Ridenbaugh Press/Water Rights

The Walker River Basin Restoration Project has a range of environmental and other impacts, but on a list of components recently announced one stands out in the area of water rights:

Appraisal of water rights in the market of willing sellers.

Sales of water rights in that area could become increasingly important.

The Desert Research Institute has reported about a decision tool related to water rights:

“The overall objective of this project is to develop, test and implement a computer-based DST for the Walker River basin to evaluate the effectiveness of proposed water right acquisitions for increasing water deliveries to Walker Lake. The DST will capture the spatial and temporal complexity of important relationships among climate, evapotranspiration, river flows, groundwater-surface water exchange along the river, irrigation practices, groundwater pumping, lake volume, and total dissolved solids levels in Walker Lake.”

Since at least about 1919, according to neighbors of the Sutey Ranch near Aspen, nearby water users have been able to access water from a ditch running through the Sutey property. Until just a few years ago, that is, when owner Richard Jelinek barricaded the ditch and refused them access to the water.

In 2006, Jelinek sold the land to Leslie Wexner (owner of a clothing retail business that includes Victoria’s Secret and Bath and Body Works), who continued the policy. Wexner now wants to swap some of that land with the Bureau of Land Management. Spotting a legal opening, owners of property at the neighboring StarkMesa subdivision have challenged the swap and the ditch management.

Mark Hamilton, counsel for the neighbors, wrote Pitkin County to say that “Mr. Wexner and his predecessors destroyed part of the ditch and began using the headgate to divert water into ponds without permission from the Stark Mesa homeowners.”

Attorneys for Wexner declined comment.

[see the Aspen Daily News, January 25]

The U.S. Supreme Court on January 25 killed the lawsuit pursued by the state of Mississippi against Memphis and its main utility, alleging improper use of ground water.

A statement from Memphis Light, Gas & Water:

The United States Supreme Court this morning denied the State of Mississippi’s petition to appeal its lawsuit brought against the City of Memphis and MLGW, and also denied Mississippi’s request to file an original complaint against the City of Memphis, MLGW and the State of Tennessee in the Supreme Court. The Court’s ruling ends the five year-long suit over the water contained in the underground aquifer that runs beneath both states.

In its suit, the State of Mississippi claimed that the City of Memphis and MLGW were taking more than their share of water from the underground interstate aquifer. The Fifth Circuit Court of Appeals ruled last year that Tennessee had to be included in any lawsuit regarding the use of the interstate water source and that the lawsuit could be heard only by the Supreme Court. In today’s rulings, the Supreme Court ruled in favor of MLGW, the City of Memphis and the State of Tennessee by rejecting both Mississippi’s attempt to appeal the Fifth Circuit’s decision and also Mississippi’s request to file a new lawsuit against MLGW, the City and the State of Tennessee.

Memphis Mayor A C Wharton responded to the news: “This is huge not just because of the court case itself, but also because of the tangential economic implications. Frankly speaking, this lawsuit cast a cloud over our community given the invaluable role that water plays in economic development and industrial decisions. Having it dismissed ensures that this issue doesn’t block progress in a number of significant ways.” Wharton continued, “If there is a message to be remembered in this, it’s the way we went about bringing resolution to it all. With the input of stakeholders like MLGW and local government, we commissioned a study that showed how we use and conserve water. Ultimately this win vindicates our process.”

A Colorado water attorney is raising the question of whether “the Legislature and state engineer have rewritten Colorado’s water laws, dramatically altering the historical scheme, and authorizing the state engineer to give away the nontributary water beneath landowners’ property in the interest of mining minerals.”

An op-ed by Amy Huff, a Durango lawyer, and Bruce Baizel, an attorney at the Oil and Gas Accountability Project in Durango, warned that recent changes in state water law could be costly for traditional water users, including agricultural and residential.

It did note that legal challenges are yet to materialize, and the actual effects of these efforts are not yet totally clear.

But the two suggested that a number practical effects already are clear:

Before the recent legislative changes, people seeking non-tributary water rights, which would not be subject to the prior appropriation system, had to demonstrate they had the landowner’s consent to withdraw the water. The recent legislative changes have exempted those seeking nontributary ground water for mineral development, including oil and gas development, from obtaining landowner consent, and now the state engineer has designated an area of groundwater in the San Juan Basin as nontributary, as long as the permittee is using the water for mineral development.

In response, there were 12 water court applications filed last month by gas operators to obtain water rights for coal-bed methane production purposes. In total, these applications identify approximately 1,300 existing coal-bed methane wells and contemplate an additional 2,000 wells. Many landowners have received notice that a company has filed for a water right that will be diverted through a structure located on their property. The applications filed by entities such as ConocoPhillips, XTO Energy, Southern Ute Tribe, BP, Samson Resources, Four Star Oil & Gas, and Chevron are confusing because, in many instances, the locations of the water rights sought by these companies are broadly defined and are often described as a “well field,” making it very difficult to know where the energy company is planning to drill.

[See Durango (CO) Herald, January 24.]

The city of Cibolo, Texas (not far from New Braunfels) on January 12 opted to buy water rights dating from 1914 from an old mill.

Originally the Mission Valley Mill at New Braunfels, the property more recently has been owned by West Point-Pepperell Inc., and has been offered for sale by them.

The city will pay $537,000 for the property, which amounts to almost $2,500 per acre-foot of water.

[see San Antonio (TX) Express-News, January 21]

Eric Wildman, staff attorney for the SRBA court for just over a decade working for three (of the four) presiding judges, was sworn in as a district judge on January 14.

On the district court bench, he replaces Judge Barry Wood, whose has been chambered in Gooding County. But he also moved in right away to take charge at the SRBA, and appeared at the January 19 information meeting and status conference.

Wildman takes over the SRBA at a point when many – but certainly not all – legal issues have been settled, and the case appeared headed toward a conclusion in the next few years if the last 4,500 or so disputed cases can be resolved.
As staff attorney, he has provided much of the institutional continuity in the case – so that processes and rulings maintain some consistency from judge to judge. “I’ll maintain the continuity of the case,” he said. “Claimants and litigants shouldn’t expect any surprises.”

A key task will be pushing the SRBA through to completion: “That’s the intent and expectation,” he said.

But he also takes over as the court expands its work in two areas: The North Idaho Adjudication and its centralized role handling administrative appeals from the Idaho Department of Water Resources.

The Idaho Supreme Court ordered on December 9 that the SRBA Court will handle appeals in administration of water rights from the Idaho Department of Water Resources.
The order could be taken as building a base for a more permanent role for the SRBA court even after adjudications are completed. It could become what is called in other states a water court.

The order, signed by Chief Justice Daniel Eismann, notes that “any person who is aggrieved by a final decision or order of the Director of the Department of Water Resources is entitled to judicial review,” and that “there is a need for consistency and uniformity in judicial decisions regarding the administration of water rights.”

The order specifically said that “all petitions for judicial review of any decision regarding the administration of water rights from the Department of Water Resources shall be assigned to the presiding judge of the Snake River Basin Adjudication District Court of the fifth Judicial District. Review shall be held in accord with Title 67, chapter 52 of the Idaho Code, except that, once filed, all petitions for judicial review shall be forwarded to the clerk of the [SRBA Court].”

The order was not designated to be effective until July 1.
Wildman made clear, in an interview with the Digest, that he is working through how best to manage the court’s expanded role, even as it works to bring the SRBA to conclusion. Continue Reading »

One of the most difficult parts – for the state of Georgia – of the federal court ruling against Georgia in its water battle with Alabama and Florida was that the trial court judge, Paul Magnuson, said that his decision was not final, and therefore was not ripe for appeal to appellate court.

That part of the decision, however, was overturned on January 21, as the 11th Circuit Court of Appeals declared the decision final.

That doesn’t necessarily reflect on how it will view the substance of the case. But it does give Georgia the opportunity to challenge the decision, which would in effect take away much of the Atlanta metro area’s current water supply. Much of it comes from Lake Lanier and associated streams, which the judge said should be apportioned more generously to Alabama and Florida. [see the Miami Herald, January 21]

On January 20, the U.S. Supreme Court issued a decision allowing Duke Energy and Catawba River Water Supply Project, but not the city of Charlotte, to intervene in the case filed by South Carolina against North Carolina in the United States Supreme Court.

The opinion was written by Justice Alito and supported by Justices Stevens, Scalia, Kennedy and Breyer. Groups with bi-state interests (Duke Energy and the Catawba River Water Supply Project) were allowed to intervene. The City of Charlotte was not allowed to intervene because, the Court felt that Charlotte’s interests should be adequately represented by the State of North Carolina.

An opinion in partial support and partial dissent was delivered by Chief Justice Roberts and supported by Justices Thomas, Ginsburg, and Sotomayor. [from the Catawba Riverkeeper, January 20]

The court has yet to act on the substance of the case.

Does the tropical paradise of Bali sound like a water shortage hotspot? Well, consider this report from Balidiscovery.com:

Hundreds of disgruntled residents of Bali’s north shore community of Tejakula have marched on the village of Kutuh in Kintamani, claiming a water retention system is causing disruption downstream.

BeritaBali.com reports that the coastal protesters descended on their hillside neighbors in a convoy of some 30 vehicles on Wednesday, January 13, 2009, to rally against a water retention systems built by the provincial public works department.

Alert to the possibility of conflict, police were deployed to the village of Kutuh. The spokesman for the Buleleng Police Post, Made Sudirsa explained: “The police were only taking anticipatory steps. The movement of the people of Tejakula could not be prevented, although police remained on guard to prevent any conflict.” Two companies of mobile brigade officers (Brimob) and one company of anti-riot police (Dalmas) were sent to the Kintamani area to prevent any outbreaks of public disorder.

Behind the tension, anger from the beach side community of Tejakula that much needed fresh water supplies emanating from the village of Sukawana in Bangli was being diverted away by the hillside village. Continue Reading »

A state where water access and development is notably lightly regulated could start to see some regulation.

The Missouri state Senate committee on natural resources is considering a law that would provide for state regulation for users of water exceeding 100,000 gallons a day. Some farmers, notably in the bootheel area, have expressed concern about running dry of water if neighbors make notably large withdrawals.

[see Missourinet, January 20]