Montana House Bill 575, sought by miners to effectively determine that water pumped out of the ground during production of coal bed methane production should legally be considered surface water, was passed by the state legislature but vetoed on April 29 by Governor Brian Schweitzer.
The Northern Plains Resource Council, which strongly opposed the measure, said that it “has never opposed coal bed methane development—as long as it is done responsibly. Northern Plains’ members care passionately about how this development proceeds because of the industry’s potential to ruin Montana’s waters (surface and groundwater) and its lands and our agricultural livelihoods. We believe that the devastating effects that methane development will have on our water do not have to happen if the methane industry will simply “do it right” and leave the water in the ground or re-inject it.” A substantial number of farmers and other water users also opposed it.
From Schweitzer’s veto message:
I have vetoed House Bill 575 because I believe the bill reverses longstanding principles of Western and Montana water law by allowing the issuance of a permit for the use of water associated with coal bed methane (CBM) production without providing protection to senior water rights holders, other than some limited compensation under a government program. Some of the water rights in jeopardy date back to the late 1800s.
Reliance on this water has served as the basis of a stable agricultural economy in southeast Montana for generations. Montanans want energy development but they also want to ensure that their agricultural neighbors are able to continue their successful operations well into the future without compromise of their established rights.
House Bill 575 was written in response to recent court decisions, but the “solution” devised in the bill is contrary to those decisions. With a sleight of hand, House Bill 575 classifies CBM groundwater as surface water, thereby circumventing the requirements of Montana’s Water Use Act, Montana’s cornerstone for protection of senior water rights. Ultimately, the bill fails lo reconcile the substantive conflict between the extraction of water in the CBM process and senior water rights.
We must do better. Montana needs to take a new approach to devising a strategy that protects senior water rights holders, reduces discharges of untreated water into our surface waters, and allows responsible CBM development. CBM producers, like all other users of water, need to show that existing water rights are not being adversely affected, or they must develop long-term mitigation plans that will provide replacement water now and into the future after CBM production ceases.
The developer of a new RV park, Lazy Z Meadows, near the small city of Sisters has agreed to sell 63 acre-feet of early-priority date water to the Deschutes River Conservancy and associated organizations.
The purchase price was said to be upwards of $400,000. The rights are located on the east side of the Cascade Mountains.
The water is expected to be used in-stream at Whychus Creek, to encourage fish flows.
Developers said they did not expect the water would be needed for their efforts. A downturn in the region’s development economy may also have been a factor. [see Oregon Public Broadcasting, April 30]
A group of Maine residents protested at the Augusta statehouse to draw attention to legislation aimed at slowing down efforts by bottled-water companies to extract drinking water from the stat.
The legislation, L.D.1028, was aimed at expanding local government authority over water extraction. A hearing on the measure was held on April 29.
The organized opposition came from a group called Save Our Water. Its self-description: “SOH2O (Save Our Water) began as a group of concerned citizens from four communities in Southern Maine opposed to a quietly, and some would say secretively, negotiated deal between Kennebunk, Kennebunkport and Wells Water District and Nestle Waters N. A. Corporation that would allow Nestle to extract up to 433,000 gallons of water per day from the Branch Brook Aquifer for as long as 55 years. That was the beginning of part of a larger battle to protect our water as a life essential natural resource that belongs to all living beings on this planet.” [see WCSH6.com, April 29]
The California city of Vallejo has had an easement on a patch of hilly land (which is owned by Edward Biggs), and a water pipeline runs through it – though the land isn’t within Vallejo’s boundaries. It lies within the bounds of the nearby city of American Canyon, and American Canyon has filed an eminent domain action against Vallejo.
Nothing personal, the American city officials say – their neighbor simply was swept up a larger operation.
Vallejo isn’t objecting generally but wants to ensure its easement is protected. Ordinarily, when property is seized through eminent domain, all rights are taken at the same time.
Negotiations are underway. [see the Vellejo Times-Herald, April 26]
Two regional newspapers have published extensive takeouts on the water supply situation – increasingly tenuous – in their respective states.
The Portland Oregonian points out how water demand, and groundwater extraction, has increased dramatically in the last half-century, and how it is expected to continue that way in the next few decades.
The supply difficulties are not limited to the relatively dry portion of the state east of the Cascades, much of which is desert or highly arid country. on the westside, demand has increased heavily, most notably in Washington County (rapidly-growing, and the state’s second largest, located just west of Portland) and Clackmas County (just south of Portland).
Said the article: “In a state that boasts about webbed feet, access to water is increasingly contested. The state estimates that in the coming years, demand will grow by 1.2 million acre-feet; we use about 9 million acre-feet now. Whoever controls the limited supply will control new housing and industry and how farming expands.”
Also today, the Denver Post reports that a mass of Front Range water projects, with a combined estimated price tag of upwards of $3 billion, are putting a squeeze on water supplies there.
Among the concerns: So-far limited cooperation among the various water developers, which include Aurora Water, cities including Denver, Greeley and Fort Collins, the Northern Colorado Water Conservancy District and Northern Colorado Water. And despite all the development, some estimates suggest that water still will be in shortfall a few decades out.
If you capture rain water – falling on your property – in a rain barrel, do you properly own that water?
That may depend on where you live. The snap answer might appear to be: no, if you’re in a prior appropriation state, and yes if riparian. But the details (such as, to what use is the water being put) are a lot more complex.
A lot of this is hashed through in the new Popular Mechanics magazine article, “Who Owns the Rain? Hint: It’s Not Always Homeowners.”
The article notes: “By capturing rainwater, some homeowners are breaking the law. This has put city and state governments in an awkward position—smack in the middle of competing water users and advocates, often from within their own agencies, of conserving water to protect supplies.”
Another prospect for aquifer recharge: The Virgin Valley Water District, which has been receiving more water from the Virgin River than it needs.
Recharge is still only in the study stages. But a district hydrologist said in a report, “One option available to VVWD is to evaluate the potential of artificial recharge into the groundwater aquifer and store the unused permitted water underground to minimize evaporative loss. The recharged water can be recovered at a later date when VVWD needs to utilize the available water resource.”
[see St. George (UT) Desert Valley Times, April 21]
For many years, the small city of Eagle Point, Oregon, has relied on a region water system operated by the Medford Water Commission – Medford being the nearest large city. Medford, however, has seen increasing pressures on its water supplies, and has sent word to more rural recipients that they may need to find another source of water.
Eagle Point has done just that.
It has reached an agreement to buy from the Medford Irrigation District about 10 cfs of water, starting small and gradually rising to that point. An initial buy extends to 1.9 cfs. The initial cost amounts to $181,296. [Upper Rogue Independent, April 20]
The battle between North and South – Carolina, that is – over the use of the Catawba River continues.
Blan Holman of the Southern Environmental Law Center has set out the case for a water permitting system, a substantial change in law from the riparian approach South Carolina has long used: Continue Reading »
The Colorado Supreme Court has held that water produced and diverted in the process of coalbed methane production should be considered “beneficial use” under the state’s water appropriations system, and so must be regulated – a defeat for energy companies which had hoped to bypass regulatory.
Area landowners in Colorado had sought the ruling as a handle on methane producers’ use of water in the area. Plaintiffs included La Plata County resident Jim Fitzgerald and ranchers William and Elizabeth Vance.
Energy producers argued that the water use had little practical impact on the area.
The Supreme Court held on April 20:
This is an appeal from a declaratory judgment action
brought in District Court, Water Division 7 by William S. Vance, Jr., Elizabeth S. Vance, James G. Fitzgerald, and Mary Theresa Fitzgerald. They asked the water court to determine the legal obligations of the State Engineer and Division Engineer for Water Division 7 regarding well permits and augmentation plans when ground water is diverted for the purpose of coalbed methane production.
The Engineers and BP America Production Company, an intervenor in the action, opposed the request for a declaratory judgment, arguing that the use of water during coalbed methane production is not a “beneficial use” and thus need not be regulated. The water court held that coalbed methane production constitutes an appropriation for a “beneficial use,” and that consequently, the Engineers cannot allow out-of-priority diversions without a well permit and, where necessary, a decree adjudicating an augmentation plan. This direct appeal followed.
We now affirm the water court. The Water Right Determination and Administration Act of 1969 defines “beneficial use” as “the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.” § 37-92-103(4), C.R.S. (2008). Under the language of the Act, the coalbed methane process “uses” water — by extracting it from the ground and storing it in tanks — to “accomplish” a particular “purpose” — the release of methane gas. Consequently, the extraction of water to facilitate colabed methane production is a “beneficial use” as defined in the Act and a “well” as defined in the Colorado Ground Water Management Act. Coalbed Methane production is therefore subject to regulation under both acts. We reject the argument that water used in coalbed methane production is merely a nuisance rather than a “beneficial use.” On the contrary, the use of water in coalbed methane production is an integral part of the process itself. The presence and subsequent controlled extraction of the water makes the capture of methane gas possible.
Accordingly, we affirm the order of the District Court for Water Division 7 and remand for further proceedings consistent with this opinion.