Archive for the 'municipal water' Category

Aug 29 2012

OK: City sued over water pumping

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.

No responses yet

Sep 08 2011

WA: Airway Heights will quit pumping

The Washington State Department of Ecology and the city of Airway Heights on September 8 signed a legal agreement to shut down the Parkwest well, just south of Airway Heights, because pumping from that well has caused major water supply problems in the area. The Airway Heights City Council approved the agreement on September 7.

Pumping from the Parkwest well has lowered the water table so that some nearby residents have not been able to get the water they are entitled to.

The well is located near the intersection of Craig Road and State Route 902. Airway Heights has been using the well under a temporary permit from Ecology for eight years to supply water to industries in Airway Heights. The temporary permit specified, “If senior water right holders are adversely affected, the pumping from this point of withdrawal may be reduced or terminated…”

The new agreement, called an “agreed order,” resulted from extensive negotiations between Ecology and Airway Heights city officials to bring resolution to the water-pumping issue. The cities of Airway Heights, Medical Lake, and Four Lakes all draw water from the same West Plains aquifer—an aquifer that has been dropping 10 feet per year for the past several years. Wells in the area have been going dry, and well owners have had to drill deeper and deeper at great expense.

Ecology is required by state law to enforce water rights. Those who received water rights first—senior water right holders—have a higher priority for using water than those who received water rights later (junior water right holders).

If a senior water rights holder is not getting enough water, Ecology must require the junior water rights holders to discontinue pumping. The Parkwest well is the most junior municipal water right in the West Plains.

“The process to stop pumping from a particular well is governed by specific legal steps and procedures,” said Keith Stoffel, unit manager for Ecology’s Water Resources Program in Spokane. “This agreed order allows for a phase-down on pumping so that alternatives can be developed.”

Stoffel said the agreement does not require full closure of the Parkwest well until mid-2013, with prescribed decreases in pumping required each year until that time. The delay gives Airway Heights enough time to explore and implement available solutions to meet their water needs.

“By implementing water conservation measures, the municipalities with the junior water rights are using much less than their allocated quantities, and this is commendable. It helps, but it doesn’t solve the problem,” said Stoffel.

Airway Heights worked cooperatively with some residents who complained of dry wells by helping them to deepen wells, but that too was only a short-term fix.

With this agreement, the Parkwest well still will be available in case of emergencies. The city of Airway Heights will not only stop pumping from the well by July of 2013, but also will install measuring devices and report weekly water use and other data to Ecology for three years. Regular pumping from the well will stop “until such time in the future that the aquifer has recovered and stabilized.”

Ecology also may need to regulate other wells with junior water rights in the West Plains in order to get groundwater pumping to a safe, sustaining yield, thus protecting farms, Fairchild Air Force Base, and other West Plains communities.

No responses yet

Aug 20 2011

AZ: State sets water municipality fees

During the 2011 regular legislative session, the legislature passed and the Governor signed into law S.B. 1624, the Environment Budget Reconciliation Bill. Section 2 of S.B. 1624 amended the Arizona Revised Statutes by adding section 45-118. A.R.S. § 45-118 authorizes the Department of Water Resources to assess and collect a fee from each municipality in the state (“municipality fees”). The fees must be assessed proportionally based on the population of each municipality, and all fees collected by the Department must be deposited in the water resources fund established by A.R.S. § 45-117.

Section 7(B) of S.B. 1624 provides that it is the intent of the legislature that the revenue generated by the municipality fees shall not exceed $7 million. Section 7(c) of the bill provides that the Department is exempt from the rule making requirements of title 41, chapter 6, Arizona Revised Statutes, for the purpose of establishing the municipality fees until July 1, 2012.

On August 10, the Department filed with the Office of the Secretary of State a Notice of Exempt Rulemaking giving notice that it has adopted a rule establishing the municipality fees for fiscal year 2011-2012. The Notice of Exempt Rulemaking includes the text of the rule. Click here to view the Notice of Exempt Rulemaking.

The rule requires the Director to calculate a municipality’s fee as follows:

1. Determine the ratio expressed as a percentage that the municipality’s population bears to the total population of all municipalities in the state by dividing the municipality’s population by the total population of all municipalities in the state.

2. Subtract the amount of unobligated monies in the water resources fund at the beginning of the fiscal year from $7 million (this amount was $743,312.46 for fiscal year 2011-2012).

3. Multiply the percentage calculated in paragraph 1 by the result in paragraph 2.

On August 15, 2011, the Department mailed each municipality in the state a notice of its municipality fee for fiscal year 2011-2012 as calculated in the manner described above. A municipality may seek review of the calculation of its fee by filing a written request for review with the Director within 15 calendar days after receiving written notice of the fee. Review is limited to whether the Director’s calculation of the fee contains a mathematical, typographical or clerical error. A municipality must pay at least half of its fee by October 17, 2011 and any remaining portion of the fee by January 16, 2012. Click here to view the amount that each municipality was billed for fiscal year 2011-2012, including the population numbers used to calculate the fees.

The Department will soon initiate a formal rulemaking proceeding to adopt a permanent rule establishing the municipality fees for fiscal year 2012-2013 and thereafter.

No responses yet

May 07 2011

NV: Court upholds Fernley rights

Based on a ruling by the Nevada Supreme Court, more water is now available for use in Fernley for new development.

The Court recently ruled in favor of Nevada Land and Resource Company, LLC, “NLRC,” in an appeal brought by the Pyramid Lake Paiute Tribe. The Tribe challenged NLRC’s applications to use groundwater rights in Dodge Flat Basin. The City of Fernley negotiated with NLRC so that the water could be used in Fernley and supported NLRC’s water rights against the Tribe’s challenge.

The Court upheld a decision by the Nevada State Engineer that makes about 1,400 acre feet of water available the Wadsworth area for use in Fernley. Prior to the Court’s decision, the Pyramid Lake Paiute Tribe had been pumping groundwater from the Dodge Flat Basin without a permit. In addition to approving the NLRC’s change applications, the Court also ruled that the Pyramid Lake Paiute Tribe does not have a right to continued unpermitted use of groundwater from the basin.

No responses yet

Apr 07 2011

WA: Bridgeport water secured

An agreement signed between the Washington Department of Ecology and the city of Bridgeport sets aside a longtime water dispute and provides the city access to a reliable supply of drinking water now and into the future.

For nearly two decades, the city has challenged Ecology’s interpretation of how much water it may draw on its existing water rights, which date to the 1950s. To avoid the time and cost of further litigation and to provide greater certainty to the city and its residents, the city and Ecology will instead tap into new water reserves being developed by Ecology’s Office of Columbia River.

Water now stored in Sullivan Lake and Lake Roosevelt on the Columbia River will soon be available for new municipal uses through agreements with Pend Oreille County’s Public Utility District No. 1 and with the U.S. Bureau of Reclamation.

“Interpreting 50-year-old documents is difficult, and so is balancing the needs of water throughout the region,” said Tom Tebb, central regional director for Ecology. “Having access to new water in Eastern Washington is helping us resolve old disputes and meet the modern-day needs of communities up and down the Columbia River.”

Steve Jenkins, former Bridgeport mayor and current Douglas County commissioner, said: “This settlement will immediately provide water for future development with the city and stabilize the local economy on the north end of Douglas County.”

In 2006, the Washington Legislature directed Ecology to aggressively pursue development of new water on the Columbia River for both instream and out-of-stream benefits. One-third of the water developed supports streamflows, fish and habitat. Two-thirds is allocated for individuals, cities, farms and industry. Both the Sullivan Lake and Lake Roosevelt projects have significant fish benefits in addition to providing water to cities like Bridgeport.

In May 2010, the city asked Douglas County Superior Court to confirm its position that its water rights total 1,282 acre-feet per year. Ecology interprets the city’s water rights as creating a total combined right to 500 acre-feet per year, which may be withdrawn from three wells.

In an effort to solve the city’s current water shortage and meet its water needs for the next 20 years, Ecology and the city will collaborate to finalize an existing application for new water rights. If Ecology processes the city’s application by Dec. 31, 2014, then the city will drop its lawsuit. If a decision isn’t made by then, the city may resume its lawsuit. In the meantime, the city will be allowed to use up to 1,090 acre-feet of water per year.

No responses yet

Feb 17 2011

KS: Emporia applies for more rights

The city of Emporia, Kansas is looking to add water rights, saying that it is beginning to be boxed in by the limited amount of water available to it now.

The city would buy additional rights, though from exactly where – likely on the Neosho River – is not yet clear. The application went to the Kansas Division of Water Resources.

Consultant reports have indicated that more water will be needed by the city in the future. And city officials point out that when new businesses inquire about the city, they often ask about the availability of water.

No responses yet

Jan 06 2011

UT: Spanish Fork on the river

Published by under municipal water,Utah

Buying land in a river bottom might seem to be like buying acreage in a swamp – not a terribly useful investment. Or might it be?

Spanish Fork, Utah, is betting that 43 acres on the bottom of the Spanish Fork River, at a cost of just over $1 million, can be a useful investment. The land does, after all, come with water rights attached.

The river bottom is dry much of the time, and the city is considering using some of it for a park. But the water rights might also come into play.

No responses yet

Dec 03 2010

NW: Clovis dispute settled with combination

A combination of water rights may have resolved a running dispute involving the city of Clovis and critics, primarily farmers concerned about their water rights if an expansion of city water supplies was approved.

The expansion was sought by New Mexico American Water, a city water supplier which wanted to drill and extract more water than the city has been using at its peak.

The two sides evidently reached an agreement involving merging some water rights, allowing each to use needed water under most conditions.

No responses yet

Oct 29 2010

WA: Municipal rights law upheld

The Washington state Supreme Court on October 28 upheld the constitutionality of Washington’s Municipal Water Law, removing uncertainty over water right certificates issued as far back as the 1950s.

In a 9-0 decision in Lummi Indian Nation v. State, et al , the Supreme Court found that the MWL does not violate the separation of powers clause of the U.S. or state constitutions or the right to due process. Several Indian tribes, environmental groups and citizens sued Washington state in 2006 contending that several sections of the MWL are unconstitutional.

Under state water law, the Washington Department of Ecology issues a certificate to use the water of the state when the water is appropriated and put to a beneficial use like a household water supply or irrigation. However, before 1998, municipalities, public utility districts and other water system providers were treated differently when the state issued water right certificates. The state issued water right permits and certificates to those providers based on needs such as accommodating future population growth, and having the “pumps and pipes” capacity to put the water to use.

The MWL was enacted by the Washington’s Legislature in 2003 to provide clarity on the nature of the pre-1998 water certificates and flexibility to municipal water suppliers in exercising their water rights. At the same time, the MWL requires those suppliers to engage in water conservation measures.

Under the law, utilities must use water efficiently. The state Department of Health includes water use efficiency requirements in its water system planning process. Utilities must demonstrate they have the water rights and the capacity to meet the needs of existing and future customers.

Not all of the opinions were positive. The Center on Environmental Law and Policy, which was on the losing side of the case, said:

Environmental plaintiffs expressed disappointment in the October 28 Washington Supreme Court decision upholding the 2003 law that purports to validate paper water rights held by public water suppliers around Washington State. The Supreme Court ruling rejects Plaintiffs’ argument that the law interferes with separation of powers between the Legislature and the Courts.

The Court’s ruling leaves the door open for case-by-case challenges to the harm caused by municipal water pumping on junior water users.

Paper water rights held by public water supplier represents water that is now flowing in rivers and aquifers. If public water purveyors are allowed to expand their rights, it will come at the expense of public values, including aquatic habitat, recreation, and water quality. Pumping will also harm junior water users.

“We have arrived at the end of the water frontier,” said Rachael Paschal Osborn, executive director of the Center for Environmental Law & Policy, one of several plaintiffs in the lawsuit. “When water purveyors pump their paper water rights, they will be taking from someone else. Regrettably, the Supreme Court has endorsed water chaos.”

The Court’s decision rejects a constitutional challenge, but acknowledges that municipal water users must demonstrate actual beneficial use of their water rights, and that parties harmed by expanded municipal pumping may bring individual cases to seek redress. The challenge to Washington State University’s “golf course” water rights is likely to be the first such lawsuit challenging specific application of the municipal water law.

Excerpts from the opinion:

“In 1998, this court held that under then-existing law, new private water rights did not fully vest until the water was put to a beneficial use, and not merely when the “pumps and pipes” capacity to use the water was built. Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 586, 957 P.2d 1241 (1998). We cautioned then that we were not considering municipal water rights, which often receive separate treatment in water law. Id. at 594. In response to our opinion, the legislature amended the municipal water law, Second Engrossed Second Substitute H.B. 1338, 58th Leg., Reg. Sess. (Wash. 2003) (SESSHB 1338), to, among other things, explicitly define certain nongovernmental water suppliers as municipal and to make that definition retroactive. We are now asked whether these amendments violate separation of powers or facially violate due process. We conclude they do not. We reverse in part and affirm in part. …

“While the details have changed over the years, generally, our regulatory scheme has sought to balance vigorous beneficial use of the State’s waters without impairing existing uses. To that end, Washington has a multistep procedure before new water rights can be acquired. While the details will vary depending on whether the applicant seeks to appropriate surface or ground water, among other things, the would-be user first submits an application to the Department of Ecology. RCW 90.03.250; see also ch. 90.44 RCW (ground water). The department may give the applicant a temporary permit to use water while the application is being evaluated.

“Second, once the application is complete, the department directs the applicant to publish notice in a paper of general circulation. RCW 90.03.280. Meanwhile, the department determines “what water, if any, is available . . . and find[s] and determine[s] to what beneficial use or uses it can be applied.” RCW 90.03.290(1). Fourth, if the department is satisfied that water is available and the proposed use is a beneficial use, it issues a permit specifying the amounts of water that can be taken and the beneficial uses to which that water may be applied to. RCW 90.03.290(3). A water right permit represents only an inchoate right, which does not become choate until the water right is perfected. …

“We hold that these amendments do not violate separation of powers. While nothing in this opinion should be taken to forestall a proper “as applied” challenge, the challengers have not shown that the risk that some junior rights holders’ enjoyment of their rights will be impaired by operation of these amendments facially violates due process.”

No responses yet

Sep 28 2010

ID: Salmon scrambles for winter water

Published by under Idaho,municipal water

The city of Salmon, which has had and used water rights for more than a century, is set to face off with challengers over rights to use much of the city’s past winter water supply.

At the September 21 Snake River Basin Adjudication status conference, the city – through attorney Jo Beeman – asked to file a late notice of claim (75-02167) involving three creeks and a 1905 priority date. Other claims in the area are set for trial on December 28.
Judge Eric Wildman granted the request, noting that fees were paid and that he found good cause for untimeliness and a “meritorious defense for the claim” – but also noting prospective prejudice to other parties. He said he would ask for an expedited director’s report and would set an objection and response period.

No one objected to the filing but attorney Jerry Rigby, representing the Arrowhead Water District, said he would contest the terms of the claim itself, and hoped a collection of area water issues could be wrapped into a single legal action.

The action grew out of Salmon water rights originally recommended by the Department of Water Resources in January 2007, and then amended this year.

“That report removed any wintertime diversions for the city for its municipal system,” Beeman told the court. “The license was discovered by the engineering firm that I recommended the city hire when it began negotiations with the water users who had objected to the city’s water rights. With the filing of the amended director’s report [removing winter diversion rights], we went ahead to file this claim on behalf of the city.”

She later told the Digest that “The City of Salmon has some of the most senior rights in the Jesse Creek drainage which were originally decreed as irrigation rights, but then used for municipal purposes after the rights were purchased by the City. Year round (including winter) diversions (4.26 cfs) were included in the 2007 recommendations for three of the City’s water rights. The June 2010 amended recommendations have no winter diversions.”

Beeman said the city water system is set up around diversions from three creeks, Chipps, Pollarde Canyon and Jesse. Initial diversions come from Jesse, then move on to the other two if that is not sufficient.

She said that “The City of Salmon does have a very junior priority 1990 license for year round use from Jesse Creek which includes 5 cfs for winter use. The 1990 license is post-1987 so is not part of the SRBA. The City did file a late SRBA claim for a 1905 priority year round municipal use.”

For various reasons, the SRBA Court is continuing to receive a number of late claims, which it typically addresses at its monthly status conference meetings.

No responses yet

Next »