlands encompasses more than 600,000 acres of farmland in western Fresno and Kings counties. The District serves approximately 600 family-owned farms that average 900 acres in size. Water is delivered to Westlands through the Central Valley Project, a federal water project that stores water in large reservoirs in Northern California for use by cities and farms throughout California. After it is released from CVP reservoirs, the water is pumped from the Sacramento-San Joaquin Delta and delivered 70 miles through the Delta-Mendota Canal to San Luis Reservoir. During the spring and summer, the water is released from San Luis Reservoir and delivered to Westlands farmers through the San Luis Canal and the Coalinga Canal. Once it leaves the federal project canals, water is delivered to farmers through 1,034 miles of underground pipe and more than 3,300 water meters.”

It was a key backer of the water plan legislation passed last year, and commented about it, “The legislation clearly articulates that this State has co-equal goals of restoring the Delta ecosystem and creating a reliable water supply for the State. The legislation represents a sensible balance between efforts to restore the Delta and efforts to supply the water necessary to sustain the economy of the State.”

It has also taken some strong criticism. In his article “Corporate Agribusiness Giant Goes Rogue,” writer Dan Bacher blasts the agency and the overall water policy. His article:

Westlands Water District, the largest water district in the nation, has “gone rogue,” quitting the Association of California Water Agencies (ACWA), according to the Planning and Conservation League’s “PCL Insider” published on March 5.

On February 28, Westlands terminated its membership in the state’s largest coalition of public water purveyors, the Association of California Water Agencies (ACWA), “further isolating itself from mainstream negotiations over water rights in the Sacramento-San Joaquin Delta,” PCL said.

Westlands, the biggest federal water customer in California, is regarded as the “Darth Vader” of California water districts by environmentalists, California Indian Tribes, fishing groups and those seeking to restore collapsing Central Valley salmon and Delta fish populations and the thousands of jobs that they have historically supported. The district over the decades has filed lawsuit after lawsuit to block the restoration of the Trinity, Sacramento and San Joaquin rivers and California Delta.

The District officially described their withdrawal from the association as a “financial decision,” saying the District needs to focus its resources on lawsuits against fish and wildlife protections in the Delta, and can no longer afford the $19,000 annual membership fee.

However, in a February 3rd letter to ACWA’s leadership, Westlands President Jean P. Sagouspe made it clear that ACWA’s politics are the problem, complaining that ACWA’s policies no longer represent Westlands or further its interests. Sagoupse criticized Tim Quinn, ACWA Executive Director, for advocating policies and making statements that conflict with Westlands’ interests. Continue Reading »

An advocacy group seeking a free-running Eel River in northern California has filed a lawsuit at the state’s water rights governing board, hoping to force the Pacific Gas & Electric Company to tear down two dams it said are archaic.

The Epoch Times in California reported that “Peter Moreno of PG&E said they have not yet reviewed Friends of the Eel River’s petition but that the water licensing process is very thorough and all stake holders and interested groups are consulted in the process. Flow adjustments at Potter Valley have been made in the past, he said.” The company did not otherwise make a comprehensive statement on the subject.

The Friends of the Eel River said it:

… brought legal action before the State Water Resources Control Board, in an attempt to stop Pacific Gas and Electric Company, from destroying two northern California rivers essential to the restoration of California’s once-vibrant billion dollar salmon industry.

The FOER legal action challenges the diversion of almost all of the flow of the Eel River to PG&E’s Potter Valley hydroelectric project (PVP), consisting of two dams and a diversion tunnel. During the dry season, almost 98% of the Eel River flows are diverted into the Russian River. “The State Board has an obligation to ensure that PG&E’s use of water is reasonable and does not harm public trust resources in the Eel River,” noted environmental attorney Ellison Folk, with the law firm Shute, Mihaly & Weinberger. PG&E’s Potter Valley Project, however, is damaging the public trust resources by threatening the survival of the remaining populations of the state and federally listed endangered salmon and steelhead, in exchange for a negligible amount of energy it produces. Continue Reading »

In a release, General Metals Corporation reports that the State of Nevada, Division of Water Resources has formally awarded General Metals water rights which will be immediately available to the Company upon completion of a well. The permit is subject to certain requirements, the first of which is that General Metals complete the production well and provide proof of the installation to NDWR on or before August 5, 2011.

The water right granted is for 1.34 cubic feet per second (cfs) or approximately 600 gallons per minute (gpm). This amount of water is sufficient to provide makeup water, dust control and other necessary uses for the Company’s 2,400 gallon per minute process facility as planned by Dyer Engineering of Reno, Nevada.

Securing adequate water rights is a crucial step in the path to production for the Independence Property. In Nevada, a very arid state where most water basins are either fully or over allocated, it is critical that mines secure adequate sources of water. The Company has also applied for a separate additional permit to divert up to an additional 900 gpm. This application is pending with NDWR.

Further details regarding the Independence are available on the Company’s website www.gnmtlive.com.

Once again, a group of senior agriculture-based water users is filing suit against the state of Colorado, arguing that it has unfairly favored oil and gas companies which extract water in their mining processes.

A previous lawsuit that went to the state supreme court resulted in a decision that the extractors had to obtain water rights just as agricultural users did, and live by the same rules.

The new case, pursued by the same advocates for the Archuleta County Vance and the Fitzgerald families that fought the first time around in Vance et al v. Wolfe, decided in April 2009, said the state rules to implement the decision remain based too much on oil industry data and maps, and remain unfair. In the Vance decision, the court held “In sum, while the production of oil and gas is subject to extensive regulation by COGCC, it is also subject to the 1969 Act and the Ground Water Act. And, as noted above, we find that the extraction of water to facilitate CBM production is a beneficial use under those provisions.”

State officials did not have an immediate comment.

[see Durango (CO) Herald, March 3]

Yet another lawsuit is putting stresses on North Carolina’s riparian water system: A string of seven small hydropower plants on the Deep River challenging a large hydropower impoundment by the Piedmont Triad Regional Water Authority.

The authority says it “has begun construction on Randleman Dam and Regional Reservoir in Randolph and Guilford Counties, North Carolina. The purpose of this project is to develop a safe and dependable water supply for North Carolina’s Piedmont Triad region that will satisfy the projected water demand for a period of 50 years. The project includes the establishment of a 3,000 +/- acres reservoir and the preservation of a 3,000 +/- acres buffer zone consisting of a strip approximately 200 feet wide around the reservoir.”

But the other hydropower users say that the state’s riparian law doesn’t allow for water to be bottled up in that fashion, and that other water users should be given a comparable crack at its use.

[see the Greensboro (NC) News-Record, March 1]