Archive for January, 2009

Jan 29 2009

OR: State court will consider Klamath

Water rights in the bitterly-fought Klamath River basin will go to the Oregon Supreme Court for partial settlement, the high court said on January 29.

The case does not arrive in the usual way as an appeal within the state’s own court system, however. It is a referral from the 9th Circuit Court of Appeals, which had been considering water right claims filed under federal law. Federal agencies said that all the water available under those provisions were appropriated in 1905. The federal court asked the state court to determine if more rights, and if so what rights those might be, were available under state law.

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Jan 28 2009

MT: $20K consult draws concern

The city council at Whitefish is holding back on a prospective $20,000 consulting contract to determine the legal standing of water right claims by the city.

City officials said a review of the claims ought to be undertaken soon. The issue was prompted by a study reviewing a hydroelectric power plant it operates, but also by impending regional water adjudications that could change the city’s water picture.

Still, the cost was worrisome to some observers.

The Whitefish Pilot on January 28 reported that “George Culpepper, of the Northwest Montana Association of Realtors, told the council his organization has spent $100,000 studying claims by downstream water users that threaten to preempt water rights claims in the Flathead Valley. The city was welcome to use information NMAR has gathered on the issue, he said. Councilor Turner Askew, a former NMAR board member, said he was concerned about the city spending $20,000 and then not finding any new relevant information.”

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Jan 26 2009

AZ: Kyl on water rights

Arizona Senator Jon Kyl has posted an analysis of the new White Mountain Apache Tribe Water Rights Quantification Act, suggesting it could have long-range benefits.

It now appears as if parties in Arizona have come together to settle yet another claim. I have introduced legislation that would resolve major water claims in the state and provide a reliable source of drinking water to the White Mountain Apache Tribe.

The White Mountain Apache Tribe Water Rights Quantification Act would authorize and confirm the tribe’s water settlement and authorize funding for a key drinking water project on the tribe’s reservation in northeastern Arizona called the Miner Flat Project.

Under the settlement, the tribe’s water claims are resolved by allocating it a total annual water right of 52,000 acre-feet, per year, through a combination of both surface water and Central Arizona Project (CAP) water.

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Jan 25 2009

NC: Reclaiming Alcoa rights

North Carolina activists are moving to try to take back water rights long held by the aluminum production giant Alcoa – rights long used for job-intensive aluminum production but now sold to the highest bidder for hydropower and other uses.

The Charlotte Observer noted, “Water-rights advocates insist the hydropower, under company control since 1915, should benefit the people of North Carolina. In a state where drought and growth no longer make water a disposable resource, the populist stand has drawn some political support.”

The rights are located on the Yadkin River, and run for more than 30 miles.

Alcoa’s rights, up for review recently, have been held in abeyance while political action swirls around it. Governor Bev Perdue’s office said it endorses the delay in action, “while community concerns are evaluated and the state considers the most appropriate use of this public resource.” [see Charlotte [NC] Observer, January 25]

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Jan 25 2009

CO: Pitkin plans water trust

Published by under Colorado

Pitkin County may be breaking new ground with its new efforts to keep more water in the Roaring Fork River, blocking diversion efforts by placing many of the water rights in the hands of a revocable trust.

The groundwork for the effort was laid in November, when voters gave thumbs up to a proposed “healthy rivers and stream fund” to be funded by 0.1% sales tax estimated to raise $1 million a year.

The county this week said the funds would be used for “secure, create, and augment minimum stream flows.” That would be accomplished by the Colorado Water Conservation Board, which would effectively hold the rights. About 30 cubic feet of water per second could be involved. [see the Aspen Daily News, January 25]

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Jan 20 2009

OK: Tulsa concerning on preserving rights

Officials at the city of Tulsa are raising alarms about the possibility of losing long-held water rights at Lake Hudson in Mayes County, because the municipality hasn’t exercised those rights in years.

The rights at Lake Hudson grew out of a contract signed in 1986 with the grand River Dam Authority. The contract covered a period of 30 years, and the city also started efforts toward developing pipelines for the water and a reservoir for storage. A few years later, however, new population projections suggested the water wasn’t needed, and it hasn’t been pursued since.

City officials now, however, suggest that the rights might be lost for the future – at some point when they’re still needed – if the city doesn’t act on them. Doing that, however, carries its own costs: Possibly hundreds of millions of dollars to carry through on the project.

[See the Oklahoma City Oklahoman, January 20]

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Jan 19 2009

VT: Rights could block hydro plant

Published by under hydropower,Vermont

A proposed hydropower development along Otter Creek in Middlebury, Vermont, has run up against questions being asked by the key owners of water rights along that part of the stream: The owner being the city of Middlebury.

The small-hydro plan had been progressing through regulatory channels and made early steps through the process at the Federal Energy Regulatory Commission.

But the small city of Middlebury, which has the water rights in the area and also some of the land where the hydro plant would be located, has questions about the project, and its’ approval is not a given. Selectmen for the town said that in general, they look favorably on the hydro project, but need to examine the details. [see the Addison County [VT] Independent, January 19]

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Jan 17 2009

CO: Glenwood Springs holds off

The Glenwood Springs City Council said this week it will put off for a while a decision about whether to pursue water rights which would be used for a new whitewater recreation park in the area. The key reason for holding off: The high prospective cost involved, which could amount to a half-million dollars.

A central aspect of the decision relates to the city budget process. The necessary money isn’t allotted in the current city budget.

The park has been in operation since this spring. It already has hosted a number of events, but expansions would depend on additional water availability.

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Jan 13 2009

NC/SC: Utilities and other into Catawba

In a second significant Southeast states water rights-related ruling on Monday, the U.S. Supreme Court held that a group of subsidiary parties ought to be allowed to join in the dispute over use of the Catawba River.

Those parties include the city of Charlotte, Duke Energy and others. South Carolina had argued that their entry would simply increase the time and cost involved in the case.

The two main parties are the states of South Carolina and North Carolina. The South sued the North in 2007 after the northern state said it would let the cities of Concord and Kannapolis – although they are located in another river basin – to obtain water from the river. [see Charlotte Observer, January 13]

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Jan 12 2009

GA/AL/FL: High Court tosses Georgia petition

Published by under Alabama,Florida,Georgia

The long-running tri-state battle over rights to the water from Lake Lanier took a major turn on Monday, as the U.S. Supreme Court turned down a key state of Georgia request in the dispute.

Georgia was trying to reinstate an agreement reached in 2003, involving both federal and state entities, to send part of the lake’s water to the Atlanta area for drinking water.

The court did not explain its reasoning, simply letting stand a decision (which Georgia had appealed) in the U.S. Court of Appeals (Southeastern Federal Power Customers v. Green) from last February.

That decision concluded, “We need address only one of the statutory challenges. Under the WSA, the Corps must obtain prior Congressional approval before undertaking “major . . . operational changes.” § 301(d), 43 U.S.C. § 390b(d). Because the Agreement’s reallocation of Lake Lanier’s storage space constitutes a major operational change on its face and has not been authorized by Congress, we reverse the district court’s approval of the Agreement.”

Lake Lanier

Lake Lanier watershed/Army Corps of Engineers

The court described the geography: “Lake Sidney Lanier, a federally owned reservoir operated by the Corps and located in Georgia. It was created by the construction of the Buford Dam on the Chattahoochee River, approximately fifty miles northeast of the city of Atlanta. To the south of the Buford Dam, the Chattahoochee joins the Flint River and the two become the Apalachicola River, which flows through northern Florida andeventually into the Gulf of Mexico.”

The Court of Appeals also concluded that the 2003 deal was a secret settlement between Georgia and the U.S. Corps of Engineers, and on that basis was invalid.

Alabama Governor Bob Riley said he was pleased with the decision: “Today’s decision by the U.S. Supreme Court confirms that federal law does not permit Atlanta to take more and more water from Lake Lanier to the detriment of downstream interests in Alabama and Florida. Georgia tried to pull off a massive water grab, and this decision makes clear that Georgia’s actions were in blatant violation of federal law. . . .

“After nearly two decades of litigation, this marks a key milestone because the legal framework governing the Apalachicola-Chattahoochee-Flint River Basin has now been conclusively determined. The legal principle established in this case should now be applied to validate Alabama’s challenge to Atlanta’s current illegal consumption from the federal reservoirs in North Georgia.”

[see Birmingham Business Journal, January 12]

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