Ridenbaugh Press/Water Rights

Hawaii’s Commission on Water Resource Management on May 25 ordered Hawaiian Commercial & Sugar, the last sugar plantation in the island, to give up water rights to another large chunk of the water flow it has relied on.

The move was a compromise, however, leaving the company with permission to continue to use a number of stream flows. In all, 13 stream flow uses were left unchanged. Some variations between wet and dry seasons also were provided for.

And a group of native Hawaiians, who have said the flows to the plantation generally have been disruptive to native traditions, said they planned to challenge it.

Reshuffling at the Idaho Department of Water Resources continues.
In the wake of the retirement of Don Shaff, who led the IDWR adjudication bureau (as it still is called on the departmental website), the bureau was downgraded to section status.

Carter Fritschle, who has been manager of the technical section, was named to lead it.

The IDWR, like most other Idaho state agencies, has been hard-hit by state revenue shortfalls, and many job positions which existed a year ago haven’t been filled.

Snake River Basin Adjudication Judge Eric Wildman on May 25 granted a request from the Idaho Department of Water Resources for interim administration of water rights in the Lemhi County area in Basin 75, with some exceptions.

That followed a May 21 grant of inteirm administration in Basin 73.
The department’s request didn’t come without objection. Basin 75 has been divided into five sub-districts marked as A through E, and on May 12 a number of water users in area A and in area D, near and drawing water from Carmen Creek, filed objections. Other users filed in support of the state’s request. That has to do, the judge noted, with a dispute between two groups of water users in the area (the “Burns Group” and the “Fols Group”).

Wildman noted that the state argued interim administration “is reasonably necessary because an efficient means of
administering water rights from ground water sources and some surface water sources in IDWR Basin 75 does not exist and interim administration is reasonably necessary to protect senior water rights. In addition, the State of Idaho argues that interim administration is necessary for administration of the Wild & Scenic River Act Claims . . .”

The judge allowed for interim administration in the three uncontested areas without much comment other than that it appeared to be needed.

The areas in conflict were another matter. His description of the conflict between the Burns and Fols group, which evolved from a single water right ownership, outlined the difficulty of settlement in the area

Water rights leaked into the upcoming Senate action on confirming a new member of the Supreme Court, when Geoegia Senator Johnny Isakson on May 25 interviewed high court nominee Elena Kagan.

The subject is of big concern in Georgia, where a court case has resulted in a federal court ruling that the Peach State has been using too much water, and much of the water used by the metro Atlanta area must instead be allowed to head downstream to Alabama and Florida. Negotiations over the matter, including many talks between the three states’ governors, have not borne fruit.

WXIA-TV in Atlanta reported on May 26 that after asking a question on the Second Amendment, Isakson said, “I wanted to make sure I had a good understanding of her approach, her feelings, about water rights and water issues. . . . I told her, I said we’re negotiating. We’re hoping our governors will come together and reach a compact. But if they don’t, it’s inevitable, at some time, because of the issue, that it’s going to get to the United States Supreme Court.”

He continued, “She said that, in the end, you have to think of each consumer along the way” downstream. She expressed support for riparian rights, Isakson said, where “you have the right to the quiet enjoyment of water that flows through your property, just as long as you don’t deny the right of the next property owner downstream.”

The Colorado Supreme Court on May 24 held that a regional water court erred in throwing out calculations by state water officials and engineers in a water augmentation effort.

The case – Upper Eagle Regional Water Authority v. Dick Wolfe, State Engineer for the State of Colorado – involved participants including the Eagle County Board of Commissioners; Climax Molybdenum Company; the city and county of Denver, through its Board of Water Commissioners; Town of Gypsum; Lake Creek Metropolitan District; Grand Valley Water Users Association; Orchard Mesa Irrigation District; and the Ute Water Conservancy District.

The Supreme Court summarized, “The water court dismissed the State and Division Engineers’ and the Colorado Water Conservation Board’s petitions seeking to invoke the retained jurisdiction provisions of two augmentation plan decrees held by the Upper Eagle Regional Water Authority. The Colorado Supreme Court reviews the water court’s judgments of dismissal and accompanying questions involving the water court’s construction and implementation of the augmentation plan retained jurisdiction provision, section 37-92-304(6), C.R.S. (2009), of the Water Right Determination and Administration Act of 1969.

“The supreme court holds that the water court erred in dismissing the Engineers’ and the CWCB’s petitions in both of these cases. The petitions allege sufficient facts which, if proved, meet the petitioners’ burden of going forward to show that injury has occurred or is likely to occur, based on operational experience involving the actual mix of out-of-priority diversions and consumptive depletions covered by the
augmentation plans. Reviewing the petitions, the water court should have conducted additional proceedings in both of these cases pursuant to section 37-92-304(6).

“The Authority argues that water court retained jurisdiction under section 37-92-304(6) can be invoked to remedy only actual injury to a decreed water right. The supreme court disagrees, holding that the plain language of section 37-92-304(6) directs the water court’s use of retained jurisdiction “as is necessary or desirable to preclude or remedy any such injury,” and the water court should extend the period of retained jurisdiction for such time as “the nonoccurrence of injury shall not have been conclusively established.”

In its spring water news publication, the California Water Board summarized water transfers around the state. It reported:

From December 2009 through May 2010, the State Water Board received eleven petitions for temporary change to authorize the temporary (one year or less) transfer of water, three of which have since been withdrawn. On May 5, the Division issued Order 2010­0017­DWR, approving a change in place of use to deliver 10,000 acre­ feet of State Water Project (SWP) water (originally intended for Tulare Lake Basin Water Storage District and Empire West Side Irrigation District) to Westlands Water District. The remaining active petitions for temporary change are in the public notice phase. These notices are available for viewing online.

DWR has also petitioned for a long-­term transfer involving parties and terms similar to Order 2010­0017­-DWR, with a transfer period of 2011–2027. The Division expects to issue the public notice for the petition for long­-term transfer by the end of May. Last year’s consolidated place of use action for the Central Valley Project and SWP was approved by State Water Board Order 2009­-0033. No new transfers will be initiated pursuant to Order 2009­0033, and all but one have been completed. The one ongoing transfer, an exchange between Arvin­-Edison Water Storage District and the Metropolitan Water District of Southern California, was started in October 2009 and should be completed by May 2010.

An in-stream water rights policy covering the five California counties north of the Bay Area appears to have come together just ahead of what might have been intense legal wrangling and other conflict.

On May 4 the State Water Board adopted a policy for water quality control titled “Policy for Maintaining Instream Flows in Northern California Coastal Streams”. The policy contains principles and guidelines for maintaining instream flows for the purposes of water right administration. The geographic scope of the policy encompasses coastal streams from the Mattole River to San Francisco and coastal streams entering northern San Pablo Bay and extends to five counties: Marin, Sonoma, and portions of Napa, Mendocino, and Humboldt Counties.

The policy must now be approved by the State Office of Administrative Law.

The full policy as adopted is available online.

The action may free up processing of hundreds of water rights applications in the region, which have been put on hold pending development of a policy.

It almost didn’t happen. Work on the policy goes back to 2007, and drafts have circulated since early the following year, but disputes were frequent. A draft circulated in February this year appeared close and was scheduled for action in April, but a number of environmental groups said they thought was too vague. And the legislators from the area circulated a letter saying they were “disappointed that the draft policy has ignored many of the policy suggestions brought forth by stakeholders.”

On April 27, one more attempt at a joint agreement was made in a session closed off from the public but including most of the stakeholders. It emerged with a general agreement.

The next North Coast Regional Board meeting is slated for June 10.

[see also North Bay Business Journal, May 24]

The Washington Department of Ecology and SC Aggregate Inc. have finalized a water right transfer and trust water right agreement that paves the way for groundwater users to purchase senior water-right shares in the Ellensburg area.

Some 166-acre-feet of water owned by SC Aggregate that once served the Reecer Creek Golf Course has been transferred into the state’s Trust Water Right Program to be made available to willing buyers through a water banking program.

“While mitigation credits are not required in the Ellensburg area, this trust water right gives residential water users and developers an opportunity to gain the security of coverage under very old water rights,” explained Ken Slattery, Ecology’s water resources program manager in Olympia.

When they acquire a senior water right, property owners add value to their real estate and protect themselves from curtailment in low water years. Those relying on permit-exempt groundwater wells put themselves at risk in a basin where water has been rationed to some users four out of the past 10 years.

To see the description of the Lower Kittitas Water Exchange, the SC Aggregate-Ecology trust water agreement, and the Certificate of Trust Water Right, go to the Lower Kittitas Water Exchange web page.

“For the first time, landowners have the ability to plan knowing that they can now obtain an actual groundwater permit for their domestic water requirements and avoid the problems and risks associated with exempt wells,” said Steve Lathrop, a local Ellensburg attorney who represents SC Aggregate in its mitigation program.

A map describing the suitability of the SC Aggregate water right – also known as the Reecer Creek Golf Course right – to mitigate new groundwater withdrawals within the Ellensburg area can be viewed at Ecology’s website.

In addition to the information on Ecology’s website, information on the SC Aggregate mitigation program is available from Steve Lathrop by phone at (509) 925-5622 and by email.

The transfer of existing water rights to new uses is one tool being encouraged to address water concerns in the greater Yakima River Basin. In addition, the region is exploring additional storage, infrastructure improvements and conservation as other mechanisms for improving the overall water supply through the Yakima River Basin Water Enhancement Project (YRBWEP) -3 Workgroup.

[see Washington Department of Ecology, May 24]

The National Fish and Wildlife Foundation announced completion of the first purchase of water rights from a willing seller in Nevada as part of the Walker Basin Restoration Program. The acquired water rights will be used to begin restoring flows to Walker Lake, a unique desert lake at the terminus of the Walker River of Nevada-California whose fishery and ecosystem are threatened by insufficient freshwater inflows.

“This first acquisition represents an historic step in efforts to reverse Walker Lake’s decline,” said Jeff Trandahl, the Foundation’s Executive Director. “It sets a new precedent for securing water from willing sellers in the Basin, and it provides important economic benefits for local farmers and landowners, particularly during times of financial hardship.”

For many decades, significant water diversions to upstream farmlands and storage reservoirs have depleted flows in the Walker River and contributed to sustained reductions in Walker Lake’s size and elevation, with corresponding increases in salinity. The Lake’s decline was an important factor in Congress’ decision to establish the Desert Terminal Lakes (DTL) Program within the Bureau of Reclamation in 2002. The Program provides funding for a variety of efforts to increase inflows to Walker Lake and other at-risk natural desert terminal lakes in Nevada. The Walker Basin Restoration Program, administered by the Foundation, was established as part of the DTL Program in 2009 through legislation sponsored by Senate Majority Leader Harry Reid (D-Nevada) with the support of Senator John Ensign (R-Nevada). The Restoration Program features water acquisitions from willing sellers as a primary tool for increasing freshwater inflows to Walker Lake. Continue Reading »

Louisiana, traditionally a riparian water rights state, long has had some regulation of ground water but virtually none of surface water: If you could find a way to take some, without damaging endangered fish or wildlife and without interfering with navigation, you could do it.

That is changing. A string of attorney general’s opinions have declared that water in the state is a public asset and can’t be sold without some kind of permission. This month, new legislation sponsored by Representative Jim Morris, R-Oil City, calls for some regulation of surface water withdrawals; it is slated for House floor action soon.

The Shreveport Times noted that “while the bill is not industry-specific, it falls in line with the oil and gas industry’s use in recent months of the Red River as source for hydraulic fracturing of Haynesville Shale wells.”

And it quoted Lieutenant Governor Scott Angelle, who also chairs the state Ground Water Commission: “The goal of this bill is to facilitate the orderly use of the state’s abundant surface water resources so as to avoid a negative impact on our groundwater resources . . . Much progress has been made over the year to transition from groundwater to the use of surface water; however, these various opinions have caused folks to pause about their authority of the use of the state’s surface water resources.”

[see the Shreveport (LA) Times, May 19]