Ridenbaugh Press/Water Rights

The Colorado Supreme Court on May 31 sided with a water court ruling that included some restrictions on what could be counted as irrigation companies’ water use from those sources based on the historical record.

That in turn provides some limitations on what water could be used for municipal purposes.

The manager of the entity most specifically affected, David Kaunisto of the East Cherry Creek Valley Water and Sanitation District, was quoted in the Denver Post as saying his organization remains “very comfortable” that United Water and Sanitation District still can provide the water it needs, even under the stricter terms.

From the Supreme Court’s decision:

In this appeal from a judgment of the District Court for Water Division No. 1, applicant-appellants, Farmers Reservoir and Irrigation Company (“FRICO”), Burlington Ditch, Reservoir and Land Company (“Burlington”), Henrylyn Irrigation District (“Henrylyn”) — collectively “Companies”– and the United Water and Sanitation District (“United”), and East Cherry Creek Valley Water and Sanitation District (“ECCV”) challenge the water court‘s decisions regarding historical consumptive use, the effect of prior decrees, the effect of new structures, the water court‘s one-fill rule analysis, and the impact of these determinations on appellants‘ rights to use the waters of the South Platte River.1 The Opposer-Appellants — parties who opposed the initial application but also take issue with the water court‘s decree include the City of Thornton (“Thornton”), the City of Englewood (“Englewood”), the City of Brighton

(“Brighton”), and the City and County of Denver (“Denver”). Opposer-Appellees include the State Engineer and Division Engineer for Water Division No. 1 (“State Engineer”), the City of Aurora (“Aurora”), the Central Colorado Water Conservancy District (“Central”), and Public Service Company of Colorado (“Public Service”d/b/a Xcel Energy). Because of the broad scope of the water court‘s determinations, the parties are not uniformly aligned, but rather have argued for their particular interests issue by issue.

Based upon the record in this change of water rights proceeding, we uphold the findings of fact, conclusions of law, judgment and decree of the water court, including these: in order to prevent an unlawful enlargement of the Burlington and FRICO water rights, the Companies‘ 1885 Burlington direct flow water right is limited to 200 cfs historically diverted and used for irrigation above Barr Lake; the 1885 Burlington storage water right is limited to annual average reservoir releases of 5,456 acre-feet historically used on lands under the Hudson and Burlington Extension laterals as they existed in 1909; seepage gains into the Beebe Canal, as well as water collected through the Barr Lake toe drains, cannot be counted towards the Companies‘ historical consumptive use under the 1885 Burlington and 1908 and 1909 FRICO water rights; historical releases from Barr Lake rather than operation of the “one-fill rule”constitute the proper measure of Companies‘ storage rights in this change of water rights proceeding; the water court‘s system-wide analysis of historical consumptive use is not barred by claim or issue preclusion due to the orders and decrees issued in Cases Nos. 54658 and 87CW107; the Metro Pumps are a heretofore undecreed point of diversion for which prior diversions cannot be given credit in calculating historical consumptive use; the Globeville Project is also a previously undecreed point of diversion, subject to the water court‘s imposition of terms and conditions to prevent injury to other water right holders; the water court‘s judgment and decree do not exceed the scope of its jurisdiction; and the decree contains appropriate conditions to prevent injury to other water rights resulting from the change of water rights.

Accordingly, we uphold the water court‘s judgment and decree. …

Based upon the record in this change of water rights proceeding, we uphold the findings of fact, conclusions of law and decree of the water court, including these: in order to prevent an unlawful enlargement of the Burlington and FRICO water rights, the Companies‘ 1885 Burlington direct flow water right is limited to 200 cfs historically diverted and used for irrigation above Barr Lake; the 1885 Burlington storage water right is limited to average annual reservoir releases of 5,456 acre-feet historically used on lands under the Hudson and Burlington Extension laterals as they existed in 1909; seepage gains into the Beebe Canal, as well as water collected through the Barr Lake toe drains, cannot be counted towards the Companies‘ historical consumptive use under the 1885 Burlington and 1908 and 1909 FRICO water rights; historical releases from Barr Lake rather than operation of the “one-fill rule” constitute the proper measure of Companies‘ storage rights in this change of water rights proceeding; the water court‘s system-wide analysis of historical consumptive use is not barred by claim or issue preclusion due to the orders and decrees issued in Cases Nos. 54658 and 87CW107; the Metro Pumps are a heretofore undecreed point of diversion for which prior diversions cannot be given credit in calculating historical consumptive use; the Globeville Project is also a previously undecreed point of diversion, subject to the water court‘s imposition of terms and conditions to prevent injury to other water right holders; the water court‘s judgment and decree do not exceed the scope of its jurisdiction; and the decree contains appropriate conditions to prevent injury to other water rights resulting from the change of water rights.

Debate is raging over this year’s major entry to Texas water law: Senate Bill 332, on groundwater ownership.

SB 332, by Sen. Troy Fraser (R-Horseshoe Bay) and Rep. Allan Ritter (R-Nederland), clarifies that groundwater below a landowner’s land is their real property, meaning it is subject to the same legal protections as other private property such as land.

The issue was a top priority this session for the Texas and Southwestern Cattle Raisers Association, said Joe Parker Jr., rancher and TSCRA president.

“Landowners have owned the groundwater under their property for more than 100 years, but our rights have recently been challenged,” said Parker. “SB 332 puts to rest any question of who owns the groundwater below a landowner’s property.”

SB 332 clarifies that landowners own the groundwater below their land as real property. The bill entitles landowners to drill for and produce the groundwater below their land without waste. It recognizes that this private property right may be regulated, like other private property rights, to protect and conserve groundwater, and it ensures fair and impartial regulation of a landowner’s rights in groundwater.

“We appreciate the hard work of Chairman Fraser, Chairman Ritter, and the rest of the Texas Legislature. We look forward to SB 332 becoming law,” Parker continued.

Environmental groups were not outright opposed to the measure but expressed some concerns.

The Lone Star Chapter of the Sierra Club said on May 24 that it “commends Rep. Ritter, the House Natural Resources Committee, and the Committee staff for their efforts to achieve a groundwater bill to balance the interests of landowners and the groundwater districts to which the state has entrusted the responsibility of managing our aquifers. It remains to be seen whether the proper balance has been struck. Candidly we are concerned that SB 332 raises more questions than it answers. Ultimately those questions may be answered in court.

“Among those questions are the following: does the bill enhance the ability of a landowner to claim a ‘taking’ of the value of private property by regulatory actions of a groundwater district, would such a claim result in a groundwater district having to compensate a property owner for ‘loss of value’ in the property, how would payment for such a claim or claims affect the financial viability of a district, what impact would a number of takings claims have on the willingness of districts to take strong action to protect groundwater resources, and are such terms as “does not prohibit” a district from taking certain actions too limiting on the powers of districts (other provisions in the bill use the broader term “does not affect” in relation to other district powers).

“Admittedly many people view the bill as just a restatement of the current situation regarding landowner rights and groundwater district powers, which somewhat begs the question why groups pushing the bill even care about its passage now. Fortunately those groups totally failed in their attempt to get a bill through the House to establish a “ vested” right of groundwater ownership. Assuming that the Senate concurs in the House version of the bill or that a conference committee accepts the basics of the House language, the jettisoning of the concept of a “vested” right to groundwater is a major positive outcome, rejecting any absolute right of ownership that would have thoroughly undermined necessary management of groundwater resources by districts.

“The bottom line is that regardless of the passage of this bill, Texas needs to come to grips with the need to manage our groundwater resources on a sustainable basis for future generations. Ultimately a landowner can’t build a fence around a natural resource such as groundwater. It’s a shared resource even if a landowner has certain rights to the use of that resource. Those are realities that no piece of legislation can change. We will ignore those realities at our peril.”

The fast-growing city of McAllen, Texas, is about to take over the regional Hidalgo County Water Improvement District, and its provisions of water and water rights in the area. That is partly courtesy of state Senate Bill 978, which eliminates the district and sends its assets to McAllen.

The Hildalgo district isn’t pleased with the idea.

The district controls 9,852.60 acre feet of agricultural water rights, and in mid-May its board declared 1,300 of that amount “surplus,” available for sale. It said it would begin accepting bids immediately and open them on June 15. The estimate was that it could generate $3 million per acre foot.

That in turn drew a sharp legal response from McAllen. It went to court, and on May 27 obtained a temporary restraining order against the sale. The order said that the facts “show that a significant and immediate harm would result to the plaintiff and the water users of Hidalgo County if the status quo were permitted to change pending a further hearing.”

A hearing was set for June 10.

The Bureau of Reclamation has issued the Record of Decision for the South Coast Conduit/Upper Reach Reliability Project which involves construction of a second pipeline with appurtenant facilities that roughly parallel the existing South Coast Conduit from the South Portal of Tecolote Tunnel to the Corona Del Mar Water Treatment Plant in Santa Barbara County, California.

The Record of Decisions documents Reclamation’s decision to issue a specific permit for additions or alterations to Reclamation-owned conveyance and distribution facilities. The ROD also documents the issuance of an easement authorizing pipeline construction, and operation and maintenance, within Reclamation rights-of-way to the Cachuma Operation and Maintenance Board (COMB).

The purpose of adding a second pipeline is to increase operational flexibility, reliability, and conveyance capacity, as well as provide COMB the ability to perform regularly scheduled inspections and maintenance to one pipeline while the second pipeline remains operational. COMB intends to start construction beginning in November 2011.

Other federal and state agencies are involved in various permits required to construct and operate a project of this magnitude, including the U.S. Army Corps of Engineers, the Regional Water Quality Control Board, and the California Department of Fish and Game. COMB intends to begin construction this fall, consistent with permit requirements and the Mitigation and Monitoring Plan (an attachment to the ROD).

Two former Las Vegas-region Nevada water officials in May were charged with a complex series of indictments saying that they pocketed $1.3 million for helping a wealthy property owner improperly obtain water headed for the thirsty Las Vegas area.

Arraignment was set for June 2.

Robert Coache, 52, a state waster official, and Michael Johnson, 51, a former hydrologist for the Virgin Valley Water District, had been hit with charges ranging from bribery and extortion to official misconduct and money laundering.

They ar charged with having been paid through a company called Rio Virgin LLC; the man alleged to have been behind the payments, John Lonetti Jr., was not charged.

Coache and Johnson have said the transfer issues had been misunderstood and that no water theft occurred.

Central Arizona Project Board of Directors President Pam Pickard and General Manager David Modeer represented CAP on May 24 at a joint hearing of the U. S. House of Representatives Water and Power Subcommittee and the Indian and Alaska Native Affairs Subcommittee. Modeer is scheduled to testify at the hearing, and will provide information about CAP, Arizona’s single largest resource for renewable Colorado River water supplies, and its relationship with the Navajo Generating Station.

“The future of the Navajo Generating Station is now uncertain,” according to CAP Board President Pam Pickard. “EPA (US Environmental Protection Agency) is set to release new emission regulations for NGS this year. Their decision could cause NGS to close, significantly raising the cost of the Colorado River water we deliver to 80 percent of Arizona’s population.”

CAP relies on NGS for nearly all of its energy needs. The coal-fired Navajo plant was constructed as a dedicated source of electricity for CAP and provides very cost-effective power supplies. The EPA is seeking to improve visibility at a number of regional national parks and monuments by mandating controls on nitrogen oxide emissions at NGS. The plant owners have already installed effective controls at a cost of more than $45 million, but EPA favors a much more expensive technology that could cost more than $1 billion to install.

NGS faces other future uncertainties, including the renewal of land and water leases. Rather than risk a huge and potentially unrecoverable $1 billion investment, the NGS participants may consider closing the plant. CAP would then need to meet its energy needs through other means.

“It’s important that Congress and the Obama Administration recognize the impact the EPA decision on NGS emission controls would have on CAP and its customers,” stated Modeer prior to the hearing. “Developing and maintaining an affordable and reliable CAP water supply has transcended Arizona’s partisan political divisions since the 1940s, and our state government and congressional delegation are once again unified in their desire to resolve this issue.

Reversing a district court – not SRBA Court – decision, the Idaho Supreme Court on May 26 said that the Idaho Department of Water Resources has authority under Idaho law to impose term conditions on Idaho Power Company water licenses even if the permit didn’t include the condition.

The case, Idaho Power Company v. Idaho Department of Water Resources, concerned right 03-7018, at the Brownlee Dam on the Snake River. It was decided originally by 3rd District Judge Susan Weibe.

The case stemmed from the company’s application in December 1975 for a hydropower right at Brown (at Washington County). The department approved it the next month, and said the water had to be applied to beneficial uses by February 1980. Idaho Power eventually asked for an extension on that, but said in August 1980 that the beneficial use was underway.

During that same period, the legal wrangling that led to the Swan Falls decision early in the 80s – and implicated water rights across much of the Snake River basin – was underway. The Supreme Court recalled, “As a result, Idaho Power filed a lawsuit against the State and various water users, seeking a determination of the validity of its water rights at the Swam Falls Dam and seeking a ruling that its water rights were not subject to future upstream depletion. One of the other issues in the case brought by Idaho Power involved a subordination clause in the federal license that Idaho Power had obtained for its Hells Canyon Project. The district court held that the subordination clause in the federal license applied to all of Idaho Power’s water rights used for hydropower purposes at all of its facilities on the Snake River watershed, including its facilities at Swan Falls. On appeal, this Court reversed the district court’s holding in that regard, and remanded the case for further proceedings.” Much of that activity growing out of Swan Falls changed the legal and water landscape of the region.

Then, the Supreme Court noted, “On November 16, 2007, the Department issued a preliminary order approving a license for water right no. 03-7018. The license contained the following term condition: The diversion and use of water for hydropower purposes under this license is subject to review by the Director after the date of expiration of the Federal Energy Regulatory Commission license for Brownlee Dam. Upon appropriate findings relative to the interest of the public, the Director may cancel all or any part of the use authorized herein and may revise, delete or add conditions under which the right may be exercised. This term condition was not included in the original permit. Idaho Power subsequently filed a protest and petition for hearing, objecting to the inclusion of the term condition in the license. Idaho Power argued that because the condition was not included in the water right permit, the term condition was unlawful.”

Idaho Power later pulled its protest but did ask for a judicial review, saying the department didn’t have authority to insert a new term condition in the license.

The Supreme Court said flatly that the department had the authority:
“In this case, the statute is unambiguous, and it is unnecessary for this Court to engage in statutory construction because the plain language of I.C. § 42-203B gives the Department the authority to include a term condition in either a permit or a license. As mentioned above, I.C. §42-203B(6) provides, ”The director shall also have the authority to limit a permit or license for power purposes to a specific term. ” I.C. § 42-203B(6) (emphasis added). The Legislature’s use of the disjunctive “or” specifically gives the Department the authority to include a term condition at the licensing stage, not just at the permitting stage as Idaho Power contends. Furthermore, it is important to note that the statute specifically states, “[s]ubsection (6) . . . shall not apply to licenses which have already been issued as of the effective date [July 1, 1985] of this act.” I.C. § 42-203B(6). In other words, the Legislature included a grandfather provision in the statute that prohibits the Department from adding a term condition in any license issued prior to the statute’s enactment. Importantly, the Legislature did not include any provision limiting the Department’s authority to insert a term condition in a license, such as Idaho Power’s, that is issued after the statute was enacted.”

In a related point, the court said, “it appears that Idaho Power is arguing that it obtained a vested water right akin to a license prior to the effective date of the statute, and because the statute specifically prohibits the Department from including term conditions in licenses issued prior to the statute’s enactment, the Department lacked the authority to include the term condition in Idaho Power’s license. On the other hand, the Department argues that Idaho Power did not have a vested right in the water until it received the license from the Department.”

[see the SRBA Digest for more.]

An ocean-front county – on the Pacific Ocean – is looking into building a bottled water business.

Coos County in Oregon has been economically hard hit for more than a decade, especially after federal funding on which local government services have relied began to evaporate a few years ago.

On May 18, the county commission met with a local water master to look into feasibility. Afterward, Commissioner Cam Parry told local reporters, “So far it looks pretty good. Our Watermaster was very encouraging as far as being able to utilize the water rights.”

Among other considerations, the county was looking into partnering with a company on the project, or just developing it itself, using water rights the county already has.

Representatives Devin Nunes, Kevin McCarthy and Jeff Denham said on May 18 that the House Natural Resources Committee will move forward with legislative consideration of H.R. 1837, the San Joaquin Valley Water Reliability Act. The Subcommittee on Water and Power has scheduled the hearing for June 2, which will be followed by a markup in full committee before the House considers the proposal.

“The days of hiding behind judges, settling parties, and the promise of a new study have passed. Congress needs to enact laws for the people. That means ending the grip on our water supply by obsessed ideologues whose environmental record can only be measured a success if you count increased human suffering as the goal,” said Nunes.

“This is common sense legislation that aggressively tackles our man-made drought and turns the faucet back on for our local farmers and ranchers. I look forward to the hearing and will continue to work to move this vital legislation through Congress so we can help get people back to work,” said McCarthy.

“Outdated environmental policies have hindered Valley farmers for too long and this hearing is the next step towards ensuring that our farmers have a reliable water source. With sustainable, predictable resources Valley farmers will be able to grow their crops, create jobs and drive our economy,” said Denham.

The bill also drew plenty of criticism. From the Bay Institute, on May 13:

Congressman Devin Nunes, the southern San Joaquin Valley Republican lawmaker who accuses environmentalists of being Communists and attacks water officials who negotiate environmental agreements as sell-outs, has introduced a new bill that would eliminate or weaken most protections for the collapsing Bay-Delta ecosystem.

HR 1837, the San Joaquin Valley Reliability Act, introduced on May 11, would completely upend the existing system of environmental safeguards and water rights law. The bill, co-sponsored by Representatives Jeff Denham and Kevin McCarthy, proposes to:

Shield federal and state contractors who export water from the Delta from any requirements to protect endangered species that are stronger than the Bay-Delta Accord of 1994, which was negotiated before the population collapse of Bay-Delta fisheries beginning in 2000 that led to the adoption of stronger new protections for chinook salmon, delta smelt, and other species. HR 1837 would jettison these protections, override numerous state and federal environmental laws, shift the burden for protecting the Delta environment and water quality from junior export contractors to more senior water rights holders, and pull the rug out from current efforts to develop a comprehensive ecosystem and water supply solution for the Delta.

Repeal the historic agreement to restore fisheries and flows to the dewatered San Joaquin River below Friant Dam. HR 1837 would substitute a “restoration” program to release a mere trickle of water – a tiny fraction of what is needed to bring back the river’s once great salmon run – and prohibit the state of California from adopting its own restoration requirements.

Gut key provisions of federal water reform law – the Central Valley Project Improvement Act – by blocking the Act’s most significant reform, the allocation of 800,000 acre-feet of project supply to ecosystem restoration, unless a substitute supply is provided to contractors by 2016; removing the requirement to use tiered pricing to promote conservation; and putting constraints on the use of the Restoration Fund created to support salmon restoration and other projects.

“If enacted, HR 1837 would have us tackling the looming extinction crisis for the Bay-Delta with little more than a band aid and a get well card,” said Gary Bobker, program director at The Bay Institute. “Californians deserve better from their elected officials than recipes for undoing a generation of environmental reforms.”

The Philadelphia Inquirer has weighed in about the growing battle over drilling water rights and the practice of fracking.

The paper said in a May 19 editorial, “A gold-rush approach to high-pressure drilling for natural gas has no place in Pennsylvania. Especially not in the watershed that quenches the thirst of 15 million people in the Philadelphia region and beyond.

“So, it’s troubling that, despite their own moratorium on drilling in the Delaware River basin, interstate regulators are moving ahead on preliminary requests by some drillers to pull millions of gallons of water from rivers to the north.”

The paper also noted that, in the development of fracking operations, ” it would make more sense for the commission to focus first on determining whether gas drilling can be done safely in the Delaware basin, if at all. The arrival of this industry with its potential boost to the state’s economy has been marred too often by a drill-now, regulate-later mentality. It wasn’t until several years into the gas boom that Harrisburg boosted drilling fees and strengthened safeguards.

“This week, the state’s largest operator – Chesapeake Energy Corp. – agreed to a record $1.1 million fine for contaminating private water supplies in Bradford County, and for a tank fire at a well site in Washington County.”