Ridenbaugh Press/Water Rights

The city of Enid, Oklahoma, is on the receiving end of a lawsuit fled by two residents who say the city has been been illegally pumping water that the residents have right to.

Elizabeth Rasar and Jean Rasar are seeking $75,000 in damages, saying that Enid took upwards of 1.4 billion gallons of water, since 1985, from a well located on their land.

The suit is not new – it was filed last fall – but it scheduled for a settlement conference in September.

The U.S. Supreme Court action has reaffirmed the State of Oklahoma’s ability to defend its water resources from out-of-state influences.

On Monday, the U.S. Supreme Court rejected the city of Hugo’s appeal of last September’s Tenth Circuit Court of Appeals ruling that denied the city’s attempt to sell 200,000 acre-feet of southeast Oklahoma water (65 billion gallons) to the City of Irving, Texas. In its original ruling, the federal Court of Appeals cited Hugo’s lack of standing to file a lawsuit against its parent state. The lawsuit—City of Hugo v. Nichols et al.—was filed against the Oklahoma Water Resources Board in 2008 in an attempt to secure water from southern Oklahoma for use by Irving, a large North Texas municipality.

“This important decision by the highest court in the land demonstrates the continued dedication and resourcefulness of Oklahoma’s team of water management and legal officials as we work diligently to fend off repeated attempts to undermine our ability to manage use of water within the state for the good of all Oklahomans,” says J.D. Strong, Executive Director of the OWRB.

Water in Oklahoma is protected from interstate transfer and sale through legislative and interstate compact restrictions and requirements. The State Legislature must also approve such transactions.

The Idaho Supreme Court on January 5 affirmed the judgment of the district court in an appeal from the decision of the district court in the Snake River Basin Adjudication on water rights for the city of Pocatello.

The Supreme Court held (a) that Pocatello cannot use its wells as alternate points of diversion for its surface water rights; (b) that it can use its interconnected wells as alternate points of diversion for all of the associated water rights on
the condition that doing so will not change the priority date and quantity of water that can be pumped from each well; (c) that one groundwater right was properly classified as for an
irrigation purpose; and (d) that Pocatello failed to establish earlier priority dates for two of its groundwater rights.

The SRBA case came out of filings by the city of Pocatello.

The Supreme Court noted in background, “In April 1990, the City of Pocatello filed its water right claims, and it later filed amended claims. Pursuant to its statutory duties, IDWR filed Director’s Reports with respect to Pocatello’s claims. The disputed matters were tried to a hearing officer, and Pocatello then challenged several of the hearing officer’s findings of fact and conclusions of law in the district court. The court entered a judgment affirming the hearing officer’s recommendations, and Pocatello filed a motion to correct or amend the judgment. After that motion was denied, it timely appealed.

“Water for Pocatello’s in-town service area is pumped into an interconnected distribution system from twenty-two wells supplied by twenty-one groundwater rights. The wells were developed at different times and are located throughout the in-town service area. Because the interconnected water distribution system was in operation prior to November 19, 1987, Pocatello contended, pursuant to Idaho Code section 42-1425, that each of these wells had become an alternate point of diversion for each of the twenty-one water rights, which would permit it to withdraw water under its most senior groundwater rights from any well. IDWR recommended that each well in the system could serve as an alternate point of diversion for each of the twenty-one water rights if the water rights were subject to a condition stating, “To the extent necessary for administration between points of diversion for ground water, and between points of diversion for ground water and hydraulically connected surface sources, ground water was first diverted under this right from Pocatello well [description] in the amount of __ cfs.” IDWR did not recommend that condition for three of Pocatello’s groundwater rights that supplied water to the in-town system (29-2274, 29-2338, and 29-7375) because those rights were subject to administrative transfer No. 5452, which did not include the condition and occurred after 1987. Pocatello also had a separate water delivery system to provide water to its airport.”

Those claims came with disputes. The Supreme Court noted that “Pocatello contended that each of the wells in its two interconnected water distribution systems had become an alternate point of diversion for all water rights associated with that system.” The SRBA Court said that had to be limited – it attached a condition to that effect.

The Supreme Court agreed with the lower court: “If Pocatello could have each well be an alternate point of diversion for each water right without the attached condition, as stated by IDWR in its supplemental Director’s Report, “the City would be allowed to withdraw water under its most senior priority water right from any well location.” Recognizing the transfers without the attached condition would injure junior water rights holders by diminishing their priorities. The district court did not err in upholding the attached condition.”

Also, “On appeal, Pocatello argues that IDWR committed an error in law by issuing the license for the use requested by the city. Idaho Code section 42-108 states, “Any person desiring to make such change of point of diversion, place of use, period of use, or nature of use of water shall make application for change with the department of water resources under the provisions of section 42-222, Idaho Code.” Section 17(b)(3) of Administrative Order No. 1 adopted by the SRBA court states, “Claimants seeking a change in their claimed water right under I.C. § 42-222 shall contact IDWR.” That is what Pocatello must do to change the purpose of water right 29-7770. The district court did not err in so holding.”

The fast-growing city of McAllen, Texas, is about to take over the regional Hidalgo County Water Improvement District, and its provisions of water and water rights in the area. That is partly courtesy of state Senate Bill 978, which eliminates the district and sends its assets to McAllen.

The Hildalgo district isn’t pleased with the idea.

The district controls 9,852.60 acre feet of agricultural water rights, and in mid-May its board declared 1,300 of that amount “surplus,” available for sale. It said it would begin accepting bids immediately and open them on June 15. The estimate was that it could generate $3 million per acre foot.

That in turn drew a sharp legal response from McAllen. It went to court, and on May 27 obtained a temporary restraining order against the sale. The order said that the facts “show that a significant and immediate harm would result to the plaintiff and the water users of Hidalgo County if the status quo were permitted to change pending a further hearing.”

A hearing was set for June 10.

The council of the city of Chubbuck, on the north side of Pocatello, on November 23 passed a resolution allowing city government to buy additional water rights.

The Pocatello Idaho State Journal reported that, “The resolution will allow the city to enter into a loan agreement or issue revenue bonds up to $2 million for the acquisition should the district court approve the petition.”

The request probably will make its way through the Snake River Basin Adjudication Court at Twin Falls.

The water battle between the city of Apple Valley and the High Desert Community Foundation has been resolved: The foundation will get $1.07 million for its rights which had been sought by the city.

The battle last almost exactly two years, from the point in November 2008 that the city took over a golf club and, some thought, its water rights – the purchase was made partly with the idea that the city would use the course’s water. But the foundation said those rights had been clearly transferred to it, and it denied permission to pump water. The case went to court.

The water’s value had been estimated at about $3.8 million.

In early November, representatives of the two sides met and agreed to the purchase price.

The city of Hailey, a few miles from Sun Valley, appears about to head to court to defend a water right

The city has long claimed rights amount to 3.52 cubic feet per second originating in Indian Creek springs, arising from a canyon near town; these rights are dated 1880. Another, 5 fs, right has a 1980 date.

The Indian Creek Homeowners Association does not dispute all of the Hailey claims, but it does dispute some of them. The city has been defending them vigorously, partly because of the rights explicitly noted but also because of groundwater access in the immediate area. Under conjunction management – handling ground and surface water together – rules, the surface water rights may affect groundwater rights. Both could be crucial to the fast-growing city.

The Idaho Mountain Express noted that ” Last year, the city took a 3 cfs portion of an 1883 water right in from Old Cutters developer John Campbell, who was several months behind in annexation fee payments.” The value placed on it was $930,000.

[See also the Idaho Mountain Express, Ketchum, July 21.]

Four northwest New Mexico cities are suing the state engineer’s office, saying the should allow the cities to use much more water than it allowed from the Animas-La Plata project.

The recently-completed Animas-LaPlata project was designed to supply water to a number of users in the region. Its operator, the Bureau of Reclamation, said that “The project is being built to fulfill the water rights settlement of the two Indian tribes that live in Colorado – the Ute Mountain Ute Tribe and the Southern Ute Indian Tribe. These tribes have water rights that date back to 1868. Fulfillment of the settlement obligations, one of which is completing the Animas-La Plata Project, will provide non-Indian water users in Southwest Colorado certainty to the continued, historical use of water. Storage is an important aspect of water supply in the semi-arid western United States, where there is usually not a reliable, regular flow of sufficient water in streams and rivers to meet water needs year round. Lastly, the project will provide nearly 33% of the storage in Lake Nighthorse for use by non-Indian entities in the Four Corners region.”

The cities of Farmington, Aztec and Bloomfield are among them, but they have been receiving much less water than they originally had expected. The project as outlined by Congress in its original 1968 authorization called for much larger water levels, but also a much larger project than the one completed in the last decade.

The suit against the engineer’s office may eventually go to federal court.

[see the Farmington (NM) Daily Times, July 21.]

The Bureau of Reclamation and city of Gallup, N.M. are continuing negotiations on a proposed repayment contract for the Navajo-Gallup Water Supply Project. The contract will provide the terms and conditions by which the city will repay its portion of project construction and operation, maintenance, and replacement costs.

The project, authorized by the Northwest New Mexico Rural Projects Act of 2009, will convey approximately 37,376 acre-feet of water annually from the San Juan River to the eastern section of the Navajo Nation, southwestern portion of the Jicarilla Apache Nation, and the city of Gallup via about 260 miles of pipeline, 24 pumping plants, and two water treatment plants.

This will be the third negotiation meeting; the first two were held in April and June in Gallup. The meeting is scheduled for July 13, 2010, at 10:30 a.m. at the city of Gallup’s Northside Fire Station #2 at 911 W. Lincoln Avenue in Gallup, New Mexico. All negotiations are open to the public as observers and a 30-minute public question/comment period will be provided following the negotiation session. The proposed contract and other pertinent documents will be available at the negotiation meeting, or can be obtained by contacting Pat Page of the Bureau of Reclamation, 835 East Second Avenue, Suite 300, Durango, Colorado, 81301; telephone (970) 385-6560 or e-mail at ppage@usbr.gov. The documents are also available at www.usbr.gov/uc/wcao under “Current Focus”.

The small city of Mount Shasta is aiming to set some water law precedent with an initiative intended to block cloud seeding as a way of producing more rain water.

The effort is in response to a proposal by the electric utility PG&E, which supplies much of the electricity for California, to start cloud seeding in the Shasta reservoir areas.

One local advocate said at a May 24 meeting that “this ordinance is the embryo of change for our state.”

But City Attorney John Kenney said in a May 21 memo that “the initiative power cannot be exercised to adopt rules that are beyond the power of the City Council to adopt. This initiative, overly ambitious in scope, attempts to regulate matters beyond the boundaries of the City and beyond the legislative authority of the City to enact.”

It follows up on a proposal from Nestle to extra water for bottling from the area.

The ordinance’s purpose statement says: Continue Reading »