Ridenbaugh Press/Water Rights

A Canadian group is arguing that the North American Free Trade Agreement is the central problem behind a dispute over water and timber rights that could cost Canadian governments and businesses considerable money in the wake of a major lawsuit.

The group Council of Canadians offered this analysis on August 27:

The provinces and territories should not be held financially responsible for costly NAFTA lawsuits or expensive out-of-court settlements, as suggested by Prime Minister Harper yesterday, says the Council of Canadians.

The social justice advocacy group is also calling on the federal government to make the terms of the settlement with AbitibiBowater public because the settlement may have included payment for water and timber rights the company does not own.
“Canadians are rightfully angry that the Harper government has wasted $130-million of their money on a NAFTA settlement with AbitibiBowater. But to blame Newfoundland Premier Danny Williams, as the prime minister is trying to do, is a deflection from the real problem of letting companies sue the federal government,” says Maude Barlow, national chairperson of the Council of Canadians.

The $130-million NAFTA settlement with AbitibiBowater is the largest since the trade agreement came into force in 1994. By law, the federal government is bound to defend NAFTA challenges to provincial or territorial policy, and to cover the associated costs. Using the public anger at the size of the payout, Prime Minister Harper said yesterday he will be establishing a legal mechanism to force the provinces and territories to pay for future trade-related settlements.
“Danny Williams was absolutely right and within his provincial powers to take back the water, timber and land of a company that was giving up on Newfoundland,” says Barlow. “There’s no proof that giving companies the power to sue countries in trade deals actually attracts foreign investment. The high costs could be avoided by pulling the Chapter 11 investor-dispute process out of NAFTA.”

The Council of Canadians is concerned that the settlement included payment for water rights the company doesn’t have. If the terms of the deal state that the $130-million will broadly satisfy the value of AbitibiBowater’s NAFTA claim, which included a claim to water and timber rights lent to the company by the Newfoundland government nearly 100 years ago, the Harper government has created a de facto private property right to water where none exists in Canadian law.
“There are vast constitutional consequences in the AbitibiBowater settlement if in fact Harper is compensating a private company for water rights as if that company owned the land and water to begin with because it doesn’t,” says Steven Shrybman, trade lawyer and Council of Canadians board member.

The settlement must be court-approved and will be discussed at a hearing Sept. 14 in U.S. Bankruptcy Court in Delaware, where the company is incorporated. The Council of Canadians is calling for a public airing of the terms of the AbitibiBowater settlement, which would then inform possible constitutional issues.

The Nebraska Supreme Court on August 27 sharply rejected a complaint by the Central Nebraska Public Power and Irrigation District, located at Holdrege, against the North Platte Natural Resources District, which has been drawing down Lake McConaughy.

The court said in Central Nebraska Public Power and Irrigation District v. North Platte Natural Resources District that, although the power and irrigation district owns the lake, it does not have standing to sue.

In its conclusion, the court said that “The primary issue in this case is whether the appellant, a power and irrigation district that appropriates and stores surface water for the benefit of public users, may bring a judicial review proceeding under the Administrative Procedure Act to challenge a natural resources district’s ground water appropriation. Because we agree with the district court that the appellant lacks standing to do so, we affirm the court’s dismissal of the appellant’s complaint.”

It described the background:

“In 2008, the North Platte Natural Resources District held a public hearing, pursuant to the Nebraska Ground Water Management and Protection Act, regarding proposed rules and regulations for the Pumpkin Creek Basin Groundwater Management Sub-Area. The NRD proposed to lower the ground water allocation from 14 inches per acre to 12 inches per acre. Two people objected at the hearing: a representative of the Spear T Ranch, Inc., a Pumpkin Creek surface water irrigator, and the public relations manager of The Central Nebraska Public Power and Irrigation District. Both objectors argued, generally, that a reduction to 12 inches per acre was insufficient to correct a significant decrease in surface water streamflow in the Pumpkin Creek basin. But the NRD decided to implement its proposed reduction. Central filed a petition for judicial review pursuant to the APA. Central alleged that it owns and operates a system of reservoirs, canals, and laterals used for several purposes, including irrigation, recreation, environmental protection, and powerplant cooling. Among other things, Central operates Lake McConaughy, a reservoir located on the North Platte River, and owns and operates hydroelectric facilities that use the waters of Lake McConaughy and the North Platte River. Central also stores and releases water to the Nebraska Public Power District for use in powerplant cooling, hydroelectric power generation, and the public power district’s reservoirs and fishery. And Central alleged several other purposes for which the water it stores and releases is used, including streamflow and aquifer recharge. Central alleged that ground water depletions in the NRD’s jurisdiction had caused streamflow into Lake McConaughy to decline, substantially reducing the lake’s level. Specifically, Central alleged that the NRD’s ground water withdrawals were causing direct and substantial depletions of Pumpkin Creek, a tributary of the North Platte River—water which would, Central alleged, have been available for storage in Lake McConaughy. Central concluded that the NRD’s ground water allocation was unreasonable and was causing harm to it and to the water uses it had described.”

The key issue, the court said, was the irrigation district’s lack of a water right specifically impacted:

“We have addressed standing in the specific context of
water law several times in recent years. To begin with, in
Metropolitan Utilities Dist. v. Twin Platte NRD, we held that a natural resources district did not have standing to appeal from an order of the then Department of Water Resources removing it as an objector to an application to withdraw water from the Platte River. We noted that the district did not have a water right that would be adversely affected by the application and concluded that “the fact that the water rights of the constituents of a natural resources district may be affected by an application to appropriate waters does not confer standing upon such natural resources district to object to the application.” Shortly thereafter, in Ponderosa Ridge LLC v. Banner
County, we held that neither a county nor a natural resources district had standing to object to an application to transfer ground water that, according to the objectors, could have resulted in wastewater pollution.”

Generally: “The shortcoming in Central’s petition is its failure to specifically allege how it has suffered an injury in fact. In this case, Central has alleged that it has water use interests (although its water uses primarily benefit others). And Central has alleged injuries that have occurred to its constituents in its jurisdiction from the use of ground water in the NRD’s jurisdiction. But it has not connected the two. Specifically, Central has not alleged how its particular water use interests, to the extent it has any, have been injured by the NRD.”

California’s Little Hoover Commission on August 26 issued recommendations calling for a new approach to managing California’s water supply.

The Commission released its report, Managing for Change: Modernizing California’s Water Governance, urging the governor and the Legislature to restructure the state’s water administration to better coordinate key supply management and planning roles, and separate them from the operation of the State Water Project.

The Commission concluded that the state’s current water management and planning structure, in place since 1969, is obsolete and leaves the state ill-prepared to handle unpredictable precipitation, growing population and the need to better balance environmental needs with urban and agricultural demand.

California’s current Department of Water Resources was created in 1956 to launch the State Water Project. A half century later, the project is complete. Today, the department’s mission of operating the project is at odds with its separate mission of managing existing water resources and planning for future needs. In the intervening decades, environmental laws and court rulings have added requirements to ensure that sufficient water is devoted to protect the environment and support endangered species. When water supplies are static, or reduced by drought, the result is conflict, too often settled in court, out of the hands of California’s leaders.

“The real issue is the reallocation of the resource in a fundamentally different way than the system is capable of handling,” Little Hoover Commission Chairman Daniel Hancock said.

The Commission recommends a reorganization that would create a new Department of Water Management as the state’s main organization for managing its water resources and planning for future needs, implementing strategies to expand supply and reduce demand through water conservation and efficiency programs. The Commission recommends moving the State Water Project into a separate, independent state-owned water authority. This would create an organization designed specifically to operate the project.

To bolster supply management, the new department would integrate water rights administration and enforcement to improve accounting for how water is used and to reduce illegal or unauthorized water use. As part of the reorganization, the Division of Water Rights, now part of the State Water Resources Control Board, would be relocated to
the new Department of Water Management, reuniting two functions that were separated to accommodate the planning and construction of the State Water Project. The Department of
Fish and Game’s instream flow analysis unit would move to the new Department of Water Management to enhance the state’s ability to factor in water needs for aquatic habitat and
wildlife to supply estimates and water rights decisions.

The Commission used the 2009 water reform legislation as a policy foundation for its governance recommendations, with the aim of creating a structure that could ensure that the
reforms are implemented to reach their full potential. The 2009 water legislation revived the State Water Commission, whose members have now been appointed. Though the 2009 water bond proposal has been delayed, this newly revived commission could and should be put to use to oversee the investment and results of the $20 billion in already authorized water resources bonds, whether the bond money is spent through the Natural Resources Agency or by other agencies. Specifically, the Commission recommends that the state:

Improve transparency, accountability and efficiency for distinct water functions within the current Department of Water Resources. The governor and Legislature should integrate water rights administration and accounting with water use planning and management functions, and separate these functions from water supply and delivery operations. These functions should be organized into a new Department of Water Management.

Provide strong oversight of all natural resources bond spending and ensure that money is allocated strategically. The California Water Commission should provide oversight of all natural resources bond expenditures, including current bond programs and future voter-authorized bonds in the Natural Resources Agency as well resource bond-funded programs in other agencies.

Improve transparency, efficiency and accountability of the State Water Project. The governor and Legislature should create a separate, independent publicly owned entity, the California Water Authority, to operate the State Water Project and other current functions related to or influenced by the project’s operations. The new entity should work to further integrate its operations with those of the federal Central Valley Project, with the ultimate goal of merging the two systems under state ownership.

The Commission most recently looked at water governance in its January 2009 study, Clearer Structure, Cleaner Water: Improving Performance and Outcomes at the State Water Boards, and its November 2005 study, Still Imperiled, Still Important, a review of the CALFED Bay-Delta Program.

The Little Hoover Commission is a bipartisan and independent state agency charged with recommending ways to increase the efficiency and effectiveness of state programs. The Commission’s recommendations are sent to the governor and the Legislature. To obtain a copy of the report, Managing for Change: Modernizing California’s Water Governance, contact the Commission or visit its Web site: www.lhc.ca.gov.

Senator Byron Dorgan, D-ND, the chair of the U.S. Senate panel that funds water projects in the United States, is calling for four party international talks to resolve long standing disputes between the U.S. and Canada over water projects and flooding issues. Dorgan proposed that the talks begin in late September and be held in Washington, D.C.

In a letter to the U.S. Ambassador to Canada David Jacobson and Canadian Ambassador to the United States Gary Doer, Dorgan said the talks should include representatives of the United States and Canada, as well as officials from the state of North Dakota and the province of Manitoba. Issues involving the threat of an uncontrolled water spill from Devils Lake; the Northwest Area Water Supply (NAWS) rural water project in northwestern North Dakota; and the dispute over a dike Canada erected between the U.S. and Canada near Pembina, North Dakota should be the focus of the talks, he said.

Dorgan heads the Senate Energy and Water Appropriations Subcommittee. He said there is “too much at stake in both countries for the disputes to continue or to delay actions that can be protective and helpful to the interests of both countries.”

Dorgan said he has had ongoing discussions with both the U.S. Ambassador to Canada and with the Canadian Ambassador to the U.S. He has also spoken with Secretary of State Hillary Clinton and Canadian Prime Minister Stephen Harper about some of the water disputes with Canada.

“The increasing potential that rising flood waters in Devils Lake will flood and spill uncontrolled into the Sheyenne River should be of real concern to both countries, because an uncontrolled spill will cause serious problems in both eastern North Dakota and Canada,” Dorgan said.

“The news that the NAWS rural water project in northwestern North Dakota could now be delayed 10 years or more as a result of court challenges from Canada is a serious problem that affects tens of thousands of North Dakotans,” Dorgan said.

“It is imperative that both countries make a serious effort soon to find solutions to these and other long-standing water issues, such as opening the Canadian border dike near Pembina, which causes flooding on the North Dakota side, to natural drainage.”

The Texas Farm Bureau in August entered the discussion about who owns the water under Texas – and the right to it. In a widely-distributed opinion piece, the organization said:

In a recent blog post, Texas Farm Bureau Publications Director Mike Barnett asks “who owns Texas water rights?” Is it the groundwater conservation districts (GCD) or the property owner? There does not appear to be one clear-cut answer, but Barnett does weigh the options.

Barnett points out that the current system is confusing. On one hand, Texas law says that the water beneath your land belongs to you. However, groundwater districts control it. The answer to owns it will hopefully be decided this legislative session, as it is a topic that is set to be discussed. Additionally, the Texas Supreme Court is hearing cases that could define the rights of Texas property owners in regard to groundwater.

“Current Texas law recognizes the landowners’ rights to water beneath their property. It also gives groundwater districts the authority to regulate it,” says Barnett. “There are two schools of thought concerning groundwater as a property right in Texas.” The first school of thought says that the groundwater does not belong to the property owner until it is in their possession. This means that GCDs have control over who can drill a well or pump groundwater. The second school of thought gives the land owner rights over the water under their land, protecting the water from being “taken” by GCDs.

Texas Farm Bureau’s policy currently supports the second opinion: “The reasoning is this: Groundwater is part of the surface estate of the property,” explains Barnett. “The owner of the surface estate has a right to the groundwater, just like he has the right to sand, gravel or limestone that is part of the surface estate.”

Read all of Mike Barnett’s blog post on Texas water rights by visiting the Texas Ag Talks blog.

The Washington Department of Ecology is seeking the public’s help in finding ways to improve its management of water resources in Washington state for the benefit of current and future water users.

“The era of cheap, abundant water supplies is over,” said Ecology Director Ted Sturdevant. “With population growth, the need for economic development, the challenges of restoring fish runs, and coping with climate change, unless we change the way we manage our water resources, there won’t be enough water to meet essential needs. Washington’s future quality of life depends on water, and if we don’t make some changes, that quality of life will suffer.”

To engage the public in a discussion of the issues surrounding water supply management, Ecology will launch the Water Smart Washington Online Forum on Monday, Aug. 30, 2010. The website will go live before noon.

Ecology is considering significant changes in how the Water Resources Program is operated and funded. The program’s ongoing mission is to work with Washington communities in support of sustainable water resources management to meet the present and future water needs of people and the natural environment. Efforts to fulfill the mission have been handicapped in recent years by inconsistent funding resulting from dependence on the State General Fund and the need to update 19th century-based water laws which are inadequate to meet 21st Century challenges.

Ecology is considering ways to make the Water Resources Program more effective and efficient such as: Continue Reading »

The running battle between the city of Las Cruces as the nearby Moongate Water Company accelerated in August as the city and company traded shots in their contest for limited area water supplies.

Both of them have been drilling to the Jornada Bolson aquifer, which has seen some lower levels in recent years. Each blames the other
for depletion.

The city has considered trying to take control of the aquifer under eminent domain powers.

On August 23, the company released this:

Moongate is a public utility providing safe clean water at reasonable rates to about 14,000 people. Together with our customers we have built this system from scratch. We have listened to our customers and from the beginning in 1971 met our customers’ needs and the growth in our area. Ninety percent of our customers are outside of the City and we share their concern of takeover by a government in which they have no vote.

The mistaken Mayor has and continues to make false statements:

1. “Negotiations have been going on 5 years” – Moongate has never offered itself for sale to the City – The City Council has never authorized any amount of payment – No member of the current Council has ever met with and negotiated with Moongate.
2. “The City can take water from its Mesilla Valley water rights and ship it to people in the Jornada” – The City has for the past several years been pumping almost all of its approximately 22,000 acre feet of valley water rights – the City in its application for Jornada wells to the State Engineer claimed that it needed the Jornada wells because it was using almost all its valley water rights and there were no more water rights to be granted in the valley.
3. “Moongate is a threat to the Jornada Basin” – The City is pumping approximately twice times as much water from the Jornada as Moongate during the last 3 years – with its valley water rights virtually exhausted, the City has been serving the growth in its water needs from the Jornada since 2002 – the City is exporting water from the Jornada basin to areas outside the basin.

The New Mexico State Engineer has the responsibility and the authority for protecting the Jornada Basin – in 1996, the City sought to export unlimited amounts of water from the Jornada basin to supplement its valley water rights – Moongate protested and the City was limited in the amounts that it could export from the Jornada basin.

The Mayor’s cries that the basin will run dry, the basin will run dry, are like Chicken Little saying the sky is falling. When the City sought well permits from the State Engineer in the Jornada basin, the City’s expert hydrologist stated that there were 12,000,000 (12 Million) acre feet of fresh water in the Jornada basin and 8,000,000 (8 Million) of those acre feet could be pumped and used. The State Engineer and City’s experts acknowledge that the amount expected to be used now is less than 10,000 acre feet per year and under all water rights existing, about 22,000 acre feet per year. At today’s rate of pumping of 10,000 acre feet, 8,000,000 (8 Million) acre feet would last for 800 years and that is without calculating the approximately 5,000 acre feet per year basin recharge. At double that rate of pumping, which would allow for all of the existing water rights, the basin would be expected to last over 400 years.

What’s really happening is the City is trying to slow or stop Moongate’s growth by frightening Moongate’s customers and potential customers. The City has shown that it is unwilling to make the financial and legal commitments that are part of a real condemnation. Instead, Mayor Miyagishima and Councillor Conner talk about the resolution not as a real condemnation but as a negotiation method, a “negotiation tool”, a method of forcing Moongate to sit down and negotiate.

The Mayor and Councillor obviously see the resolution as putting a gun to Moongate’s head to surrender to the City’s terms. It appears that the City Mayor and Councillors are testing the water to see if this would benefit their campaigns in the upcoming city election next year.

On August 20 the Mt. Shasta Community Rights Project filed an elections complaint to restore Measure A to the 2010 general election ballot. Siskiyou County Clerk Colleen Setzer is denying Mt. Shasta voters the right to vote on “Measure A”, which was stripped from the city’s ballot earlier this week.

The Measure, which would prohibit outside corporations from bulk water extraction and corporate cloud seeding, is the first ordinance of its kind in California because it is designed to assert the rights of residents over the rights of corporations.

Through California’s Initiative Process, citizens have the right to place matters on the ballot. Proponents in Mt. Shasta gathered the necessary number of voters’ signatures, and they worked closely with County Clerk Setzer throughout the process of filing to ensure that the initiative (Measure A) was successfully placed on the November ballot.

But in a surprise move, Setzer threw Measure A off the ballot earlier this week, claiming it had been filed in the wrong office and also citing a one sentence difference between the initiative filed with the City and the version petitioners signed.

However, the previous week the City Council had already voted unanimously to leave Measure A on the ballot, because the error did not change the meaning and intent of the initiative.

“Citizens are being denied their fundamental and constitutional right to make laws and vote,” said Shannon Biggs, California Community Rights Director for the advocacy group, Global Exchange. “Even more fundamentally, this Ordinance is about who decides—residents or corporations?”

“Our community deserves to know the facts,” states Jennifer Mathews, of the Community Rights Project. “We filed an elections complaint because our only other option was to allow citizens’ efforts to be undermined. Instead, we are choosing to stand up for residents’ right to vote on issues affecting the place that we live.”

Proponents dispute the charge of incorrectly filing with the City Clerk. They argue that the city is the correct jurisdiction for filing a municipal initiative. “We have followed correct procedure as instructed by the City and County Clerks,” said Molly Brown, the official proponent for Measure A. “The City of Mount Shasta accepted our initial filing, petitions were verified and the City Council voted unanimously to place it on the November 2 ballot.”

The elections complaint contends that Siskiyou County Clerk Setzer acted improperly and illegally in taking Measure A off the ballot. “This issue goes straight to the heart of our right to direct democracy through the initiative process,” states Ami Marcus, also of the Community Rights Project. “Setzer lacks the authority to make this decision. We want Measure A back on the November ballot.”

One of the key native Alaskan corporations has begun a process leading to large-scale export of some of the Alaskan water under its control.

The Aleut Corporation said in August that it envisions exporting as much as a half-million gallons daily three freshwater lakes it controls on Adak Island. Adak is described in Wikipedia as “near the western extent of the Andreanof Islands group of the Aleutian Islands in Alaska. Alaska’s southernmost town, Adak, is located on the island.”

The demand for the water is thought to be mainly in the form of bottled drinking water aimed at China and India.

The three lakes involved are Lake Bonnie Rose, Lake De Marie and Lake Betty.

Other water shipping proposals in Alaska, which unlike most states has far more water than residents seek to use, are making their way through the process as well.

One of those is from the Anchorage-based Aqueous Northern Holdings LLC, which July 19 asked the Alaska Department of Natural Resources for water rights at four Southeast locations.

Also, Texas-based S2C Global Systems Inc. said on July 7 it has ambitious plans to develop a “water hub” in India.

From its release:

S2C Global Systems, Inc. (OTCBB: STWG) today announced that within 6 to 8 months the company expects to start distributing fresh water from its first “World Water Hub” located on the west coast of India.

For security reasons the port will not be disclosed, however this first hub will include a berth for a Suezmax vessel (156,000 cubic meters/41Million USG), an offloading system to a dedicated tank farm and a distribution complex for packaged water. Within 18 months after that we will be able to switch to a very large class vessel (302,833 cubic meters/80 Million USG), as both the ship and the berth for her will be completed within this time frame. Contracts for the distribution hub and ships are being finalized.

The company will be able to sell from its hub bulk fresh water by way of smaller ships that can deliver to shallower ports, like Umm Qasr in Iraq (located within 4 days of India’s west coast). S2C will also sell fresh water in 20-foot containers with flexi-tanks (4623 USG) suitable for pharmaceutical/high tech manufacturing and packaged water (18.9 and 10L) for the consumer markets anywhere containers are delivered in south and west Asia from India.

India itself provides a particularly significant growth market for the packaged waters with a current population of 1.15 billion people, an emerging middle class and an increasing clean water shortage.

Our Alaskan mountain water is so pure it requires no treatment except to remove organics that might be present through the natural cycle. During its 30 day voyage from Alaska to the Arabian Sea we will protect the water using an “Ozonating” system in the ships holds.

Due to dry weather in July and record-low river levels in the northern half of British Columbia, Environment Minister Barry Penner said on August 20 that the Peace region has been reclassified to Drought Level 4 (extremely dry conditions).

A high-pressure ridge over the province brought dry, above-average, and in some cases record-setting temperatures for most areas of British Columbia during the past week. River levels in the North continue to fall and in many cases are at or near historic lows. Given the continuation of dry conditions and record-low river levels in the North, Penner is asking British Columbians to conserve water to protect water sources and help manage water demands.

In northern B.C., river levels are well below normal. In the Peace region, most tributaries are near or at record minimum low flows for this time of year. The Moberly, Pine, Kiskatinaw, Halfway, Finlay, Ospika, Omineca, Mesilinka and Osilinka, and Nation rivers are extremely dry (near or below previously recorded low for the date). In the far Northeast, the Liard River has now also fallen to historic low flows. On the North Coast, the Skeena and Stikine rivers are below a 20-year return period low flow.

Flows along the mainstem of the Fraser River downstream of the confluence of the McGregor River are at 10-year return period low flows. In the Central Interior, the Cariboo region is also dry with the Quesnel and Horsefly rivers between 10- to 20-year return period low flows. In contrast, streams in the Chilcotin region are generally between median and five-year return period low flows.

In the Thompson River area, water levels on most streams are between median and five-year low flows, although the upper Salmon River at Falkland is now below normal. Similar conditions are present in the Similkameen and Okanagan region, with most streams between median and five-year return period low flows. Exceptions are Vaseux, Coldstream, and Mission creeks which are approaching 10-year return period low flows.

In the Kootenay and Columbia areas, streamflow conditions are generally slightly below normal for this time of year.

On Vancouver Island, most river levels on the north island are above average, and streams on the south island are normal for this time of year. On the South Coast mainland, river levels are at or above average for this time of year.

Given the continuation of dry conditions and record-low river levels in the north, the Peace region is now classified at Drought Level 4 (extremely dry conditions). The Skeena and Nass region will be maintained at Drought Level 3 (very dry conditions). These conditions are expected to persist throughout the summer unless above normal rainfall occurs.