Ridenbaugh Press/Water Rights

A Texas attorney is drawing attention to a recent state supreme court case that could have an effort on a wide range of water rights issues.

In part, the case reflects the strains in a state torn mostly by an appropriation water rights system but with some riparian elements.

The case, Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel, originates from Atascosa County. The Texas Supreme Court describes the case as concerning “(1) whether landowners within the Edwards Aquifer boundaries on the groundwater under their property and (2) whether water from an artesian well that flowed into a reservoir constituted water controlled by state regulations or by the Edwrds Aquifer Authority.”

The court went on, “This appeal arises from Day and McDaniel’s challenge to the aquifer authority’s limited irrigation permit to pump water from a reservoir on their property. In an appeal from the aquifer authority’s permit ruling, the trial court sided with Day and McDaniel, deciding that the reservoir water was aquifer water water subject to the authority’s control. The court of appeals reversed, holding in part that the landowners had a vested right to aquifer water beneath their land but that groundwater flowing into the reservoir was ‘state water’ subject to state regulation.”

In an opinion article, attorney Cynthia Cox Payne said that “On this significant issue of whether property owners have a vested interest in the groundwater beneath the land they own, in addition to EAA and Day and the State of Texas – which was added as a defendant by EAA – 15 different organizations weighed in on this issue in the form of amicus briefs. Some of the amicus briefs were filed by the Texas and Southwestern Cattle Raisers Association, the Texas Farm Bureau, the Texas Comptroller of Public Accounts, the Texas Wildlife Association, the Harris-Galveston Subsidence District and Canadian River Municipal Water Authority, to name a few.”

She also noted some of the far-ranging questions asked by the justices, including:

• “A landowner has some rights (to groundwater), what are they?”
• “Why should we treat water differently than oil and gas?”

• “Texas Water Code §36.002 states: ‘The ownership and rights of the owners of the land and their lessees and assigns in groundwater are hereby recognized …’ So, what ownership is the statute addressing?”

• “Why distinguish groundwater in place from zoning?”

• “If regulation of groundwater is okay, then, what formula should the state use (to set limits)?”

• “If the case went back down, what would the takings claim look like?”

• “If you (litigant Day) prevail, does that open the floodgate to litigation?”

Shell Oil Company, which has been pursuing water rights in the Yampa River area as part of its efforts to develop shale oil in Colorado, opted on February 24 to kill the effort.

As much as 800 billion gallons of oil are thought to be available in shale lying in the mid-Rocky Mountains, but it is not easily obtained, and mining it could require massive quantities of water.

The company said that it may not be giving up permanently. “The exact scale and timing for development will depend on a number of factors, including progress on our technology development, the outcome of regulatory processes, market conditions, project economics and consultations with key stakeholders,” a statement from Shell said.

But in giving up the quest for water rights, the company gave up a major prospective requirement for large-scale development for years to come. [see Denver (CO) Post, February 23]

The new planned Idaho water appeals court – a merged function of the current Snake River Basin Adjudication Court – may get a strong workout in coming months with an appeal of a state water resources department decision filed in February from an Eagle developer.

The developer, M3 Eagle, has said it plans a development “slated to be constructed in the Foothills north of Eagle, Idaho, over a 20-year span. At build-out, M3 Eagle is anticipated to include a maximum of 7,153 homes and 245 acres of commercial, office and business uses, and over 2,400 acres of open space, which accounts for approximately 40% of the master plan.” M3 has proposed to tap into a regional aquifer to meet the development’s water needs.

In its most recent decision on M3′s water application, on January 25, the Department of Water Resources summarized:

On November 21,2006, M3 Eagle, LLC filed an application to appropriate water seeking to appropriate 42.5 cubic feet per second (“cfs”) from ground water for municipal purposes. On August 27, 2007, M3 Eagle filed an amended application to appropriate water. The amended application sought to appropriate 27.47 cfs from ground water for municipal purposes. On April 22, 2008, M3 Eagle filed a second amended application to appropriate water. The second amended application seeks to appropriate 23.18 cfs of ground water for municipal purposes.

In addition, the application seeks a diversion to storage rate of 2.93 cfs and a diversion from storage of 1,668 acre feet of water. The application also states that 1,836 acre feet of water will be stored in ponds on the proposed development. The applications to appropriate water were assigned water right no. 63-32573. Notice of the second amended application was published statewide on May 1 and 8, 2008. A large number of individual protestants and entities filed protests against the application.

The department granted a water right, but subject to substantial conditions, including “The total flow rate diverted under this right shall not exceed 3.28 cfs. The total annual volume diverted under this right shall not exceed 923 acre feet. Prior to the diversion and use of water under this approval, the right holder shall install and maintain acceptable measuring device(s), including data logger(s), at the authorized point(s) of diversion, in accordance with Department specifications.”

The amount of water allowed was much smaller than M3 had sought, which was as much as 15 million gallons daily, and – the company said – far less than recent studies of the aquifer seemed to suggest would be sustainable. M3 General Manager Gerry Robbins told the Idaho Statesman that “We believe the hearing officer made an error, despite the overwhelming evidence we provided that there is adequate storage of water in the underlying aquifer.”

The Pierce Gulch Sand Aquifer has been described as “thick” and “transmissive” and underlies most of the Boise metropolitan area.

The Statesman editorialized on January 22, “This is not, to succumb to the inevitable bad pun, some dry debate over water rights. It’s a question of how, or whether, the Valley can grow – a question we just can’t afford to get wrong. The answer should be based in science, and right now, the science is in troublingly sharp disagreement.”

The Idaho Supreme Court in December designated the current SRBA Court as the appellate court for appeals from Department of Water Resources decisions.

[Department of Water Resources page on M3 is at http://www.idwr.idaho.gov/News/Issues/M3/m3_default.htm]

The California Department of Water Resources said on February 26 that its water releases, based on expected supply, will be much lower than usual but a little higher than had been expected.

It was enough to encourage Senator Dianne Feinstein to pull her legislation in the U.S Senate which would have been aimed at allowing for more water rights transfers in California. She said in a statement, “I will watch this situation carefully and I am placing my proposed amendment on hold; however, I reserve the right to bring it back should it become necessary.”

The department’s statement:

The Department of Water Resources (DWR) today increased
anticipated 2010 State Water Project deliveries to California’s water contractors from five to 15 percent of requests. If this amount remains unchanged by the final allocation in late spring this will be the lowest allocation percentage in the project’s history.

“Despite a relatively wet winter our reservoir storage levels remain low,” said DWR Director Mark Cowin. “After three years of drought conditions and a number of mandated pumping restrictions even a wet year won’t get us out of the woods. We need increased conservation, a more reliable water delivery system and a comprehensive solution for California’s water crisis.”

Lake Oroville is at only 54% of its average storage level for this time of year. And while San Luis Reservoir is at 80% of normal for this time of year, the vast majority of that supply is unavailable for this year’s allocation. Most of the supply in San Luis is earmarked for individual water contractors who are trying to stretch these supplies carried over from previous years. So supplies in two key State Water Project reservoirs are well below where DWR would like them to be. Continue Reading »

The International Joint Commission said that it will hold public consultations from March 22-31, 2010 to invite comment on the report of its International Upper Great Lakes Study Board entitled Impacts on Upper Great Lakes Water Levels: St. Clair River.

The report concludes the first phase of the International Upper Great Lakes Study and examines the physical changes in the St. Clair River since 1962. It recommends that measures to remediate the increased conveyance, or water-carrying capacity, of the river not be undertaken at this time. It also recommends that mitigation measures in the St. Clair River be examined as part of the comprehensive assessment of the future effects of climate change in the second phase of the study.

The Arizona Supreme Court on February 19 approved a lower court acceptance of a Gila River Indian Community settlement as part of the larger Gila River Adjudication.

Th court noted that as a result of the 2004 congressional adoption of the Arizona Water Settlement Act, “Under the settlement at issue here, GRIC will receive 653,500 acre-feet of water per year from a combination of sources, in return for which GRIC and the United States on GRIC’s behalf waive claims to greater diversion rights, damages to water resources, and the right to contest certain uses of Gila River water.”

The court continued, “In May 2006, the settling parties applied for approval of the GRIC settlement agreement with the adjudication court. The court ordered the Arizona Department of Water Resources to prepare a factual and technical assessment of the settlement. ADWR submitted its assessment in August 2006.”

Objections emerged from three other tribes, the San Carlos Apache Tribe, Tonto Apache Tribe, and the Yavapai-Apache Nation, along with some cities, businesses (notably ASARCO mining) and others. After wading through these, but defining the issues relatively narrowly, the Gila River adjudication court approved the Gila tribes’ settlement. The objectors appealed, arguing among other things that the adjudication court was acting too narrowly.

The high court did note that “In sum, the water claimed on behalf of GRIC, its current water use, and GRIC’s Globe Equity Decree rights are each considerably greater than the amount allocated to it under the settlement agreement. Accordingly, the adjudication court had ‘a reasonable basis to conclude that [GRIC’s] water rights . . . established in the settlement agreement . . . are no more extensive than [GRIC] would have been able to prove at trial.’”

[see the decision at http://www.supreme.state.az.us/opin/pdf2010/WC070001_WC070003.pdf]

California Governor Arnold Schwarzenegger speaks at a signing of the agreement with Oregon Governor Ted Kulongoski/California Governor’s Office

California Governor Arnold Schwarzenegger and Oregon Governor Ted Kulongoski have signed final agreements advancing the historic resolution of Klamath River resource issues and the Klamath River dams, along with U.S. Secretary of the Interior Ken Salazar, PacifiCorp Chief Executive Officer Greg Abel and the chairmen of the Klamath, Yurok and Karuk Tribes.

The Klamath Basin Restoration Agreement and the Klamath Hydroelectric Settlement Agreement begin the process of the largest dam removal and river restoration project in our nation’s history. The actions detailed in the two agreements will also restore what was once one of California’s largest salmon runs.

“Today’s historic agreement is testament to the great things we can achieve by working together,” said Governor Schwarzenegger. “Everyone here cares about the magnificent Klamath River and we are taking action now to preserve this natural wonder for generations to come.”

In November 2008, Governor Schwarzenegger, with then-Secretary of the Interior Dirk Kempthorne and Governor Kulongoski, signed an Agreement in Principal to remove the Klamath dams (three in California and one in Oregon). During the past 15 months, dozens of parties have met on a regular basis to complete the final Dam Removal Agreement. There is a complex framework for dam removal that balances the timing of removal of each of the four dams with operating conditions and the costs of replacement power for PacifiCorp customers. Subject to Congressional approval and Department of Interior environmental review, the final agreement provides a target removal date of 2020 for the first dam, with removal of the remaining dams following as soon as possible. Additional environmental and engineering work will determine precisely how and in what order that process takes place.

The Klamath Basin Restoration Agreement provides for restoration of important salmon habitat on Klamath tributaries and allocates water rights and guarantees water deliveries for both farmers and for the environment. The basin restoration will cost about $1 billion over 10 years and will be financed by the federal government. The agreement is also subject to Congressional approval. [California Governor's office] Continue Reading »

Dennis Stowell

The chief Utah Senate backer of a bill aimed at expanding groundwater banking efforts to certain local water districts, said he’s hanging on to the measure for the time being until some of the local impacts of it can be more thoroughly assessed.

Senate Bill 20, backed by Senator Dennis Stowell, R-Parowan, among other things:

. permits a local district to acquire groundwater rights;
. allows the creation of a local district for the development and execution of a groundwater management plan in cooperation with and approved by the state engineer;
. provides that a groundwater management plan described in the preceding paragraph may include the banking of groundwater rights by a local district in a critical management area following the adoption of a groundwater management plan by the state engineer;
. exempts the creation of a local district for the development and execution of a groundwater management plan from the election requirement

Water users and managers in Iron County expressed some concern about the idea, about its scope and the potential for creating a powerful local district without a voter election. It is slated for discussion at a number of local meetings in Iron County, Cedar City and elsewhere.

The measure already has been passed in the Senate, and is awaiting House action.

A Colorado firm reported in February that it is developing a cooperative arrangement with Colorado State University in the area of water conservative research. From its statement:

Regenesis Management Group, LLC, a company that focuses on the efficient use of finite natural resources through the development of innovative techniques, software and instrumentation, announced today that it has entered into a long-term research and development arrangement with Colorado State University to facilitate water conservation research.

The arrangement involves the Warner College of Natural Resources at Colorado State University along with faculty from the Colleges of Agricultural Sciences and Engineering. It is designed to provide for interdisciplinary research in the areas of agricultural crop optimization and will result in tools designed to assist in management of the water budget for farms and protect the rights of downstream water users. This is the first arrangement of its type designed to bring “above-the-surface” and “sub-surface” technical competencies together to track overall water usage, while managing proper accounting of irrigation return flows. The goal is to allow water users to better utilize their water resources for agriculture, while optimizing their consumptive use for alternative applications. The agreement also allows Regenesis Management Group to assume certain intellectual property rights as a result of the research for applications in the private sector. Continue Reading »

A group of seven west New York cities, villages and towns said in mid-February they are just about ready to press for a joint municipal water supply through regional transmission lines from Lake Erie.

The seven communities will seek to join the Chadwick Bay Regional Development Corporation, and seek a $400,000 development grant.

The seven are Dunkirk (city and town, which are separate entities), Portland, Sheridan, Pomfret, Fredonia, and Brockton. The lead applicant was designated as the city of Dunkirk.

[see the Dunkirk (NY) Observer, February 16]