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• Evolution of western surface water doctrines• Idealized water rights hierarchy• Water Law Case Studies
– Navigability• Santa Cruz case history
– Tribal Adjudications• Gila River Indian Community
– GW-SW Interactions• Verde River case history• Subflow
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Bottom line: one-page summary• First in time, first in right; No equity.• Surface water rights depend on a basic hierarchy.• CWA protection requires a significant
connectivity (nexus) of chemical, physical and biological factors that affect downstream traditionally navigable waters.
• Winters doctrine conveys significant water rights to federal reservations and are the basis of many tribal adjudications.
• SW and GW are connected – magnitude and timing of effect might be arguable.
• How to determine ownership and amount?– Unlike many commodities:
• Naturally renewing• Hard to package – always on the move• Can be degraded for secondary users• Highly variable flows in most Western rivers• Groundwater is out-of-sight, diffuse and mobile
• Gold Rush Mining Act of 1866- Protects the appropriative rights of miners and other users- Allows you to stake a claim - without ownership of property
• Amendment of 1870-Miners are vested- Protects them from homesteaders
Miner pans for gold in CA around the turn of the century
“The essence of the doctrine of prior appropriation is that, while no one may own the water in a stream, all persons, corporations, and municipalities have the right to use the water for beneficial purposes. The allocation of water rests upon the fundamental maxim "first in time, first in right." The first person to use water (called a "senior appropriator") acquires the right (called a "priority") to its future use as against later users (called "junior appropriators").” Source: http://profs.lp.findlaw.com/water/water_1.html
No Equity:During times of drought, when allocated water exceeds river flow, junior appropriators may not receive their allocation- even if they lie upstream of senior appropriators …or if their use is more socially important, economically more valuable or more efficient.
Needed when waters controlled by more than one countryThree types:
(a) Local customs(b) International treaties(c) Decisions from international tribunals
International agreements supersede all other water allocations!
When Kansas and Colorado have a quarrel over the water in the Arkansas River they don't call out the National Guard in each state and go to war over it.
They bring a suit in the Supreme Court of the United States and abide by the decision. There isn't a reason in the world why we can't do that internationally.
Federal Reserved Water RightsThese are water rights created when federal lands are withdrawn from the public domain (e.g. national parks, wildlife refuges, national forests, Native American Reservations, Military Reservations)
Federal Reserved Rights differ from State appropriative rights in that:(a) They are not lost by non-use
(b) Priority date is established when land was withdrawn
(c) Measure and limit are defined by “ the amount of water reasonably necessary to satisfy both existing and foreseeable future uses of water for the primary purposes for which the land is withdrawn”
(d) Beneficial use not required in all cases13
Water Rights DifferencesPrior Appropriation Winters Doctrine
State FederalExpress intent: Diversion necessary Implied: diversion/BU not necessary
Priority date: first used based on date reservation createdLost by non-use (5 yrs) Open-ended – not lost or diminished by time
Amt: Beneficial use
a. Amt needed to satisfy the future & present needs of the reservation
b. Not based on present needsc. Practically irrigable acres (AZ v. CA)
US v. NM1978
Winters only reserved water for the “Primary Purpose” of a federal reservation
Gila V2002
Indian reservations not subject to primary / secondary purpose test b/c of Federal goal of self-
sufficiency and self-determinationRejects PIA: tribes have legitimate water needs for: comm/ind, residential, recreational, cultural,
How does prior appropriation differ from previous methods of water rights?
• Ownership of property provides no right to water• Assumes water flowing naturally is a public
resource until allocated• Ownership based on amount and time of usage• Abandonment will lead to forfeiture• No concept of equity or the common good• Water can be used anywhere as long as use is
“beneficial”• The right is transferable, at least locally
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During a drought, how is water allocated?
A. Amicable discussions at Townhall meetingB. Second Amendment rulesC. First in time, first in rightD. Federal committee oversight
Meltzer: Santa Cruz ruled "navigable"AZ Daily Star, Fri. 12/5/08
• 12/3/08 ‐ EPA Asst. Adm. of Water Benjamin Grumbles rules portions of Santa Cruz “navigable”
• Based on:– Width and depth of recorded flows– Presence of activities like canoeing and birding– Potential for more water due to on‐going restoration– Susceptible to future navigation; has been navig. in past
• Environmentalists – new guidelines still confusing• Rep Raul Grijalva – earlier decision was part of Bush
• The Montello, 87 U.S. 430, 441-42 (1874). In that case, the Court held that early fur trading using canoes sufficiently showed that the Fox River was a navigable water of the United States. The Court was careful to note that the bare fact of a water’s capacity for navigation alone is not sufficient; that capacity must be indicative of the water’s being “generally and commonly useful to some purpose of trade or agriculture.”
• U.S. v. Appalachian Elec. Power Co., 311 U.S. 377, 416 (1940) (“… lack of commercial traffic [is not] a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation.”
The Clean Water Act - 1972• Sec. 303 Threatened and Impaired Waters List- “Pollutants”
– Total Maximum Daily Load (TMDL) calculations• Sec. 401 Water quality certification- Requires federal agencies to obtain
certification from the state, territory, or Indian tribes before issuing permits that could result in increased pollutant loads to a water body. The certification is issued only if such increased loads would not cause or contribute to exceedances of water quality standards.
• Sec. 404: Regulates the discharge of dredged or fill materials into wetlands and other Waters of the United States. Wetlands are those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil as evidence by hydrology, ecology and soils.
• Sec. 402: National Pollutant Discharge Elimination System (NPDES) program, Covers point sources of pollutants discharging into a surface water body
• Sec. 319: Addresses nonpoint sources of pollution, such as most farming and forestry operations
• CWA: navigable waters = waters of the US– traditional navigable waters include waters which, although used,
susceptible to use, or historically used, to transport goods or people in commerce, do not form part of a continuous wateborne highway
• Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC)– abandoned sand and gravel pit; Limits applicability for isolated waters
that are both intrastate and non-navigable and home to migratory bird• Rapanos v. United States, and Carabell v. United States,
126 S. Ct. 2208 (2006) (jointly cited as Rapanos).– four Michigan wetlands lying near ditches or man-made drains that
eventually empty into traditional navigable waters. Rapanos had backfilled three of the areas without a permit. SC held that Navigable Waters does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall
Post-Rapanos Guidance, 12/2/08The agencies will directly assert jurisdiction over the following waters:
• Traditional navigable waters and • Wetlands adjacent to them• Non-navigable tributaries of traditional navigable waters that are relatively permanent (i.e., that flow year-round or have continuous seasonal flow) • Wetlands that directly abut such tributaries
The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water: • Non-navigable tributaries that typically do not flow year-round or seasonally • Tributary & Adjacent Wetlands to relatively permanent non-navig. tributary
The agencies will apply the significant nexus evaluation as follows: • A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if in combination they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters• Significant nexus includes consideration of hydrologic and ecologic factors.
• State of AZ vs. (ANSAC) AZ Navigable Stream Adjudication Com.(2010)
• This appeal involves the long-standing battle to determine who owns the beds of rivers within the State of Arizona, specifically bedlands of the Lower Salt River. The crucial question to be resolved is whether the River was navigable in its ordinary and natural condition.
• If it was navigable, title to the bedlands passed to the State from the federal government at statehood on February 14, 1912, and the State retains title to those bedlands.
• If the River was not navigable, the neighboring riparian owners hold title
• The ANSAC ruled that only the Colorado River in Arizona is navigable.
• The court held in favor of the State, agreeing that the Navigability rule was misapplied.
• 1980 Groundwater Management Plan– Active Management Areas (AMA) – 4– Assured Water Supply: 100 yr supply req. for
subdivisions outside of designated service areas– OK’s xfers of GW betw sub-basins outside of AMA’s– Legitimized withdrawals from Little Chino– 1991 Sec 45-555
• (A) HIA exception, redirect water from Ag to Muni• (E) auth. excess 14 kaf pumping
– 1999 ADWR determined to be “mining GW” –restricted growth of new developments
• SW-GW law– SW: Prior Appropriation: first in time – first in right– GW: reasonable use; Subflow – appropriable GW
• SRP’s Water Rights– 1905, 300 kaf from Verde– 1991 wants Prescott to develop monitoring mitigation plan
• reducing water use in the Big Chino• augment Verde flows with outside of basin water• depends on if pumped water is “subflow”• 2008 ADWR rules that wells are pumping GW; too far from river• SRP faces “uphill battle”; Issues: apportionment of damage, on-
going adjudication, court ruling on cone of depression capture of subflow
• 2008 challenges to Big Chino water (E) Water– 8067 af (ADWR)– 3861 af (sold to Scottsdale)= 4081 af– 45-555(E) applies only to Prescott and thus illegal
• 2008 challenges CV HIA exception– withdrawal should occur from each plot, not single well
• Center for Biological Diversity ESA Concerns– 2004 Intent to sue; 2006 “Save the Verde” campaign– Sec.9:Pumping will destroy critical habitat by harming river– 9th Cir: habitat modification reasonably certain to injure endangered species is
sufficient to warrant a permanent injunction– CBD must show “future harm” is “sufficiently likely”– Incidental Take permit requires habitat conservation plan– Impacts: time, cost, slower growth, les development
• Working Together– Verde River Basin Partnership Act of 2005; Cities won’t join– Upper Verde Watershed Protection Coalition; w/ cities
• “The difficulty the municipalities have had working with local stakeholders to study Verde-related issues reflects poorly on their likely ability to develop a comprehensive mitigation plan, manage a shared pipeline, or implement an HCP.”
• Developing Mitigation Plan and HCP• Mayor Wilson scoffed at the idea of producing a written plan
merely because “we’ve got some eco-nuts telling us to do it.”• Responses to SRP and CBD
2013 USGS Model Scenarios• 2005 base flow ~ 40 kaf/y; LT natural recharge ~ 59 kaf/y• Base flow decreased 4,900 af/y from 1910-2005 @ UVV• Base flow dropped 10,000 af @ LVV• Conservative future scenario –> only ½ “true” water needs
– 3200 af (UV); 6900 af (LV) from 2005-2110
• Effects of Past and Future Groundwater Development on the Hydrologic System of Verde Valley, Arizona– By Bradley D. Garner and D.R. Pool; USGS FS 2013-3016
• Human Effects on the Hydrologic System of the Verde Valley, Central Arizona, 1910–2005 and 2005–2110, Using a Regional Groundwater Flow Model– By Bradley D. Garner, D.R. Pool, Fred D. Tillman, and Brandon T.
Bottom line: one-page summary• First in time, first in right; No equity.• Surface water rights depend on a basic hierarchy.• CWA protection requires a significant
connectivity (nexus) of chemical, physical and biological factors that affect downstream traditionally navigable waters.
• Winters doctrine conveys significant water rights to federal reservations and are the basis of many tribal adjudications.
• SW and GW are connected – magnitude and timing of effect might be arguable.