Ridenbaugh Press/Water Rights

The city of Ontario, California, said on March that it plans to buy an annual 426 acre-feet of water and 233 acre-feet of stored water, plus 427 acre-feet in carryover water – enough to meet the latest boom in its population.

The sales price, from the firm Praxair, was $4.9 million.

This is not the first recent buy from Ontario, or the largest. Two years ago, the city spent $24 million on water rights purchased from Sunkist.

The city has been anticipating that in the next two decades, it population will more than double to more than 360,000 people.

[see the Redlands (CA) Daily Facts, March 28]

The Walker River Irrigation District, faced with a number of area farmers interested in selling water rights to the National Fish & Wildlife Foundation, has decided it’s okay with those sales as long as they’re limited to stored water rights directly owned by those water users.

But it said it would oppose any sales of any floodwater or groundwater rights certified by the state, because those are held in trust by Walker.

[see Reno (NV) Gazette-Journal, March 26]

The board vote was unanimous, 3-0, but two other board members did not vote because of disclosed conflicts of interest.

A coalition of Colorado and Wyoming water providers have launched a study, which may last two years, of whether they could as a practical matter build a pipeline from the Flaming Gorge Reservoir area in south-central Wyoming and northern Utah to the Colorado Front Range, which now as ever is on the hunt for new water sources.

Frank Jaeger, manager of the Parker Water and Sanitation District, said at a Denver press conference, “This would develop the compact rights of two states. Those Colorado River rights have not been developed much for municipal and industrial uses. This is the first move of the group to see how we develop the water for two states.”

A number of Colorado and Wyoming districts contributed $20,000 each toward the study, and some more. No Utah organizations appeared to be participating.

If actually built, the pipeline could run more than 500 miles.

The proposal is certain to draw sharp response from the downstream states in the stressed Colorado River system, of which Flaming Gorge is a part.

[see the Denver (CO) Post, March 25.]

Prompted by water supply concerns, the Washington Department of Ecology is appealing the environmental approval of a large development in the Okanogan Valley.

In the action filed with the Okanogan County Board of Commissioners, Ecology is challenging the environmental approval of Silver Spur North Ranch because the project, which has no water rights, will draw more water than is allowed under the state’s groundwater permit exemption.

Silver Spur North Ranch proposes to develop approximately 766 acres, creating 220 individual lots, a 15-site recreational vehicle park, an equestrian center, and recreational center with swimming pools. The first phase of the project estimates it will use 18,800 gallons of water per day, relying on the drilling of permit-exempt wells for its water supply.

That is well in excess of 5,000 gallons of water per day, the limit allowed by common subdivisions without water rights, as confirmed by the state Supreme Court’s opinion in the “Campbell and Gwinn” case. Under the law, the project will require a water right for use in excess of 5,000 gallons per day.

[see Washington Department of Ecology, March 26, http://www.ecy.wa.gov/news/2010news/2010-054.html]

With mitigation water now available for purchase from a senior water right holder, and with state and county officials studying the effectiveness of a domestic water reserve program for upper Kittitas County, the Washington Department of Ecology (Ecology) has extended an emergency rule that currently limits new groundwater withdrawals in the upper county.

New groundwater uses are allowed when the water use is fully mitigated to offset impacts to senior water rights and protect streamflows.

Ecology Director Ted Sturdevant extended the rule for another 120 days on Tuesday, March 23, 2010. New groundwater withdrawals were first halted in July 2009 because of concerns about the impact groundwater pumping in upper Kittitas County has on the total water supply for the Yakima River Basin. The rule was due to expire March 25.

The U.S. Bureau of Reclamation anticipates senior surface water supplies will be rationed this irrigation season. It will be the fifth time water has been rationed to senior water users since 2000. “We’re looking at another likely drought this year,” Sturdevant said. “Allowing new, uncontrolled drilling into the very groundwater that folks downstream rely on — but won’t get this year — just doesn’t make sense. We’re in discussion with the county, and I’m hopeful we can develop a long-term solution soon that provides predictability and balances a finite water supply across competing needs.”

Mitigation water is now available for purchase from Suncadia Resort through a water-banking program that allows for development along much of the I-90 corridor in upper Kittitas County. Ecology is working with Suncadia to process water-budget-neutral requests for prospective home builders and homeowners.

[Washington Department of Ecology, March 24]

In its March 17 decision on Jerry Bass et al v. Jeffrey Salyer et al, the Indiana Court of Appeals put a finer point on aspects of riparian land ownership in Indiana.

Much of the decision concerned ownership claims on other parts of the property, but it bled over into issues about riparian rights.

The case grew out of the subdivision of property in Kosciusko County on the shore of Yellow Creek Lake. Neighbor disputes developed over access to a driveway and over a pier at the property. The Salyer family owned the main property and for years had used the driveway and pier. In 2008 neighbors removed the pier, saying that was in compliance with local ordinances and the law. The Salyers sued, and were upheld at trial court.

The appeals court noted that

. . . a claimant must have a property interest in the land
appurtenant to the water before he can acquire rights to use the water. Although riparian rights arise from ownership of the land appurtenant to the water, we have also held that one may acquire a prescriptive easement in riparian rights.

In Bromelmeier v. Brookhart (1991), we held that the dominant estate holder of a prescriptive easement may use the riparian rights of the
servient tenant. In Bromelmeier, a couple owned property across the road from lots that abutted a lake. A ten-foot-wide “strip” ran between two of the lake lots. For more than twenty years, the couple used that strip to access the lake. They also installed a pier where the strip met the water. Subsequently, the lakeside lot owners on either side of the strip purchased the ten-foot-wide strip and erected a barrier across it. The couple filed suit claiming that they had established a prescriptive easement in both the ten-foot-wide strip and the lot owners? riparian rights in the lake. The trial court agreed that the couple had acquired a prescriptive easement for access to the lake, but the court found riparian rights were “unavailable to those merely holding an easement.” On appeal, the parties did not dispute the establishment of a prescriptive easement in the ten-foot-wide strip, but the couple challenged the court?s determination that an easement cannot be established in riparian rights.

We held that resolution of the issue turned on the intent of the parties when they created the easement.

. . . Having already determined that the Salyers have not established a prescriptive easement in the Drive, we must next determine whether they have established a prescriptive easement in the riparian rights to the lake.

The Court of Appeals found that they had not.

The court also noted definitionally, “Riparian rights have been traditionally associated with owners of land abutting a river or stream, while those with shoreline on a lake or pond acquired littoral rights. But the term “riparian” is now widely used to refer to both classes of ownership, id., and we use that term here.”

[see decision at the decision on line.]

Efforts to reach a Nevada-Utah agreement on water in the contentious Snake Valley area along the central borders of both states has hit snags in each place that have derailed those efforts until at least 2011.

The biggest speed bump was the recent Nevada Supreme Court decision against the Southern Nevada Water Authority which throws into question 34 of its applications to use aquifers, submitted to the state and initially approved there. A lower court will return to consideration of the matter, which could affect thousands of other applications as well.

Until that is resolved, Utah officials said in March, little on the Snake Valley aquifer situation is likely to change.

The proposed deal also has become highly controversial within Utah.

[see Salt Lake (UT) Tribune, March 18]

The Idaho supreme Court on March 18 unanimously ruled against a water right claim in the SRBA sought by Bruce and Jared Bedke, even concluding that their argument was frivolous.

The case has been long-running in the SRBA, however, and marks some clear distinctions about the meaning of water diversion and how it applies to Idaho constitutional water law.

The Bedkes, who have operated ranches in Cassia County, for many decades use water from the city of Oakley (for which they paid the city). That ended in 1991 when Oakley capped the line and offered a different plan for water delivery. The Bedkes declined the offer, dropping payment for one of two city water rights while continuing payment for the other, 45-13792.

When in September 2004 the Idaho Department of Water Resources developed its director’s report for the water basin the area (Basin 45), it recommended the Bedke rights not be allowed. The Bedkes objected, in effect claiming that some of the city water water in effect theirs – and bringing the city of Oakley into the legal case.

In December 2006, a special master’s report sided with the city. After a string of further developments, the Bedkes issued a challenge to the report in February 2008. A month later, SRBA Judge John Melanson rejected their claims and upheld the master.

The master’s report said that “the Bedkes did not divert the water from its sources. Remember, the Bedkes did not claim the City‘s pipeline as the source – they claimed ‘spring’ as the source for each claim. The City diverted the water and the Bedkes are merely ‘piggy backing’ their claim on another‘s diversion works. The inevitable conclusion is that the Bedkes cannot lawfully appropriate the water from the springs by claiming the City‘s diversion works as their point of diversion and the City‘s pipeline as their point of rediversion. While the Bedkes may have had the requisite intent to apply the water to a beneficial use, they failed to prove they diverted water from [the Springs]. The City diverted the water flowing in its pipeline for a public use and the Bedkes are no more than ‘customers’ of the City when they draw water from the pipeline to water their livestock.”

The Supreme Court, in agreeing with the master and the SRBA court, cited that passage at length. They also cited as “worthy of being repeated” a Melanson comment on the worthiness of the Bedke claim:

“The water rights claimed by the Bedkes are based on water historically diverted by the City and delivered though its system to customers within its service area, including Bedkes. Although Bedkes, like any other municipal customer, are the ‘end users’ of the water, such a municipal customer does not develop an interest in the right. The purpose of use of a municipal right is to deliver water to customers within the service area. The City was using its rights consistent with that purpose of use. The only factor that changed was that Bedkes eventually stopped paying for the water service and the City did not immediately suspend their service. Nonetheless, Bedkes were always using the City‘s water pursuant to its water right. Bedkes presented no facts to establish that they diverted the water or contracted with the City to use its delivery system only. Further, Bedkes cite no legal theory or authority to establish a right by operation of law, such as prescriptive easement. Under Bedkes‘ argument, every municipal water user who historically used municipal water prior to the mandatory permit requirements could claim a beneficial use claim junior to the municipality delivering the water. This argument ignores the purpose of municipal rights and ultimately puts the City in the position of having to defend against frivolous claims.”

The Supreme Court said, “the Bedkes‘ pursuit of their claims has been frivolous at every stage of these proceedings, and we therefore award the City attorney fees on appeal.”

[The decision is available on line.]

Oregon Governor Ted Kulongoski on March 17 issued Executive Order No. 10-03, determining a state of drought emergency in Klamath County as well as all bordering counties which includes Jackson, Douglas, Lane, Deschutes and Lake counties. This declaration provides the state flexible water management strategies to assist irrigators, municipalities and other water users, not generally available under Oregon law.

Governor Kulongoski also wrote to U.S. Secretary of Agriculture Tom Vilsack to request a federal natural resource disaster determination. Such a determination would provide eligible farmers and ranchers with access to two other federal financial assistance programs, in addition to three federal programs that are already available.

“The water situation presents a real threat of economic loss to those who live and work in the Klamath Basin – and the state is going to do everything in its power to help,” said Governor Kulongoski. “By issuing a state declaration and requesting a federal disaster determination, we can begin to work on emergency water strategies now while the Federal government begins the required economic assessment of the impacts.”

The Governor issued the order following a community meeting he held in the Klamath Basin last week on the water situation and after receiving a request for a drought declaration from the Klamath County Board of Commissioners. It comes as the state waits for the Federal government to determine how much surface water will be available throughout the irrigation season without harming federally-protected endangered species. The determination is expected to be made soon.

Most notably, the Executive Order means that Klamath Basin irrigators and other water users can begin to work with the Water Resources Department to apply for temporary emergency permits that are valid during the length of the declared drought. In general, these permits allow water users to use supplemental ground water sources in lieu of their surface water rights and for emergency transfers of water from one parcel of land to another. [from the office of the governor, http://governor.oregon.gov/Gov/P2010/press_031710.shtml]

A majority of farmers across a region of Australia which have received so little water in the last few years that they’re giving up agriculture and selling off their water rights.

The Australian Broadcasting Corporation is reporting that a majority of farmers in the Campaspe region, in Victoria, are selling their water rights to the government. the immediate trigger for the action is the need to upgrade water transmission facilities, which may be costly, and could become costlier per water user with the decline numbers. [see Australian Broadcasting Corporation, March 14, http://www.abc.net.au/news/stories/2010/03/16/2847258.htm]