Ridenbaugh Press/Water Rights

President Barack Obama has named Anne Castle as assistant secretary for water and science in the Department of the Interior.

A lawyer, she has extensive bckground water rights. According to the Obama Administration’s release on the appointment:

Anne Castle joined Holland & Hart LLP as a lawyer in 1981 and became a partner in 1987. She is a practitioner in water rights and water quality law, and has over twenty-five years of experience in water rights practice. She has represented a wide variety of clients in water court litigation, including adjudications of water rights, changes in water rights and plans for augmentation, and appeals. She has also represented clients in numerous water rights and water quality administrative proceedings. Her practice includes water rights conveyancing, contracts for purchase, use, and supply of water, and the evaluation and assessment of water rights.

The Northwestern New Mexico Rural Water Projects Act, aimed largely at providing funding and a legal framework for settling long-standing Navajo Tribe water right claims, was passed by Congress on March 26 and signed into law on the last day of the month.

Much of the legislation was put together by New Mexico Senator Jeff Bingaman, negotiating with a number of local interests.

Bingaman’s description of the legislation: Continue Reading »

The Idaho Power Company challenge to the terms of the 1984 Swan Falls agreement ended on March 25 when the company, together with state officials and others, agreed to a “reaffirmation” of the deal, with a few adjustments.

One quick result of the agreement was introduction in the Idaho Legislature, two days later, of Senate Bill 1169, aimed at locking the new framework agreement into place. The measure said the “Public Utilities Commission shall have no jurisdiction to consider in any proceeding, whether instituted before or after the effective date of this act, any issue as to whether any electric utility, including Idaho Power Company, should have or could have preserved, maintained or protected its water rights and hydroelectric generation in a manner inconsistent with the Framework Reaffirming the Swan Falls Settlement entered into by the Governor, Attorney General and the Idaho Power Company dated March 25, 2009.”

The measure had not progressed to hearing by month’s end. The Idaho Legislature was expected to adjourn sometime in mid- to late April.

The agreement also is expected to be delivered to the Snake River Basin Adjudication court, which has been considering the Idaho Power challenge, soon.

In 1984, the Swan Falls agreement resolved a struggle between the State and Idaho Power over the company’s water rights at its Swan Falls hydroelectric facility on the Snake River. The agreement provided that Idaho Power’s water rights at its hydroelectric facilities between Milner Dam and Swan Falls – south of Boise – entitled the company to a minimum flow at Swan Falls of 3,900 cubic feet per second (cfs) during the irrigation season and 5,600 cfs during the non-irrigation season.

The 1984 agreement placed the portion of the company’s water rights beyond those minimum flows in a trust established by the Idaho Legislature for the benefit of Idaho Power and the citizens of the state. Legislation establishing the trust granted the state the authority to allocate the trust water to future beneficial uses in accordance with State law. Idaho Power retained the right to use water in excess of the minimum flows at its facilities for hydroelectric generation until it was reallocated to other uses.

Idaho Power filed suit in the Snake River Basin Adjudication in 2007 as a result of disputes about the meaning and application of the Swan Falls agreement. The company asked that the court resolve issues associated with the ownership of Idaho Power’s water rights and the application and effect of the trust provisions of the Swan Falls agreement. In addition, Idaho Power asked the court to determine whether the agreement subordinated the company’s hydropower water rights to aquifer recharge.

The new proposed settlement resolves the litigation by clarifying that the water rights held in trust by the State are subject to subordination to future upstream beneficial uses, including aquifer recharge. It also commits the State and Idaho Power to further discussions on important water management issues

Western Resource Advocates, a Colorado-based environmental research organization, has released a report arguing that a group of oil companies, interested in developing oil shale in the Rockies, have been hoarding water rights.

From the group’s announcement statement:

Western Resource Advocates (WRA) released its report, “Water on the Rocks: Oil Shale Water Rights in Colorado” that quantifies the water rights that oil companies have established in western Colorado. The report sheds light on the large volume of water already in the hands of oil shale development interests and warns of the
problems that commercial oil shale extraction could cause for Colorado communities, farmers, ranchers, and western rivers.

The “Water on the Rocks” report calls on leaders to carefully consider the full impacts of commercial oil shale development before making decisions. Hundreds of oil shale water rights, totaling almost 2 million acre-feet of stored water and over 11,000cfs of diversions, pepper Colorado’s western river basins and pose challenges to Colorado and other downstream states if these rights are put into use.

“Large scale commercial oil shale development would harm both West Slope and Front Range communities,” said Karin P. Sheldon, WRA’s executive director, “A shift of water to oil shale will dramatically change the landscape in the areas developed. It could mean an end to agriculture and to the historic economic base of these rural communities.”

“Water on the Rocks” is the first report to thoroughly catalogue how much of Colorado’s water is already in the possession of the oil shale industry. The report: Continue Reading »

April looks like the target point for Northern Illinois cities seeking their share of Lake Michigan water to start putting in their requests.

Proposals already are in from Wauconda and Lindenhurst, but another dozen municipalities were expected to roll out their plans in the month ahead. The state does restrict water extraction from the lake, and late-comers to the application process could find themselves out of luck. [Lake County News Sun, March 18]

The prior appropriation system, the bedrock of water policy and law in the western United States and including most of California, may have run the course of its usefulness in the Golden State. That at least was a growing and prevailing view among witnesses at a hearing of the state Senate Committee on Natural Resources and Water, which was undertaking an evaluation of long-term water policy.

Not that riparian rights – the approach used in most of the wetter parts of the country – offer a better solution, the witnesses suggested. Instead, some whole new approach may be needed.

Michael Hanemann, who teaches ag and resource economics at the University of California-Berkeley, told the committee, “For water resource management in California, it is temperature that is going to be the main driver of change in our water system. The combined effect is the California water supply is likely to be reduced … at the same time as the demand for water increases. The single best adaptation California can do is to start to get its house in order now. (One) possibility is some sort of substantive change in surface water rights, toward a more equal sharing of water,”

The Capitol Press newspaper noted that several speakers also proposed regulation of groundwater, as many western states (but not California) do.

The New York Times has posted a cautionary note for anyone – in the United States as well as elsewhere – doubting the importance of regular availability to water: As a practical matter, water rights.

The subject in the town of Quillagua in Chile, an extremely dry place in the Atacama Desert, which in turn is one of the driest on earth.

“What the town did have was a river, feeding an oasis in the Atacama desert. But mining companies have polluted and bought up so much of the water, residents say, that for months each year the river is little more than a trickle — and an unusable one at that. Quillagua is among many small towns that are being swallowed up in the country’s intensifying water wars. Nowhere is the system for buying and selling water more permissive than here in Chile, experts say, where water rights are private property, not a public resource, and can be traded like commodities with little government oversight or safeguards for the environment. Private ownership is so concentrated in some areas that a single electricity company from Spain, Endesa, has bought up 80 percent of the water rights in a huge region in the south, causing an uproar. ”

The story may also serve as a warning about the potential inherent in a water market left unregulated.

The Reno Gazette-Journal newspaper has published online a series of reports on water supply in the region. The most recent, out today: “An Overview of Water Scarcity and Water Market Development.” The author is Loretta Singletary, an extension educator at the University of Nevada Cooperative Extension.

She notes, “Water shortages and quality issues are likely to worsen over time. Water crisis management is not the answer, nor is the use of collaborative processes with no definable endpoint. The U.S. Department of Interior in their report titled, Water 2025: Preventing Crises and Conflict in the West (1998) outline several options for addressing anticipated water conflict. These include more efficient water uses, cut back and/or eliminate existing water uses, develop alternative water resources (cloud seeding and desalinization) and transfer water between existing and new uses through market-based mechanisms such as water banking.”

No, it turns out Colorado won’t have to pay what was estimated at $9 million in legal costs in a long-running water rights case over the Arkansas River. Kansas, which had prevailed on the water rights issues, had asked for legal costs in pursuit of the case. The case overall has been ongoing through the courts for 22 years.

The U.S. Supreme Court made the ruling earlier today.

Instead, Colorado will be asked to pay a much smaller amount for some expert advice – about $163,000.

John Campbell, who has been developing a subdivision at Hailey, Idaho, is late on his property taxes. Last November, he was scheduled to pay $875,125 on the first of four quarterly payments totaling $3,500,500; he is still late.

The city is, however, considering a deal with him: Excusing that first payment and part of a second in return for water rights – an 1883 priority on water estimated to be worth $930,000.

The city council is expected to act on the proposal later this week. [Ketchum Idaho Mountain Express, March 9]