Ridenbaugh Press/Water Rights

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]

The February Nevada Supreme Court ruling limiting options for southern Nevada – Clark County – area water developers has so far not been taken up in a serious way by the Nevada Legislature in its current session. But lawmakers are getting warnings that they should.

Jon Ralston, who writes for the Las Vegas Sun, uncovered a memo from a San Francisco consultant warning of specific economic problems if the court decision isn’t responded to by the legislature.

Peter Miller of Public Financial Management, Inc., wrote legislators that “If the Southern Nevada Water Authority’s water resource plan, including the water importation component of that plan, is called into question as a result of the Supreme Court decision, it is expected that credit markets will view this as a noteworthy and negative development for the future of southern Nevada. Clearly, the reliable delivery of water into the future will be a determining factor for future investment in the community and, consequently, the economic growth and development of the area.”

Higher borrowing costs would be among the expected results, he suggested.

The Nevada Supreme Court decision in Great Basin Water Network v. Tracy Taylor could upend enough of the state’s water system to lead to “chaos” in the field, a state water official said in early February.

The decision was an appeal from district court reviewing what the court said was a narrow issue: “Whether the State Engineer violated his statutory duty under NRS 533.370(2) by failing to rule on Southern Nevada Water Authority’s 1989 water appropriation applications within one year.” State law included that requirement at the time, waivable only if the parties agreed to an extension, which none did in the years following. The law was changed in 2003 “to permit the State Engineer to postpone action on pending applications made for municipal use. The district court determined that the amendment applied to SNWA’s 1989 applications”, because it found those applications were still “pending” – but the Supreme Court reversed that determination.

A Texas attorney is drawing attention to a recent state supreme court case that could have an effort on a wide range of water rights issues.

In part, the case reflects the strains in a state torn mostly by an appropriation water rights system but with some riparian elements.

The case, Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel, originates from Atascosa County. The Texas Supreme Court describes the case as concerning “(1) whether landowners within the Edwards Aquifer boundaries on the groundwater under their property and (2) whether water from an artesian well that flowed into a reservoir constituted water controlled by state regulations or by the Edwrds Aquifer Authority.”

The court went on, “This appeal arises from Day and McDaniel’s challenge to the aquifer authority’s limited irrigation permit to pump water from a reservoir on their property. In an appeal from the aquifer authority’s permit ruling, the trial court sided with Day and McDaniel, deciding that the reservoir water was aquifer water water subject to the authority’s control. The court of appeals reversed, holding in part that the landowners had a vested right to aquifer water beneath their land but that groundwater flowing into the reservoir was ’state water’ subject to state regulation.”

In an opinion article, attorney Cynthia Cox Payne said that “On this significant issue of whether property owners have a vested interest in the groundwater beneath the land they own, in addition to EAA and Day and the State of Texas – which was added as a defendant by EAA – 15 different organizations weighed in on this issue in the form of amicus briefs. Some of the amicus briefs were filed by the Texas and Southwestern Cattle Raisers Association, the Texas Farm Bureau, the Texas Comptroller of Public Accounts, the Texas Wildlife Association, the Harris-Galveston Subsidence District and Canadian River Municipal Water Authority, to name a few.”

She also noted some of the far-ranging questions asked by the justices, including:

• “A landowner has some rights (to groundwater), what are they?”
• “Why should we treat water differently than oil and gas?”

• “Texas Water Code §36.002 states: ‘The ownership and rights of the owners of the land and their lessees and assigns in groundwater are hereby recognized …’ So, what ownership is the statute addressing?”

• “Why distinguish groundwater in place from zoning?”

• “If regulation of groundwater is okay, then, what formula should the state use (to set limits)?”

• “If the case went back down, what would the takings claim look like?”

• “If you (litigant Day) prevail, does that open the floodgate to litigation?”