Archive for November, 2009

Nov 30 2009

CA: Central Valley contracts under attack

Several key Central Valley water delivery contracts could damage fish runs among other things, and ought to be stopped – according to a group of environmental ground which filed suit in the 9th Circuit Court of Appeals on November 30.

EarthJustice, which was among those groups, described the action this way:

Conservation groups have appealed a decision to keep long-term water delivery contracts in California’s Central Valley that would result in years of damage to devastated salmon and other native fisheries, and fail to protect and restore California’s largest estuary, the Sacramento-San Joaquin Delta and San Francisco Bay.

The appeal was filed in the U.S. Court of Appeals for the Ninth Circuit by conservation groups including the Natural Resources Defense Council and the San Francisco Baykeeper, represented in court by Earthjustice and NRDC. The groups charge that the contracts, based on a 2005 biological opinion on the delta smelt that has been thrown out by a federal court, violate the Endangered Species Act and must be renegotiated to reflect current science.

“These water contracts must be revised to reflect a reasonable level of water diversions, require sensible conservation measures, and protect the collapsing Delta if we are going to fix California’s broken water system and restore healthy fish populations,” said Kate Poole, lead attorney at the Natural Resources Defense Council. Continue Reading »

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Nov 25 2009

WA: New water right transfer law planned

Published by under Washington

The Washington Department of Ecology, which manages water rights in the state, is preparing legislation that could have the effect of decoupling water rights from tracts of law.

The proposal surfaced in a November 24 report in the (Kennewick) Tri-City Herald.

Like most other western states, Washington water rights law is based on the prior appropriation doctrine, which generally links water rights to pieces of land and its beneficial use on that land, and provides that water not put to productive use for a specific period (often five years) can be considered a right abandoned. Critics in various places have suggested that can lead to wasteful use of water in the interest of not losing water rights.

The Columbia-Snake River Irrigators Association has suggested a compromise of sorts, allowing water users who save water through conservation to retain half of their water rights if they put them to use on additional tracts of land. The other half of the water would go back to the Columbia River, as in-stream flow, for fish propagation and habitat.

The new Ecology proposal would be somewhat similar to that of the irrigators. But it would also incorporate a new fee, and provide for a new set of rules that would go into effect upon application by a water user. The Herald said that some people who have heard of the new proposal question whether it may cause some applicants eventually to lose some of their water rights.

Both irrigators and state officials say that about 17% of water now used for irrigation could be saved if improved conservation methods are put into effect, without cutting back on agricultural activity.

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Nov 21 2009

GA: Litigator for state at $855/hour

Will the governor’s office be hearing from constituents about this?

The state of Georgia is planning to hire litigator Seth Waxman, a former federal solicitor general, to pursue its legal case against Florida and Alabama for water from the Lake Lanier system. Waxman’s hourly fee: $855 an hour.

The office of Governor Sonny Perdue does point out that this is a discount: Waxman’s usual fee is $950 an hour.

Waxman replaced another litigator, Paul Clement, another former solicitor general who had extensive relevant experience but also had a potential conflict of interest in having been an attorney for the U.S. Army Corps of Engineeers, which also is a participant in the tri-state case.

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Nov 20 2009

WA: Yelm moves toward seizure

Yelm, Washington – located east of the Olympia area – said in November that it plans to exercise its eminent domain powers to seize water rights in the area which have been held by the McMonigle family.

It may not come to that. The city has offered to buy the rights, for up to $2,500 per cubic foot of water. And the McMonigles have said they would be willing to sell, for no less than $5,000.

So far, the city reportedly has spent $200,000 on the effort. [see Nisqually Valley News, November 20]

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Nov 19 2009

NM: Protests blast rights request

Published by under New Mexico

A group of Catron and Socorro County residents have organized in opposition to a filing by the Augustin Plains Ranch LLC which said said could amount to a major “water grab” in the region.

As many as 900 protesters have indicated opposition to the proposal.

Augustin Plains, which is based in New York, filed in 2007 for permission to develop 37 wells which would deliver 54,000 acre-feet annually.

The El Defensor Chieftain reported on November 18 that “The wells would be located north and south of U.S. 60 just inside Catron County’s eastern boundary, between the Very Large Array and the town of Datil. An amended application, filed in May 2008 and approved by the State Engineer in August of that year, called for an increase in the depth of the drilling from 2,000 to 3,500 feet. It also expanded the area of proposed places of use to any areas within Socorro, Catron, Sierra, Valencia, Bernalillo, Sandoval and Santa Fe counties that are in the Rio Grande Basin.”

Concerns raised included a lowering of the water table in the area, and the prospect that waters could eventually be shipped from some of the rural areas of the state toward Albuquerque. An area geologist was quoted as saying that “You should only be concerned if you dislike the idea that someone will steal your water so Albuquerque can grow.”

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Nov 16 2009

OK: Norman interested in Sardis negotiations

Published by under Oklahoma

The city of Norman, Oklahoma, could become a key player along with a group of other local governments in ongoing negotiations over water from Lake Sardis.

They all await further word from Oklahoma City, which also has been involved in water rights discussions. But a new coalition of local governments evidently are prepared to work out shares and costs for however much water remains available in the lake.

Most of Norman’s current water needs are met by Thunderbird Lake, but it is not considered an adequate source for the decades ahead. [see the Oklahoma City Oklahoman, November 14]

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Nov 14 2009

TX: Panhandle plan draws concerns

State and regional planning, much of it by the Texas Water Development Board, came under some criticism on November 11 at a lengthy public hearing on the ideas.

The planning, for what is called Groundwater Managing Area 1, is driven in large part by efforts to managing the limited and diminished water supply in the Ogallala Aquifer. Four counties (Dalhart, Sherman, Moore and Hartley) have set specific goals for maintaining at least 40% of the supply in the aquifer for the next 50 years.

But some water users in the area think the state’s planning overreaches. The plans also have drawn concerns from the companies owned by Texas businessman T. Boone Pickens, who has purchased numerous water rights in the area, developing a massive private water market. [see Amarillo (TX) Globe-News, November 12]

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Nov 13 2009

KS: De Soto picks up large rights

Published by under cities,Kansas

The city of De Soto, Kansas has reached an agreement with an area developer to obtain – as a permanent transfer to the city – as much as two million gallons per day of ground water rights, the option to obtain as much as three million in addition, plus half of the dozen water well fields west of town.

The water is associated with water right No. 38.

The city had launched a legal action against Sunflower Redevelopment, bringing in the state Division of Water Resources, to seek a formal declaration that the firm had abandoned its water rights. The legal action will be ended with approval of the new agreement. [see De Soto Explorer, November 12]

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Nov 11 2009

MI: Debate heats over groundwater regulation


Dan Scripps

A state legislative proposal to declare Michigan’s ground water as being in owned in the public trust – a formulation similar to that of most western but only some eastern states – has begun developing heated opposition.

House Bill 5319, a one-page measure, adds a provision to state water law saying that “the waters of the state, including groundwater, are held in trust by the state. The state shall protect these waters and other natural resources that are subject to the public trust for the benefit of present and future generations.”

Prime sponsor Representative Dan Scripps was quoted as saying that “Those [existing state provisions] are important in defining how much water you can use. The top limit on where you can get a permit from the state for water withdraws is 100,000 gallons if it impacts a trout stream, two million if it impacts the Great Lakes Basin. And that’s great. It’s important that we have that in place. What this does is say even with those limits if water is being used in a way that has a local impact, an individual trout stream would run dry or somebody’s well would no longer produce, or basin wide impact, even if it falls within the limits, we have the ability to stand up and say that’s not an appropriate use.”

And he said that “We’re surrounded by 20 percent of the world’s fresh water, and with that blessing comes an incredible responsibility. We must act as responsible stewards of our waters and preserve our lakes, rivers and beaches for future generations. Our waters are not only part of our heritage, but a key part of creating and protecting thousands of jobs across Northwest Michigan and a cornerstone of Michigan’s tourism industry.”

Opposition has also developed. Russ Harding is senior environmental analyst and director of the Property Rights Network at the Mackinac Center for Public Policy, offered this critique of the proposal:

When politicians talk about placing natural resources in public trust, landowners should be worried. The right to own and use private property is a bedrock principle of a free people. These rights are threatened by House Bill 5319, which would place groundwater in public trust and require landowners to secure a permit from the state of Michigan in order to use that water. The bill would essentially overturn more than a century of Michigan water law.

Property rights are often compared to a bundle of sticks. Philosopher John Locke was an early proponent of this idea, which holds that the sticks that make up the bundle are a compilation of the various rights that come with owning private property, including the rights to live on or bequeath it. Water rights are a significant “stick” in that bundle. With the introduction of House Bill 5319, Michigan property owners are threatened by government action that would steal a stick from that bundle and give it to the state. Continue Reading »

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Nov 07 2009

CO: Court holds approach is right, details not

The Colorado Supreme Court issued what amounted to a split decision on an environmental challenge to a local water district long-range planning effort. The attempt at long-range planning is okay, the court said, but some of the details used in setting projected water quantities were flawed, and would have to be revisited.

The court agreed to a planning period extending to 2055. The plan was ordered into place in September 2008 by Judge Gregory G. Lyman of Water Division 7.

The November 2 decision, in Pagosa Area Water and Sanitation District and San Juan Water Conservancy District, v. Trout Unlimited, overturned a ruling from a lower water court.

From the court’s summary of its decision: Continue Reading »

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